Volume 6 — New York Appellate Division Reports

<p> Executor'll contract for- the manufacture and sale of an engine—the rule of substantial performance does not apply to it—acceptance presumed from its subsequent retention and use, after a reasonable time for examination—finding necessary to support a judgment presumed.. </p> <p>In an action brought to recover upon a contract, by which the plaintiffs agreed to manufacture and put up in the defendants’ brick yard a steam engine and other machinery, the referee found that the steam engine was not merchantable or such an article as the contract called for, and that it was worth §1,000 less than the contract price, and he deducted that amount from the amount otherwise due upon the contract. It appeared that after the engine was put into use the defendants complained to the plaintiffs that the engine did not work properly, and the plaintiffs then repaired it, but although the defendants continued to make complaints as to its deficiencies, they never returned nor offered to return it.</p> <p>The defendants claimed that the contract had not been substantially performed,' and that a recovery thereunder by the plaintiffs could not be sustained.</p> <p>Reid, that the rule of substantial performance, applicable to building contracts, has no application to executory contracts for the sale or the manufacture and sale of personal property;</p> <p>That in such cases the right to refuse payment or to recover damages, based upon the fact that the article furnished failed to correspond to that called for by the contract, does not survive the acceptance of the property by the vendee;</p> <p>That the vendee, is entitled to a reasonable time for examination, but that if he continues to use the article in his business, as he did in the present case, after he has discovered its true condition, although he continues to complain of it, an acceptance of the article is thereby conclusively established;</p> <p>That although the referee in this ease did not specifically find an acceptance of the engine by the defendants, yet, as the testimony would admit of no other conclusion, the court would, in support of the judgment, presume that such a finding had been made.</p>

<p>Appeal by the plaintiff, Walter S. Carr, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 20th day of November, 1895, upon the decision of the court rendered after a trial at the . Kings County Special Term dismissing the plaintiff’s complaint apon the merits.</p>

<p>Appeal by the defendant, the Larchmont Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of- the clerk of the county of Westchester on the 11th day of May, 1895, upon the decision of the court' rendered after a trial at the Westchester Special Term.</p>

Appeal by the relator, John J. McGinniss, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of March, 1896, denying. his motion for a writ of peremptory mandamus to compel the comptroller of the city of Brooklyn to pay him for his services as custodian of records of the late board of supervisors of Kings county.

<p>Appeal by the respondents, Charles L. Lumb and others, as water commissioners of the city of Poughkeepsie, composing the water board of said city, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Dutchess on the 10th day of February, 1896, directing that an alternative writ of mandamus issue to the respondents.</p>

Motion bv the defendants, Lyman Darrow Calkins and others, for a new trial under section 1001 of the Code of Civil Procedure, upon exceptions taken to the ruling of the court, directing the entry' of an interlocutory judgment of partition and sale, in favor of the plaintiffs, which judgment was entered in the clerk’s office of the county of Kings on the 18th day of October, 1895. This action was brought for the partition of certain lands in the city of Brooklyn.

Appeal by the defendants, John T, Clark and William Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of December, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 20th day of December, 1895, denying the defendants’ motion for a new trial made upon the minutes.

<p>Vendor and purchaser — title derived, through .an administrator’s deed, given in proceedings taken in a foreign State — doubt as to the legality of such proceedings renders the title unmarketable.</p> <p>Upon the trial of an action brought to enforce the specific performance of an executory contract for the exchange of real estate, the defendant having refused to accept the plaintiff’s deed on the ground that his title was defective, it appeared that the plaintiff’s property was situated in the State of Connecticut, the plaintiff having acquired title' thereto under an administrator’s deed, the only authority for which rested upon a statute of the State of Connecticut. This statute allowed a Court of Probate to order a sale of the real estate of a decedent by an administrator, upon his giving a sufficient probate bond, and enacted that “ after the payment of all debts and charges and incidental charges of sale,” any surplus should 'he divided in the same manner as if the real estate itself had been divided. The proceedings in the Probate Court, did not show that the administrator ever gave any bond, nor did it appear that the sale was made to pay debts, and the probate judge testified that his court had no power to sell lands except for the payment of debts, although .there was other evidence to the effect that the Probate Court had such power.</p> <p>Held, that, under the circumstances, sufficient doubt existed as to the plaintiff’s title to the land to render it unmarketable, and that the defendant was' justified in his refusal to accept the deed thereof tendered to him.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the City Court of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1895, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 19th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Addison Crawford, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 2d day of December, 1895, upon the report of a referee after confirmation by the court.</p> <p>This action was commenced by the service upon the defendants, who were executors of John A. Crawford, deceased, of a verified claim for services alleged to have been rendered to the deceased by' the claimant, a son of the said John A. Crawford. The claim was referred under the statute and the referee found in favor of the defendants, dismissing the claim.</p>

<p>Appeal by the petitioner, The Brooklyn Elevated Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered iii" the office of the clerk of the county of Kings on the 29th day of January, 1896, confirming the majority report of'commissioners appointed in the above-entitled proceeding, and the award of damages made by such commissioners.</p>

<p>Appeal by -the plaintiff, Stephen Shangle, from so much of a judgment, of the Supreme Court, entered in the office of the cleric of the county of Kings on the 'Tth day of November, 1895, upon the decision of the court rendered after a trial at the Kings County Special Term, as declines and refuses to allow to him his share of the increase, income and profits of the estate left by Joseph' Shaw, while in the hands of Sybil Shaw. Also, an appeal by the defendants, Daniel L. Hallock, as executor, etc., of Sybil Shaw, deceased, and others, from the whole of said judgment.</p>

<p>Appeal by the plaintiff, James L. Reynolds, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Westchester on the 26th day of February, 1894, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

Appeal by the defendant, Charles R. Macaulay, from a judgment of the City Court of Brooklyn in favor of the plaintiff, entered in the office of the clerk of said court on the 14th day of. December, 1895, upon the verdict of a jury, and also from an order bearing date the 13th day of December, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes*

Appeal by the defendant, The City of Brooklyn, 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 2d day of May, 1895, upon the verdict of a jury rendered after a trial at the Queens County Circuit, and also from an order entered in said clerk’s office on the 28th day of May, 1895, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Matthew Clune, as assignee of John Sheehan for the benefit of creditors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of December, 1895, upon the decision of the court rendered after a trial at the Westchester Special Term.

<p>Partition — an order that the administrator of the common ancestor he made a party, is improper — Laws of 1896, chap. 277; Gode of Givil Procedure, § 1538.</p> <p>During the pendency of an action for partition, brought within-three years after the issuance of letters of administration upon the estate of the common ancestor, his administrator filed a petition with the surrogate for leave to sell the real estate sought to be partitioned for the payment of the debts of the deceased. The plaintiff in the partition suit then applied for an order amending the summons so as to bring in the administrator and also all the general creditors of the estate, which was granted.</p> <p>Held, that the order was erroneous;</p> <p>That the provisions of section 1538 of the Code of Civil Procedure, as it stood prior to the amendment of 1896 (Chap. 277), that “In a partition action -the executors or administrators and creditors of a deceased person who, if living, should be a party to said action, must be made parties defendant,” were not applicable, as the common ancestor was not a person who, if living, should be made a party to the action, as in such case there could be no such action; that that provision applied only to the case of a deceased owner of an undivided share.</p>

<p>Appeal by the defendant, Robert Helmich, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 27th day of May, 1895, upon the decision of the court rendered after a trial at the Rock-land Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment or order entered, in said clerk’s office on the 16th day of April, 1895, granting an injunction in favor of the plaintiff, and also an order granted at the Rock-land Circuit and Special Term on the defendant’s motion made May 20, 1895, for leave to amend his answer and set up a counterclaim.</p> <p>The action was brought to restrain the defendant from continuing to flood, by means of a dam, lands owned by the plaintiff.</p>

<p>Delivery of a deed — declarations of the grantor — possession of a deed by the grantee is presumptive evidence of its delivery — presumption against crime.</p> <p>Declarations of a grantor, made at the time when he executed a deed.and charac- ■ terizing the act which he was then doing, are competent evidence.</p> <p>. Where the grantee in a deed is in possession of the deed; a presumption arises that it has been delivered, and when coupled with proof that the grantor intended that the grantee should have the property, and that the deed was drawn under his direction, justifies a finding that it is a valid deed. ■</p> <p>. The presumption against the commission of crime is so strong that it cannot be overcome except by evidence of a high degree of credibility.</p>

<p>Ta/xation — the exemption from, taxation of land given to the trustees of the Episcopal diocese of Long Island is absolute — constitutional protection of contracts. .</p> <p>Upon an appeal from an order declaring an assessment, imposed upon the real estate of the trustees of the estate belonging-to the Episcopal diocese of Long-Island, to be illegal, it appeared that the party assessed was a corporation created .by chapter 750 of the Laws of 1871, by virtue of which the bishop, and the standing committee for the time being, are created a body politic and corporate, with perpetual succession and power to make by-laws for the management and. control of the property and affairs of the corporation, which was authorized to acquire by gift a tract of land not exceeding 100 acres in Queens or. Suffolk county, not within any city or village, and to hold the same in perpetuity for the uses and purposes of the Protestant Episcopal Church in the diocese of Long Island, the statute declaring that the land “ shall be used" solely and exclusively for such religious, benevolent or charitable purposes in connection with the Protestant Episcopal Church, as the said corporation, with the written consent of the ecclesiastical authority of the said diocese, may from time to time determine, and the same shall be exempt from taxes and assessments.”</p> <p>One James Maurice, in 1878, gave to this corporation the premises in question, eighty-six acres of land in Newtown, upon which no church, hospital or benevolent or charitable institution has ever been erected, but the property has been rented and the revenue has been devoted to the purposes of the diocese, with the approval of the ecclesiastical authority of the diocese. The assessors of the town of Newtown levied an assessment upon the said premises, claiming. that the land was not being used for the purposes mentioned in the act.</p> <p>Held, that the land was not subject to taxation;</p> <p>That the statute contained no restriction as to the use .to' which the land ¡should be put, except that the use should be approved or determined by the ecclesiastical authority of the diocese, and that even this restriction was entirely disconnected from the exemption from taxation;</p> <p>That the exemption was immediate and absolute, and was not dependent upon the extent or duration of the use;</p> <p>That chapter 498 of the Laws of 1898, a general act relative to the exemption from taxation of the real property of religious corporations, did not apply, and that, as there was expressed in it no intention to repeal chapter 750 of the Laws of 1871, a special statute, the latter was still in force.</p> <p>Semblé, that in any-event, as the State, by the act of 1871, invited the gift which had been subsequently made by James Maurice, and had proposed that in case the gift should be made the land given should be exempt from taxation, it was not within the power of the Legislature to take away the exemption by the passage of the act of 1893; that the act of 1871 created, on the part of the State, a contract involving a public purpose, winch was protected by the provisions of the Constitution of the United States prohibiting the passage of any law impairing the obligation of a contract.</p>

Appeal by the defendant; The Village of Ñyack, from a fudgment of the Supreme Court iii favor of the plaintiff, entered in-the-. office of' the clerk of the county of Rockland on the 25th day of September, 1895, upon the verdict of a jury rendered after a trial at the Rockland Circuit, and also from an order entered in said-clerk’s office on the--day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the plaintiff, Harry E. Colwell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Westchester on the 9th day of December, 1895, upon a dismissal of the complaint at the close of the evidence on both sides, directed by the court after a trial at the Westchester Circuit before the court and a jury, and also from an order entered in said cleric’s office on the 18th day of December, 1895, denying the…

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the City Court of Brooklyn in favor of the plaintiff, entered in the office of the clerk of said court on the 27th day of October, 1895, upon the verdict of a jury.</p>

<p>Dedication—filing a map — dividing a farm into blocks and streets, and throwing open the streets to travel —• a formal acceptance thereof is unnecessa/i'y —• revocation of a dedication — the right to revolee a dedication is lost after a user of more than twenty yewrs — tenants in common must all join in an action for damages or to rests'ain a trespass.</p> <p>Where the owners of a farm make and file a map dividing the property into numerous lettered blocks and numbered lots, and separate the blocks by many streets and cross streets, throw these streets open for public travel, and construct or allow fences to be constructed and maintained along their sides, there is abundant evidence to sustain a finding of a dedication of the streets to the public use.</p> <p>Where such streets are used by the public for highway purposes during a period of more than twenty years, and are frequently worked by the public authorities, an acceptance of the streets is made out, and no formal act of acceptance upon the part of the public authorities is necessary.</p> <p>A change of plan as to the streets in a part of the area mapped does not necessarily involve a change of plan as to all the streets, and proof of the opening, fencing and long-continued use of a particular street negatives the idea that the original owner's intended in this respect to revoke the original dedication.</p> <p>A dedication of lands to public use as a highway can be revoked where there has been no acceptance, and where no public or private injury will result from the revocation.</p> <p>But the right to revoke a dedication is lost where the dedication has already been perfected by a user of more than twenty years, and by the frequent working of the street by the authorities.</p> <p>Tenants in common must all join in actions to recover damages for trespass on lands, and the same rule applies to a suit in equity to restrain a trespass.</p>

<p>Adoption — an adoption, prior to the statutory provision therefor, game no right of inheritance—proceedings for probate of heirship, when not presumptive evidence in an action of ejectment—an amendment on the trial bringing in a new cause of action, not permitted.</p> <p>The adoption of children was unknown to the common law of England and exists in the States of the Union solely by virtue of statute.</p> <p>Prior to the passage of chapter 830 of the Laws of 1873, the first act passed in this State relative to the adoption of children, there was no general method of adoption which gave a child a right of inheritance, although some special statutes then existed which authorized particular charitable institutions in this State to place children committed to their care with persons who consented to take the children by adoption.</p> <p>The provisions of.section 13 of chapter 830 of the Laws of 1873, declaring that “ Nothing herein contained shall prevent proof of the adoption of any child heretofore made, according to any method practiced in this State, from being received in evidence, nor such adoption from having the effect of an adoption hereunder,” apply only to prior adoptions which were authorized by some special statute at the time when they were made, and have no application to a method of adoption not authorized by any statute.</p> <p>Where it clearly appears that a child was attempted to be adopted by a method, not authorized by law, proceedings taken in a Surrogate’s Court for the probate of heirship to establish her right of inheritance, are not presumptive evidence in her behalf of her right to inherit, in an action subsequently brought by her to recover possession of thereat estate of which her alleged ancestor by adoption was seized.</p> <p>Where the plaintiff in such an action claims merely as an adopted child, it is erroneous for the court, upon the trial of the action, to permit an amendment of the complaint alleging an agreement to adopt by virtue of which the plaintiff became the owner of the land in controversy, since such an amendment either changes the cause of action or adds a new cause of action.</p>

<p>Transfer of firm property to a corporation—when in fraud of creditors of the firm— hindering creditors—decision of trial court, when sustained.</p> <p>' Where debtors make an assignment of their property with the intention merely of delaying their creditors in the prompt collection of their debts, this purpose is as fatal to the assignment as though it had been actually intended to defraud the creditors.</p> <p>The transfer by an insolvent firm of all their tangible property to a corporation, formed by the members of a partnership, with a view to having it acquire all the firm assets, made without any consideration beyond the issue of stock in the corporation for such assets, and without the assumption by the corporation1 of any of the debts of the firm, is a transaction which clearly indicates an intent to hinder the firm creditors, and, before it will be sustained, requires a satisfactory’ explanation.</p>

Appeal by the plaintiff, Annie A. Gilmore, from a judgment of the City Court of Brooklyn in favor of the defendant, entered in the office of the clerk of said court on the 31st day of December, 1895, upon a dismissal of the complaint at the conclusion of evidence on hoth sides after a trial before the court and a jury, and also.from an order bearing date the 13th day of December,' 1895, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made…

Appeal by the defendants, Mary Oharman and another, from an order of the Supreme Court, made at the Dutchess Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of May, 1896, as' resettled by an order entered in . said clerk’s office on the 22d day of May. 1896, granting the plaintiff’s motion for an injunction pendente lite; also from an order entered in said clerk’s office on the 7th day of May, 1896, granting a preliminary…

Appeal by the defendant, The City of Brooklyn, 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 4th day of February, 1896, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 5th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, John P. Schenck, 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 3d ■day of April, 1896, allowing the plaintiff to withdraw an appeal taken by him to the Court of Appeals; also, from an order of the Supreme Court, made at the the Kings County Special Term and ■entered in the office of the clerk of the county of Kings on the 20th -day of May, 1896, denying the defendant’s motion to punish the ■plaintiff’s attorney for contempt, and also denying the defendant's motion to vacate an order preferring the cause upon the calendar :for trial. ^</p>

<p>Appeal by the relators, Philip J. Sheridan and others, from an order of the Supreme Court, made at the Kings County Special Terra and entered in the office of the clerk of the county of Kings on the 11th day of May, 1896, denying their motion for a writ of peremptory 'mandamus, directing the respondent to restore them to their respective positions in the department of city works of the city of Brooklyn.</p>

Appeal by the defendant, The City of Brooklyn, from 4 judgment of the Supreme Court in favor of tlie plaintiff* entered in the office of the clerk of the county of Kings on the 12th day of March, 1896, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 24th day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of Yonlcers, 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 11th day of April, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term, declaring invalid and setting aside an assessment for local improvements levied by the defendant upon the' plaintiff’s property.</p>

<p>Commissioners to determine whether a street railroad shall he constructed — if their report is unfavorable the Appellate Division cannot authorize the construction of the road.</p> <p>The provisions of section 18 of article 3 of the Constitution of the State of New York of 1894, that the consent of the owners of one-half in value of the property bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such railroad shall first be obtained, or, in case the consent of such property owners cannot be obtained, that the Appellate Division in the department where it is proposed to construct a railroad may appoint commissioners to determine whether the railroad ought to be constructed or operated, and that their determination, confirmed by the court, may be taken in lieu of- the consent of the property owners, do not give to the Appellate Division any power in the matter where the report of the commissioners is unfavorable to the construe1 tion of the road.</p> <p>It is only a favorable report, confirmed by the court, which can be taken in lieu of the consent of the property owners.</p>

<p>Appeal by Samuel Beck, 'superintendent of the poor of Westchester county, 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 2d day of May, 1896, denying his motion to vacate a warrant of attachment theretofore granted against him.</p>

Appeal by the Staten Island Electric Railroad Company, purchaser of the mortgaged premises sold under the decree of foreclosure in the above-entitled action, 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 Richmond on the 19th day of May, 1896, denying its motion for a writ of assistance.

<p>Account stated — acquiescence depends on hnowledge—proof of fraud—good faith between partners required.</p> <p>The essence of an account stated is the knowledge of the facts which enter into it, as it is from that knowledge that the law infers acquiescence.</p> <p>To give to an account rendered the force of an account stated, because of silence on the part of the receiver of the account, the circumstances must be such as to justify an inference of his assent to its correctness.</p> <p>Where accounts are rendered by certain of the persons engaged in a joint adventure to their associates, which do not give to the latter their proper share of the profits, and such accounts are received by the associates without knowledge of that fact, and the persons rendering the account subsequently state their understanding of the agreement to be such as to lead the other parties to believe the accounts to have been made up on a basis other than is the fact, fraud is established, and the doctrine of acquiescence has no application.</p> <p>Where an agreement, in its essential features, creates a partnership, the law requires from both parties the utmost good faith and honesty in the transaction of business.</p>

Appeal by the defendant, Frances Edwards, 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 Suffolk on the 13th day of September, 1895, adjudging the defendant in contempt for disobedience to a judgment made in an action between the plaintiff and defendant; also from an order made at the Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 23d day of…

<p>Appeal by the defendant, The Harvey Steel 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 16th day of November, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 18th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Discovery of looks, etc.— tending to establish a crime-—-Statute of Limitations — discovery granted unless the defendants show that looks are destroyed or prove the manner in which possession was lost.</p> <p>The objection that a proposed discovery of certain books and papers compels the ' persons defending the action to furnish against themselves evidence which tends to establish the commission of a crime is completely answered by the fact that any prosecution for the crime is barred by the Statute of Limitations.</p> <p>Where an application for such a discovery is made it will not be defeated by allegations contained in the affidavits of the defendants that neither of them has in his possession or under his control the books and papers in question.</p> <p>Where the fact that the hooks and papers once existed is not denied, the defendants must satisfy the court that they have heen lost or destroyed, or they must indicate the manner in which the defendants lost control or possession of them.</p>

<p> Blander and false imprisonment may be joined, as elements of the same tort. </p> <p>A cause of action for slander and one for false imprisonment may be united in the same action, under section 484 of the Code of Civil Procedure.</p> <p>Upon an appeal from an order denying a motion for leave to amend a complaint, in an action brought to recover damages for slander alleged to have been uttered by the agents and employees of the defendant, charging the plaintiff with theft, by adding the further allegations that, at the time of uttering the slander, the defendants, by their agents, without probable cause, maliciously and illegally detained the plaintiff and deprived her of her liberty,</p> <p>Sold, that the amendment should have been allowed;</p> <p>That injury to the character by language and the same time to the person by physical violence might well be regarded as parts of a single tort, and were so regarded by the rules of pleading at common law.</p>

<p>Interpleader — rival claimants under benefit certificates—certificates not negotiable paper ■—• surrender' to the company not necessa/ry upon a new certificate issued — fraud, — Laws 1885, chap. 175, § 18.</p> <p>Upon an application for an order of interpleader, it appeared that in 1885 the defendant issued a benefit certificate to John McCormick, payable upon his death to his wife, in which certificate he had a right given by statute to change the beneficiaries without their assent, unless the designation had been made in pursuance of some contract, or for value. In 1894 John McCormick substituted four of his children as the beneficiaries; subsequently he substituted six of his children, and in 1895 he made a further change, constituting the plaintiff the sole beneficiary.</p> <p>After his death, in 1896, the plaintiff brought this action upon the certificate, and thereupon the four children of John McCormick, named as beneficiaries in 1894, notified the defendant that they held and claimed under the certificate of that date (which had not been surrendered to the defendant by McCormick, wjio stated to the defendant that it had been lost or destroyed), alleging that any change in the beneficiaries had been procured by fraud. Thereupon the defendant applied for and obtained an order directing it to pay the money into court, and substituting the claimants under the certificate of 1894 as defendants in the action.</p> <p>Held, that the order of interpleader was properly granted;</p> <p>That, notwithstanding the fact that two certificates might be outstanding, but one insurance was effected and one set of premiums paid, and that, if the plaintiff had a right to recover upon his certificate, his rights upon such a recovery could not be defeated or impaired by the fact that the certificate of August, 1894, was left outstanding and unsurrendered;</p> <p>That the substituted defendants could only succeed by showing that the change in the beneficiaries was effected by fraud and undue influence, exercised by the plaintiff upon the insured, and that, if they succeeded in this contention, they would be entitled to recover in the action, whether the certificate of August, 1894, had been surrendered or not;</p> <p>That it was not necessary that the defendant should obtain a surrender of the first certificate before it issued another in its place, the certificates not being negotiable instruments, so as to be valid in the possession of a bona fide holder.</p>

<p>Negligence— decayed poles used for clothes lines—a critical examination as to their condition, not required of the landlord.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that the defendant owned an apartment house in the city of Brooklyn with a yard in the rear, over which he retained the control, and in which there had been erected four poles about six inches in diameter at the base, tapering slightly towards the top and about seven feet high, to which were attached clothes lines. These poles, which were of chestnut, and were supposed to have a life of from eight to ten years, at the time of the accident had been in use for five years.</p> <p>The plaintiff, a child between nine and ten years of age, who resided with her parents in the apartment house, and with the other children of her family frequently used the yard as a play ground, in August, 1894, went into the yard with another child, took hold of a rope attached to the poles, and .stepped one or two steps forward and backward, when the pole fell and injured her.</p> <p>An examination of the pole disclosed that it had rotted away, at the point where it broke, about an inch above the ground, only a slight portion being sound, and there was testimony to the effect that this condition must have existed for about a year, but had not been noticed; although a critical examination would, a cursory examination would not have disclosed this defect.</p> <p>Held, that the plaintiff could not recover;</p> <p>That there was no duty imposed upon the defendant to make a critical examination of the pole, as it was one of those common structures or appurtenances, used in or about buildings, which, unless so old as to cause persons to suspect its soundness, is never subjected to more than a cursory examination.</p> <p>Hatch, J., dissented.</p>

<p>Appeal by the petitioner, Austin B. Fletcher, 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 Richmond on the 21st day of May, 1896, denying his application to intervene in the above-entitled action and be made a party thereto.</p> <p>Appeal by the Electric Power Company of Staten Island and another 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 Richmond on the 21st day of May, 1896, denying their application to direct the receiver of the Electric Power Company of Staten Island to appeal to the Court of Appeals from an order of affirmance of the Appellate Division of the Supreme Court of a judgment of foreclosure in the above-entitled action.</p>

Appeal by the plaintiff, Hannah Revelski, from a judgment of the City Court of Brooklyn in favor of the defendant, entered in the office of the clerk of said court on the 2'Ttli' day of January, 1894, upon the verdict óf a jury, and also from an order entered in said clerk’s office on the 26th day of January, 1894, as amended by an order entered in said clerk’s office on the 23d day of April, 1894, denying the plaintiff’s motion for a new trial made upon the minutes, and…

<p>Transfer tax— a legacy to asister of less than §10,000 is “ specifically exempted,” and is not to he considered in determining whether the taxable property which passes amounts to §500 — Laxos of 1893, chap. 399, §§ 1, 3, 33.</p> <p>Where a testator leaves an estate of §839.16, giving §414.58 to Ms sister and §307.39 to each of two nephews, the legacies to the nephews are not taxable under chapter 399 of 1893, as the legacy to the sister (being less than $10,000) is “specifically exempted” within the meaning of that statute.</p>

<p>Appeal by Seth L. Keeney and others from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of May, 1896, confirming the report of a referee appointed to take testimony and report to the court, and' directing William R. Dykman, as receiver of the Commercial Bank, to bring suit against certain directors of the said bank.</p>

<p>Negligence — evidence of an'accident at the seme railroad crossing eight yea/rs before is inadmissible — negligence cannot be imputed from the absence-of a flagman or of ■</p> <p>Where an action is brought to recover damages resulting from the death of a child caused by the alleged negligence of the defendant, it is improper to allow a witness to state that he was-injured at the same crossing eight years before. ,-</p> <p>Such evidence,, though competent in -certain cases, to show that either a place or ■ an appliance was dangerous, is not proper to show:</p> <p>1st. That many accidents have happened at a crossing, as the railroad company has a legal right to maintain its railroad at such crossing; or,</p> <p>2d. That a corporation was negligent in its manner of running, a train upon a former occasion, as it does hot tend to. prove that it was guilty of negligence at the time of the accident in question.</p> <p>Evidence of an accident which occurred eight years ago is too remote, and-is also objectionable, where, as in the present case, it appears that the child was killed while approaching the crossing from the west,, while fhe witness in question was injured when approaching it from the east.</p> <p>A railroad corporation is entitled to a charge that no negligence can be imputed to it from the absence, of a flagman; or from its. failure to maintain gates at a . crossing. •'</p> <p>It is not enough that the court, while denying a request for such a charge, states to the jury that there is no statutory obligation requiring a railroad corporation to maintain these safeguards.</p>

<p>Grimes—assault in the second degree—discharging a pistol loaded with hlank cartridges is not such, as matter of law—Penal Gode, § 218, suhd. 4.</p> <p>Whether a person who discharges a revolver loaded with blank cartridges at another, some seventy feet distant from her, comes within the definition, in subdivision 4 of section 218 of the Penal Code, of a person who willfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm, and is guilty of an assault in the second degree, is a question of fact for the jury.</p> <p>It was the intention of the framers of the Penal Code that the words “likely to produce grievous bodily harm” should qualify the word “weapon” as well as the words “other instrument or thing,” and whether the weapon in question was likely to produce such harm is a question of fact which must be submitted to the jury.</p>

<p>Appeal by the defendant, The City of Brooklyn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the 'county of Kings on the 1st day of April, 1896, granting the plaintiff’s motion to amend the summons and complaint by bringing in one Emily Colder as a party defendant in the action.</p>

<p>Appeal by John Trelford, the plaintiff in the first above-entitled action, from an order of the Supreme Court, made at the Rings ■ County Special Term and entered in the office of the clerk of the county of Rings on the 28th day of February, 1896, denying his motion to continue an injunction pendente lite, and dissolving said injunction.</p> <p>Appeal by William Lakeland, the plaintiff in the second above-entitled action, from so much of an order ■ of the Supreme Court, made at the Rings- County Special Term and entered in the office of the clerk of the county of Rings on the 28th day of February, 1896, as permits the defendant to construct and operate a"single- ■ track electric trolley road upon that portion of Neptune avenue in which it formerly maintained a single-track road.</p> <p>Appeal by the defendant, The Coney Island and Brooklyn Railroad Company,, from so miich of said order made' in .the second' above-entitled action as restricts it to the construction and operation of a single-track electric trolley road upon that portion of Neptune avenue in which it formerly maintained a single-track railroad. •</p> <p>The decision of the Appellate Division, in reference to which this motion is made, is reported in 5 App. Div. 464.</p>

<p>Appeal by the defendant, The Brooklyn City 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 12th day of December, 1895, upon the verdict of a jury rendered after a trial at the Kings County Circuit, and also from an order entered in said clerk’s office on the 6th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the contestants, Maria L. Kay and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21th day of June, 1895, admitting to probate a paper propounded as the last will and testament of David F. Beck, deceased.-</p>

<p>Appeal by .the defendants, Herman Kountze and others, from an order of the • Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10tli day of April, 1896, continuing a preliminary injunction during the pendency of the action.</p> <p>The action was brought to restrain the defendants from selling, ■fourteen shares of the stock of the Cataract General Electric Company, which had been pledged to them as collateral security for - a loan of $15,000, and which they proposed to sell in order to repay themselves a-balance alleged to be due upon the loan. The complaint alleged that the pledge as made was usurious.</p>

<p>Appeal by the defendant, Lizzie JVI. Van Brunt, from a judgment of the City Court of Brooklyn in favor of the plaintiffs, entered in the office of the clerk of said court on the' 15th day of June,. 1895, upon the decision of the court, rendered after a trial at a Special Term of said court, setting aside a conveyance from the defendant Charlotte Van Brunt to the defendant Lizzie M. Van Brunt, on the .ground that it was made with intent to hinder, delay and defraud creditors. .</p>

<p>Appeal by the plaintiff, George H. Fowler, from an order of the County Court of the county of Queens, entered in the office of the ■clerk .of the county of Queens on the 4th day of May, 1896, affirming a ruling of the county clerk of the county of Queens to the •effect that the plaintiff was not entitled to recover any costs and •disbursements against the defendant in an action, and denying the motion made by the plaintiff .to tax the same.</p>

<p>Gravesend—• a new method is enacted by chapter 639 of 1895 to issue bonds to pay for local improvements in the part of that town annexed to Brooklyn—chapter 171 of 1893 repealed.</p> <p>Chapter 639 of the Laws of 1895, entitled “An act to provide for the payment of the cost of local improvements and bonds issued for the payment thereof in the late town of Gravesend, now the thirty-first ward of the city of Brooklyn,” established a new and complete scheme, applicable to the changed condition of things arising out of the annexation in 1894 of the town of Gravesend to the city of Brooklyn, for the issue of bonds for all local improvements (except sewers) not yet paid for in the late town of Gravesend. This statute was manifestly intended as a substitute for the method prescribed by chapter 171 of the Laws of 1893, which must be deemed to be repealed so far as the right to issue bonds for a local improvement in the town of Gravesend is concerned.</p>

<p>Appeal by the plaintiff, Mahlon B. Oakley, 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 4th day of October, 1895, amending an order for an additional allowance and also the judgment roll in the action.</p> <p>The Special Term at which the order appealed from was made was held by Mr. Justice Dykman. The cause was tried before Mr. Justice Barnard.</p>

<p>Appeal by the defendant^ James Levalie, from a judgment of the. County Court of Kings county in favor of the plaintiff,' entered in the office of the clerk of the county of Kings on the 26th day of March, 1896, upon the verdict of a jury convicting him of the crime of assault in the second degree.</p>

Appeal by the relators, Edward J. McKeever and another, 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 21st day of April, 1896, denying.their application for a peremptory writ of mandamus directing the commissioner of city works of the city of Brooklyn to award to them the contract for cleaning the streets, etc.

<p>Grand larceny —proof that the money was loaned ■— a motion to set aside the verdict as not in accordance with the evidence is equivalent to a motion for a new trial — a denial of the motion is reviewable on an appeal from the judgment.</p> <p>Upon the trial of a prisoner charged with the crime of grand larceny, letters of the complainant were introduced in evidence, which referred to the money which the defendant was accused of stealing in such terms as to indicate that it had been loaned to him. It also appeared that the complainant had verified a complaint in which she alleged that such money had been loaned to the defendant.</p> <p>Held, that a verdict convicting him of that crime was against the evidence, and that a motion made, after the jury had rendered their verdict, to set the verdict aside as not in accordance with the evidence, must be deemed to have been equivalent to a motion for a new trial under subdivision 6 of section 465 of the Code of Criminal Procedure,, and that the denial of the motion was brought up for review by an appeal from the judgment of conviction.</p>

<p>Railroad Law—what is a sufficient notice of hea/ring of an application to the local authorities of a milage for permission to lay down tracks — the method of procedure is discretionary with such authorities — review of such discretion.</p> <p>Where a railroad company has made application to the local authorities of a village for permission to lay its tracks in the village, the provisions of section 92 of the Railroad Law (Chap. 565 of' the Laws of 1890, as amended by chap. 676 of the Laws of 1892), requiring that public-notice, of the time and place when such application will be first considered, be published for at least fourteen days in a newspaper published in the village, and if- there be none, then' daily in two daily newspapers if there be two, if not, in one, published in . the city nearest such village, are sufficiently complied with if such notice be • published once a week for four consecutive weeks in a newspaper, which, although not printed in the village, is circulated and given to the public at the village, and whose publishers have their place of business and mailing list there.</p> <p>The method of procedure upon the hearing of an application by a railroad company for the consent of the local authorities of the village to the laying of its tracks in such village, is not defined in the Railroad Law", and rests in the sound discretion of such authorities.</p> <p>Where, therefore, it appears that a reasonable opportunity has been afforded to all parties to be heard, thé court will not interfere and restrain action by the authorities of the village, because the board adjourned without taking final action upon the application, and did not continue to adjourn to hear interested parties, unless it be clearly shown that the right to such hearing has been unnecessarily denied, and that actual prejudice and damage has resulted or will result to the parties seeking redress.</p>

<p>Application by The Kings, Queens and Suffolk Railroad Company for the certificate required by section 59 of chapter 565 of the Laws of 1890, as amended by-chapter 676 of the Laws of 1892, upon a certified copy of all maps and papers on file in the office of the Board of Railroad Commissioners of the -State of New York, said board having, by an order made at the Capitol (in the city of Albany on the 21st day of January, 1896, denied the application of said railroad company for such certificate.</p>

<p>Appeal by the defendants, William S. Rogers 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 Queens-on the 2d day of May, 1896, appointing a receiver of the rents, issues and profits of the premises described in the complaint in the above-entitled action which was brought to foreclose a mortgage upon certain real estate and its appurtenances.</p>

<p>Appeal by the defendant, Adalirie A. Smith, as administratrix, etc., of Charles D. Blish, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the •office of the clerk of the county of Kings on the 16th day of May, 1896, continuing an injunction heretofore granted which enjoined the defendants and their attorneys from distributing-certain funds under the" control of Adaline A. Smith, as administratrix, etc., of Charles D. Blish, deceased.</p> <p>This action, which was one for money had and received, was brought by the plaintiff as sole trustee of the persons interested in the estate of one William H. Angel, deceased, to recover a sum received by the defendant Smith as administratrix of Charles D. Blish,, deceased, to which the plaintiff claimed to be entitled.</p>

<p>JSquity suit — the decision must .direct the judgment amd award costs to designated parties—receiver of a judgment debtor—his property in insurance policies — hostile claimants against the insurance company—■validity of transfers of insurance policies after the appointment of a receiver—the court will not order payment over by one rival claimant who has been paid, to another claimant.</p> <p>fThe amendments made to section 1022 of the Code "of Civil Procedure in 1894 and 1895, permitting the court to file a decision stating concisely the grounds upon which the issues have been ■ decided, and directing the judgment to he . -entered thereon, and, if costs are discretionary, designating the party to whom •costs are awarded, have not dispensed with the requirement that the judgment which is to be entered shall be directed, and that, in cases where costs are discretionary, the party entitled to the costs shall be designated.</p> <p>A decision containing no direction for judgment beyond the words “Judgment for the defendants, with costs,” made in an equity suit, is not sufficient to authorize the entry of judgment.</p> <p>The practice would, in such case, require that a judgment entered under such circumstances should be vacated and the case be remanded to the court which tried it for decision, but where it appears that the justice who tried the case is disqualified from acting by reason of his designation as a member of the Appellate Division, it must be held that there has been a mistrial.</p> <p>The receiver of the property of a judgment debtor, whose life is insured, has a property right in the policy of insurance, provided that the insured himself had such a property right., and that the policy had a surrender value at the time when the receiver was appointed.</p> <p>A life insurance company brought an action of interpleader against a receiver of a corporation, who claimed that the deceased policy holder, who had been the general manager and treasurer of the corporation, had used its funds in the payment of premiums upon the policy in question, and against the widow of the assured, who claimed the policy under an assignment from the assured. Before the action came to trial the defendants therein agreed upon a compromise, and the amount of the policy, which had been paid into court by the company, was paid over to them. Subsequently, a receiver, who had been appointed in proceedings supplementary to execution against the assured, brought an action against the same parties, who were made defendants in the action brought by the insurance company, asking to have the assignment of the insurance policy set aside and to have the proceeds thereof received by said defendants, impressed with a trust in his favor as receiver of the assured.</p> <p>Held, that the defendants in the action brought by the insurance company, if they acted in good faith in the assertion of their claims, acquired a good title to the moneys received by them in that action;</p> <p>That the rule that a claimant thus situated must' obtain the money upon his own independent claim, in using which he does not prejudice his competitors, and that he should not exercise any right or title of which he has wrongfully divested his competitors, did not apply to this case, in which the transfer of the policy of insurance, alleged by the receiver of the property of the assured to have been fraudulent, occurred after his appointment as receiver, and could not, therefore, in a legal sense, have been prejudicial to him;</p> <p>That such transfer being void as to him, he could still, notwithstanding the payment already made by the insurance company, enforce his claim, if a just one, against the company, the company having had notice, • before the money was paid over in the action of interpleader brought by it, of the existence of this claim on the part of the present plaintiff.</p>

<p>Appeal by the plaintiff, Salomon Strauss, as administrator, etc., of Pauline Moses, deceased, 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 27th day of April, 1896, upon a nonsuit granted by the court after a trial before the court and a jury at the Orange Circuit.</p> <p>The action was brought to recover damages resulting from the death of the plaintiff’s intestate, which was alleged to have been caused by the negligence of the defendant.</p>

<p> ^Jasticds Court—when the issuing of alias summons does not avoid the Statute of Limitations. </p> <p>• In-an action brought in Justiceis' Court to recover for goods sold and delivered, the last sale and delivery having been made on September 21. .1889; it appeared . that the justice issued a summons on September 10, 1895; which was ‘‘ dismissed ” by him upon consent of the parties on September 25,1895 ; that upon the latter day he issued a second summons, which was served, but was also “ dismissed” on October 30, 1895, and that on the latter day he issued a third .summons upon the return day of which- the defendant j.oined -issue and pleaded . the six-year Statute of Limitations.</p> <p>Held, that the defense was valid</p> <p>That the first and second summons were inoperative and did not bring the case within section 2883 of the Code óf Civil Procedure, it not appearing from the' return of the constable -that the first and second summons- had not. been served.</p>

<p>Liquor Tax Law — in part a revenue law—cm existing licensee cannot procure cm injunction to prevent its enforcement.</p> <p>The complaint and affidavit made in an action brought to procure an injunction, alleged that the plaintiff was a retail liquor dealer, possessing a valid license unrevoked and unforfeited; that, under the “Liquor Tax Law” (Chap. 112 of the Laws of 1896), it was provided that the license should cease on the 30th day of June, 1896, unless he paid a further sum of money and gave a bond in double the amount of the additional payment; that if the plaintiff failed to do this and continued the business, it was made by statute the duty of the defendant to arrest, prosecute and enjoin the plaintiff from further carrying on business. The plaintiff then alleged that he would not be able to pay the tax nor to give the bond for the reason that he was largely indebted, and he further stated that the enforcement of the law would work irreparable injury to him, for which he had no adequate remedy at-law, and'that it would involve him in a multiplicity of actions, both civil and criminal. He further alleged that the law was unconstitutional, and asked that an injunction issue restraining the defendant from interfering with him or his business.</p> <p>Held, that an injunction was properly refused;</p> <p>That the 13th section of the law indicated that its purpose was, in part at least, to raise revenue to be paid in certain proportions to the State and to the towns and cities thereof;</p> <p>That it was a rule of public policy that courts would not interfere by injunction ' to restrain the collection of a tax unless the case was brought within some acknowledged head of equity jurisprudence, nor enjoin its collection on the ground that the statute purporting to authorize the tax is invalid unless the invalidity of the statute had-been previously decided;</p> <p>That an injunction would not be granted to restrain the defendant and his agents from making an arrest for an alleged violation of an existing law;</p> <p>That injunctions are granted to restrain the enforcement of a revenue law only in exceptional cases where such enforcement would cause a multiplicity of suits or irreparable injury, or where there exists no adequate remedy at law;</p> <p>That in the present case there was no reason to suppose that more than one proceéding would be necessary to test the validity of the present law; that if the plaintiff was arrested or enjoined he would have an opportunity to be heard and to raise the question as to the constitutionality of the law, while if the defendant interfered with him in any other way an action would- lie against the defendant, provided the law under which he acted was unconstitutional.</p>

Appeal by the defendants, Jacob Wirth, Jr., and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 16th day of May,-1896, upon the decision of the court rendered after a trial at the Kingston Special Term.

<p>Appeal by Jennie E. Wells and others from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 6th day of September, 1895, confirming the report of the commissioners appointed by the court to ascertain and determine the compensation to be paid to owners or persons interested in the real estate proposed to be taken for the purpose of carrying out the plan adopted by the grade crossing commissioners of the city of Buffalo, confirming said report and fixing the amount of damages, costs and expenses to be allowed to the landowners; also an appeal by The Grade Crossing Commissioners of the City of Buffalo from so much of said order, wherein the court does not, or refused to, fix the amount of damages, costs and expenses allowed by law, to be allowed the petitioners, The Grade Crossing Commissioners herein.</p>

<p>Accounting and settlement — action for conversion, not maintainable without a rescission—charge of fraud in the original transaction—remedies.</p> <p>Where matters of account have been in dispute, and a settlement has been reached in which one of the parties has yielded up á disputed claim, the other cannot charge fraud and bring an action upon the original transaction, ignoring the settlement, unless there has been a rescission.</p> <p>In such a situation the party aggrieved may rescind or bring an action in equity for a rescission, offering to return that which is equitable,' or he may bring an action for damages predicated upon fraud in the settlement itself.</p> <p>In an action brought by the assignees of Brodie L. Duke to recover damages for the conversion of 400 shares of stock, it appeared that Brodie L. Duke had employed the defendant and the firm of Hubbard, Price & Co. as his agents under powers.of attorney, arid that these parties co-operated with each other in procuring loans for Duke and in other matters; that subsequently the defendant rendered a statement of his account against Duke, to which Duke objected, and referred the matter to Theodore II. Price of the firm of Hubbard, Price & Co., who finally effected a settlement under which the defendant gave up the claim in dispute, a considerable portion of which was conceded to have been well founded.</p> <p>Soon after this settlement had been made Hubbard, Price & Co. rendered their account to Duke, who then ascertained that the defendant had in his account charged 400 shares of stock as having been delivered to Hubbard, Price & Co., which had not been credited to Duke in the account of the latter firm, they contending that the stock had never been received.</p> <p>Held, that the action could not be maintained without a rescission of the accounting between Duke and the defendant;</p> <p>That the case was not like those cases where it had. been held that, upon the discovery of an erroneous item in an accounting, it was not necessary that the, whole account should be opened and readjusted, but that a readjustment might be had of the particular mistake, as in those cases the mistake was admitted, while in this case the defendant at all times claMed that the stock in question had been delivered to Hubbard, Price & Co., and that the account which the defendant rendered to Duke containing the charge in question had been in the hands of Hubbard, Price & Co. for some time prior to the settlement made between Duke and the defendant.</p>

<p>Appeal by the relator, the Manhattan Railway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of April, 1896, dismissing a writ of certiorari to review the proceedings of the tax commissioners of the city of New York in assessing, for the purpose of taxation, its personal property for the year 1895.</p>

<p>Motion by the defendant, the Bank of Commerce, Indianapolis, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury' rendered by direction of the court after a trial at the New York Circuit.</p>

Appeal by the plaintiff, Charles' I. Bolles, 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 17th day of March, 1896, denying his motion to vacate and set aside an order substituting Richard D. Schell as defendant in the action, in-place and stead of Jacob A. Cantor, as receiver of The Piqua Club Association.

<p>Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of April, 1895, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Appeal by the plaintiff, George Strassner, from a judgment- of the -Superior Court of the city of New York in favor of the defendant, ■entered in the office of the clerk of said court on the 16th day of December, 1895, upon the verdict of a jury, and also from an order 'entered in said clerk’s office on the 18th day of December, 1895, 'denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, the Fanners’ -Rational Bank of Annapolis, from an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 23d day of December, 1895, denying its motion to vacate an order for the examination of the president of the plaintiff before- issue joined.</p>

<p>. Appeal by Henry Gr. Harris from an order of the 'Supreme Court, made at the Hew York Special Term,, bearing date the 17tli day of February, 1896, and entered in tlie office of the clerk of the county of Hew York directing him tó deposit in court a certain sum to the credit of Mary Callan within a time specified, and upon his default in so doing committing him for contempt to confinement in the county jaü.</p>

<p> Supplemental answer — leave to serve it, discretionary— a former adjudication need not be pleaded. </p> <p>It is within the discretion of the court to grant or refuse leave to serve a supple: mental answer in an action, and such an application will he refused Whenever it appears that injustice will he done hy permitting such an answer to he served.</p> <p>•Where it is desired to interpose,, hy such supplemental answer, the plea of a former, ad judication, no prejudice can arise to the defendant from, a denial of the motion, as the former adjudication would be as effective as evidence if not pleaded as it would be if- set up, in the answer. "</p>

<p> A verdict on conflicting proofs, controlling. </p> <p>In an action brought to recover upon two promissory notes discounted by the plaintiff, the only question presented was whether the notes constituted a liability of the defendant or of his wife. Jennie L. Lissner, the wife of the defendant, Jacob L. Lissner, was engaged in business, and in 1884 she opened an account with the plaintiff, and gave to her husband a power of attorney, which was delivered to the plaintiff. Subsequently and up to 1891 the defendant, in pursuance of such power of attorney, signed notes and checks “ J. L. Lissner.” The president of the plaintiff testified that in 1891 the defendant notified the plaintiff “ that-the account was Ms in the future; * "x" * that his would he the signature alone,” and that in reliance upon that statement the discounts were made. There was proof that the plaintiff did not, in 1891, change the account of Jennie L.'Lissner upon its books; she then gave no directions for such" a transfer, and no new signature was obtained or left with the bank; both the ledger account and the pass books remained as they had been before 1891. Some evidence was given that the notes in question belonged to. Jennie . L. Lissner, and were received by her in the course of the business which she conducted.</p> <p>Held, that it was a question of fact whether the signature “ J-. L. Lissner” indicated the defendant or his wife, and that upon this question the verdict of the jury-was controlling.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 5th day of March, 1896, directed to Theodore Roosevelt and others, composing the hoard of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the dismissal of the relator from the police force of the city of New York.</p> <p>The specification was that the relator “ failed to prevent or discover a burglary at 131 Wooster street, occupied by George Verhaeren as a restaurant and liquor store, the side glass in basement being broken and 6,000 cigars taken therefrom, valued at $600, during his tour of patrol duty, from 12 midnight to 6 a. m., December 23d, 1895.” Having been served with the charges, the relator appeared and was tried, and at the same time four other patrolmen were tried on the same charges. No witnesses were sworn. In addition to the statement of the owner of the premises and his bartender, that a light was burning in the saloon on the night of the burglary, and that in order to see a break in the glass a person would be obliged to go down the stairs leading to the store in question, the' only other testimony was that of the acting captain, who said : “ Since I preferred those charges against the officers, I have arrested the persons who committed the burglary, and found out the exact time the burglary was committed. It was committed at 12 o’clock at night, and that would leave only Officers McDermott and Burns responsible. * * * The burglary was committed at 12 o’clock Monday night. * * * Q. (By the Commissioner.) How are the others let out? A. Nobody on post but McDermott from 12 to 6, and Burns from 6 to 8, because the burglar told me the exact time that he committed the burglary —■ at 12 o’clock — and Officer McDermott went on at 12 o’clock and stayed to 6, and Burns went on at 6 and stayed to 8. Q. The burglary was committed at about 12 o’clock on the night of Saturday? A. Yes.” Rule 197 of the police department provides: “ Such pertinént testimony as shall be offered for and against the accused shall be, except in trivial cases, taken on oath.”</p>

<p>Wrongful discharge — evidence of the term of service of other employees—presumption from, continued, employment as to length of service.-</p> <p>In an action brought to recover wages alleged to have become due after the plaintiff’s wrongful discharge from the defendant’s employment, it appeared that one Bliss, the person with whom ,the plaintiff’s contract had been originally made, had subsequently entered into partnership with the defendant, and the disputed questions were whether the defendant had assumed the conlract, and-whether the hiring was by the week or by the year.</p> <p>Held, that it was erroneous to allow the plaintiff to introduce the evidence of other employees that they were employed by the year;</p> <p>That it was also erroneous for the court to decline to charge the jury, as requested by the defendant, that the fact that the plaintiff remained in the employment of the firm after June 1, 1893, the date of the formation of the partnership, at the same wages as those which he had received before that time, raised no presumption that the firm had employed him to May 1, 1893, the date when his contract with Bliss expired.</p>

Appeal by the defendant, Francisco Oassata, from a judgment of-conviction of the Court of General Sessions of the Peace in and for the city and county of New York, rendered on the 19th day of June, 1895, upon the verdict of a jury convicting him of the crime of manslaughter in the first degree. The indictment charged the defendant with having on the 4th day of February, 1895, shot and killed one Francisco Barcia.

Appeal by the relator, Joseph R. Thompson, 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 13th day of February, 1896, denying his motion fqr a peremptory writ of mandamus.

' Appeal by the plaintiff, the W. T. Merserau Company, 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 12th day of October, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the New York Circuit,' and also from an order entered in said clerk’s office on the 18th day of October, 1894, denying the plaintiff’s- motion for a. new trial…

Appeal by George ~W. Debevoise and another, as executors, etc., of Joseph P. Hale, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 15th day of January, 1896, directing them to render and file an intermediate account of their proceedings as executors of Joseph P. Hale,-deceased. This is a proceeding to compel the executrix and executor of Joseph P. Hale, deceased, to file an intermediate account.

<p>Appeal by Theodore Moss from an order of the Supreme Court, made at the Rew York Special Term and entered in' the office of the clerk of the county of Rew York on the 1st day of February, 1896, directing a reference to take testimony upon tbp return to a writ of habeas corpus.</p>

Appeal by the plaintiff, Hermon L. Ensign, from a judgment of • the Superior Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said court on the 22d day of Hovember, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of Hovember, 1895, denying the plaintiff’s motion for a new trial made upon the minutes:

<p>Appeal by the plaintiff, Stephen B. Fisk, from • a judgment" of the Superior Court of the city of Few York in favor of the. defendant, entered in the office of the clerk of said court on the 4th day of June, 1895, upon the decision of the court rendered after a trial before the court without a jury dismissing the complaint.</p>

<p>Appeal by the defendant, Henry M. Cornell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of November, 1895, upon the verdict of a jury rendered after a trial -at the New York Circuit, and also from an order bearing date the 26th day of November, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon, the minutes.</p>

<p>Bona tide mortgagee — not bound by a secret trust between the record owner and a third person — he need not make the alleged cestui que trust a party to a foreclosure suit.</p> <p>A bona fide mortgagee is not bound by the terms of any secret or undisclosed trust existing between the holder of the record title and a third party, and is not required to make such third party, claiming to be a cestui que trust, a party ■±o an action to foreclose the mortgage.</p>

<p>Bemoval of a veteran—waiver of irregularities in the form of the cha/rge — the witnesses need not he swwn.</p> <p>Where an employee of the department of public works of the city of Hew York, an honorably discharged Union soldier and volunteer fireman, who is cited to appear and answer to a charge of “neglect of duty,” which does not specify in what the alleged neglect of duty consists, appears and takes part in the inquii'y into, such charge, cross-examining witnesses and making a statement on his own behalf, he cannot, in the absence of anything showing that he has suffered a wrong, complain that the charge was not sufficiently specific, or that the witnesses were not sworn.</p> <p>Semble, that the statute does not require that the witnesses examined in such a proceeding should be sworn.</p>

<p>Receiver of booh accounts, pendente lite, not appointed where the plaintiff’s success is improbable and the defendants are solvent.</p> <p>In an action brought by judgment creditors of one Rosenstein to set aside his transfer of certain book accounts to the defendants Weingarten, in which it was alleged that the transfer was fraudulent, and that the indebtedness to secure which the transfer was made was fictitious, the allegations of fraud were put in issue by the defendants Weingarten,-whe alleged that they were accommodation indorsers of Rosenstein’s paper and were engaged- in a large business and were worth §150,000.</p> <p>Held, that it could not be said that there was any such probability of the plaintiffs succeeding as would justify the court in disturbing the Weingartens in their possession of the accounts, and that, furthermore, as it appeared that the Weingartens were abundantly responsible, the appointment of a receiver was not necessary for the protection of the plaintiffs’ rights.</p>

<p> New trial—newly-discovered evidence—confidential communications—an answer never served. </p> <p>Upon the hearing oí a motion made by the defendant in an action, for a new trial upon the ground of newly-discovered evidence, it appeared that the defendant’s testatrix was, in 1883, induced to marry the plaintiff, who was at that time much addicted to drink, upon the promise of his father to give her, among other things, §15,000 in cash, which was never received by her from Mm; that in 1885 the plaintiff’s father, who was supposed to be a widower, died leaving a widow by a second marriage, who brought an action to recover her dower interest in his estate, which was defended by the plaintiff and his wife through a Mr. Oliver, who was succeeded by a firm of other lawyers "who were substituted in his place.</p> <p>The plaintiff claimed that one Hudson, the managing clerk of this firm, induced him, wMle he was intoxicated, to transfer all his interest in his father’s estate to one Bruce Fenn, an associate of Hudson’s, who immediately conveyed the property to the plaintiff’s wife.</p> <p>Subsequently a judgment was rendered in the dower action in favor of the widow, and on the sale in pursuance of that judgment the defendant’s testatrix, as the purchaser of the property, succeeded in having credited upon her bid a judgment recovered by her against the plaintiffs father’s estate for the §15,000 promised her in consideration of her marriage to the plaintiff. Upon the final settlement of the dower action the plaintiff’s wife, being the apparent ■owner of her husband’s interest in the property sold, received §14,000, that being the amount (less the widow’s dower interest) paid by her for the prop•erfcy, in excess of the credit which she obtained for the judgment upon the §15,000 claim. The plaintiff also claimed that Hudson brought an action for divorce for his wife, and that while that action was pending Hudson procured his intoxication and shipped him to Australia.</p> <p>'The present action was brought to recover the value of the plaintiff’s share in his father’s estate, of which he claimed his wife defrauded him. The jury ' rendered a verdict in favor of the plaintiff.</p> <p>Upon the application for a new trial the defendant showed that the Mr. Oliver, who had been employed by the plaintiff and his- wife when the action for dower was brought, afterwards brought an action in equity against the plaintiff -and his wife’ to have a judgment which he had recovered for his services in the action of dower made a lien upon the premises of the plaintiff’s father, the title to which was then vested in the plaintiff’s wife, charging in his complaint that 'the conveyances, now attacked in this action, by the plaintiff, were made to ■enable the plaintiff to raise funds to defend the dower suit and to pay his debts, sind that it had been agreed between the plaintiff and his wife that, when that suit was concluded and his debts were paid, she would convey one-half of what remained to the plaintiff. This action of Oliver was settled.</p> <p>After the trial of tins present action there was found among -the papers of the plaintiff’s wife, the defendant’s testatrix, an answer sworn to by the plaintiff (which had, however, never been served), which contained an explicit denial ■of all that the plaintiff had charged in'the present-action respecting the instruments by which he lost his title to his father’s estate. This answer affirmed the -validity of the transfers which the plaintiff now attacks, and also alleged that ■ his wife had paid to him. more than §14,000, a sum which he stated was largely in excess of what was allowed her when the widow’s action, for dower was settled.</p> <p>.JHeld, that the newly-discovered evidence was important and justified a new trial; •</p> <p>"That the pleading in question was not to be regarded as a confidential communication between the plaintiff and his attorney, as it had not been found in, nor produced from, the papers of the attorney who drew it, who had since died, but had been found among the papers of the plaintiff’s wife, whose title was confirmed by it, and whose estate had a right to make use of it to repel any .'assault upon the title.</p>

<p>Action f<»• conversion — examination of the plaintiff before trial, to show a foi'-mer action against another defendant— examination of a party, when not allowed before issue. '</p> <p>Where, in an action brought by a corporation for the conversion of a quantity of tin, the .defendants have reason to believe that the plaintiff before the com mencement of the present action had sued another, person for the purchase-price of the same tin, they are entitled to examine, before trial, the proper representatives of the plaintiff and to have an inspection of the original complaint in the action brought by-the plaintiff against the third person, to enable: them to prepare an answer intelligently and to. avail themselves of -any defense: growing out of such sale.</p> <p>"Where an examination before trial is not required for the purpose of preparing a. pleading, and issue has not been joined in the action, it is improper to order-such an examination, unless facts are alleged which show that it is important to have the testimony desired taken before, instead of at the trial.</p>

<p>Appeal by the defendant, Horace Craighead, individually and as executor, etc., of Robert Craighead, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the-17th day of October, 1895, upon .the verdict of a jury rendered by direction of the court after a trial at the Hew York Circuit.</p>

<p>- Appeal by the defendant, Charles H. T. Collis, commissioner of public works of the city of New York* from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1896, directing that a peremptory writ of mandamus issue commanding him as commissioner of public works of the city of New York to reinstate the relator in the position held by him in the department of public works, from which he had been discharged.</p> <p>The relator was appointed in 1891 by the then commissioner of public works, inspector of street openings to be made by the Equitable Gas Light Company. He was an honorably-discharged veteran sailor. He was discharged by the present commissioner of public works August 23, 1895, and another man was appointed in his place. December 27,1895, the relator demanded that the present commissioner of public works reinstate him in the office. December 31, 1893, he made his affidavit and served notice of the motion upon which the order appealed from was made. This was more than four months after his discharge.</p>

<p>Appeal by the plaintiff, Sigmont Simon, from so much of a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of . the clerk of said court on the 31st day of December, 1895, upon a decision of the court reiti dered after a. trial at a Special Term thereof, as adjudges and decrees, that the complaint be dismissed upon the merits. The judgment also dismissed a Counterclaim in the answer of the defendant, without costs.</p> <p>The action was brought by the husband against the wife for a separation from bed and board, and the custody of the two minor children of the marriage.</p> <p>The defendant by her answer denied the allegations of the complaint and by way of counterclaim demanded a .separation from her husband,, and that the custody of the children be awarded to her. The ground of both causes of action for separation was abandonment., . .. .</p> <p>The court, after a,somewhat protracted trial,, held that the case was not one in which a decree of Separation should be made in favor of either party, and declined to pass upon the question as to the custody of the. children. The custody of the children had, before the. conrmencement of this action, been awarded to the wife, in proceedings by writ, of habeas corpus, and the children were in her custody at the time of the trial and judgment in this case.</p>

<p>Appeal by the plaintiff, Herman .Siefke, Jr., from a judgment of the Superior Court of the city of Hew York in favor of the defendant, entered in the office of the clerk of said court on the 2d day of December, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 18th day of Hovember, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for alleged malicious prosecution. The ground of the dismissal of the complaint was that there was a failure of proof as to the want of probable cause. The burden of proof upon this issue was upon the plaintiff, and the question involved is, whether upon the whole case, the evidence of both parties, the jury would have been justified in drawing the inference and finding the fact that there was a want of jirobable cause.</p> <p>The defendant also contends that there was a failure of jn’oof as to the termination of the prosecution, and that the judgment for this reason should be sustained, although the trial court may have improperly taken the question of want of probable cause from the jury.</p> <p>The sixth and seventh subdivisions of the complaint, referred to in the opinion, are as follows:</p> <p>“ VI. That afterwards, and on the 23d day of Hay, 1893, at the Second District Police Court in said city of Hew York, an examination was had before the said Police Justice John B. Vooehis, on the said charge of perjury made by the defendant herein, as aforesaid. That the plaintiff and the defendant herein were present at and took part in said examination, and that said Police Justice John It. Voorhis, at the conclusion thereof, adjudged the defendant not guilty of the said charge of perjury and fully acquitted him of the same, and discharged him.</p> <p>VII. That since said 23d day of May, 1893, when the plaintiff was acquitted of the said charge and discharged as aforesaid, the defendant has not further prosecuted said complaint, but has abandoned the same, and that said complaint and charge made by the defendant against the plaintiff as aforesaid is wholly ended and determined in favor of the plaintiff as aforesaid.”</p>

<p>Appeal by the plaintiff, Giacomino Yitto, 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 22d’. day of April, 1896, denying his motion to revive the action and to-substitute the executors under the last will and testament of the: defendant as defendants, in the place of the defendant, who died, after the commencement of the action.</p> <p>The action was brought to recover damages for personal, injuries-to the plaintiff alleged to have been caused by the negligence of the defendant. Before the death of the defendant the action had been tried, and a verdict rendered in favor of the plaintiff for $750, and the verdict had, upon motion of the defendant, been set aside and a: new trial ordered, and from this order an appeal had been taken - to-the Appellate Division of the Supreme Court. The defendant died just after this appeal had been taken, and thereupon the motion was ■ made, and the order entered from which the present appeal is; taken.</p>

<p>Legacy — when not vested—execution of a power of appointment.</p> <p>Courts, when construing a will, are required to carry into effect the intention of a testatrix as far as possible, but the intention must be collected from the will itself.</p> <p>The leading inquiry, which determines the question whether or not a legacy vests, is directed to the point whether the gift is immediate while the time of payment or of enjoyment only is postponed, or whether the gift is future, and dependent upon the happening of some contingency.</p> <p>If futurity is annexed to the substance of the gift the vesting is suspended, but if futurity appears to relate merely to the time of payment, the legacy vests at once in the beneficiary at the death of the testator, nor will vesting be prevented by the fact that the will also creates a trust.</p> <p>In an action brought to procure a construction of the will of Georgia Fargo, which attempted to exercise a power of appointment given to her by the will of her father, William G. Fargo, it appeared that Georgia Fargo, by her will, stated her intention to execute the power of appointment given her, and then proceeded to bequeath the property to her executors in trust, directing them to divide the same into four equal parts and hold one in trust for each of the four children of her sister Mrs. Squiers. The testatrix directed that the whole income should be accumulated until the beneficiaries reached majority, or until the death of any beneficiary if he died before reaching majority; that after reaching majority, and until he arrived at the age of twenty-five years, he was to receive the income, and at twenty-five years half of the principal; that after he arrived at the age of twenty-five years, and until he reached the age of thirty years, he was to receive the income, and at the latter age the rest of the principal. The testatrix further provided that in case any of the beneficiaries died before reaching the age of thirty years the fund should be paid to their issue, if any, and if there was no issue it should be paid to the persons appointed by the will of the beneficiary, if any, and if there was no issue and no appointee, payment should be made to the brothers and sisters of the beneficiary, if any; and if there was no issue, no appointee and no brothers or sisters, then the fund should pass to two nieces of the testatrix. It further appeared that the wall of William G. Fargo effected an equitable conversion of the property in question into personal property, and that the four children of Mrs. Squiers were born after the death of William G. Fargo.</p> <p>Held, that as no estate could be given or limited to any person, in execution of a power, which such person would not be capable of taking under the instrument creating the power, the suspension during the lives or parts of the lives of the Squiers children! was invalid, as such children were not in being at the death of William G-. Fargo.</p> <p>That it could not be said, in order to effectuate the testatrix’s intention to exercise the power of appointment, that the legacies to the Squiers children vested absolutely at her death ;</p> <p>That, while it was the intention of the testatrix to provide principally for the Squiers children, it appeared from the provisions of the will that this was not her sole intention;</p> <p>That the provisions as to the course which the property should take, if any of the beneficiaries died before arriving at the age of thirty years, indicated that the testatrix intended to suspend the vesting of absolute title to the property until the children should reach the age of twenty-five years, and again until they reached the age of thirty years, upon the conditions stated, and that it was the intention of the testatrix that, if the children died before these periods, the property should be disposed of, not as belonging to them, but as the property of-the testatrix, passing under her own will-</p>

<p> Bmdence—opinions of experts, from a subsequent examination, that cubes of a dye stuff were separate when shipped. </p> <p>An.expert may testify to an opinion that, when gamhier was shipped from Singa- • pore to New York, the cubes into which it had been formed were free in the hags which contained them, that is to say, were separate from each other, and may reach this opinion from an examination of the gamhier after its arrival in New York.</p>

<p>Appeal by the petitioner, The American Fine Arts Society, 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 14th day of April, 1896, denying its motion fora peremptory writ of mandamus commanding the commissioners of taxes and assessments of the city of' New York to remit and cancel a tax imposed for the year 1895 upon certain real estate in the city of New York owned by the petitioner.</p>

<p>Injunction — restraining individuáis from republishing mercantile agency reports — organizing a corpoi-ation which republishes them is a contempt—punishment of such contempt.</p> <p>The complaint in. an action alleged that the plaintiff conducted a mercantile agency relating to the jewelry trade, and regularly issued publications for the use of its subscribers containing important information respecting the persons engaged in such trade; that the matters contained in such publications were confidential as between the plaintiff and its subscribers, and that the defendants, who were not subscribers, were using and publishing information derived from the plaintiff’s publications. Upon the consent of the defendants a judgment was entered perpetually enjoining the defendants from publishing or issuing in the future any information derived from the plaintiff’s books.</p> <p>Subsequently the defendants employed one Kellar to compile a directory of jewelers, and assigned their rights in such directory and .their contract with Keller to a corporation of which they were the managers and principal stocknolders. The corporation published the directory, which contained matter in violation, of the injunction, and the plaintiff thereupon brought an action against the corporation for an injunction, and instituted proceedings against the defendants for contempt.</p> <p>Upon an appeal from an order adjudging the defendants guilty of contempt and fining them the amount of the plaintiff’s costs, disbursements and counsel fees in the contempt proceeding and in the action against the corporation and also sentencing them to two months’ imprisonment, it was</p> <p>Held, that the judgment in the injunction action restrained the defendants from publishing and "issuing information contained in future publications of the . plaintiff, as well as that contained in past publications, and that it was within, the power of the court to grant it;</p> <p>That the defendants were bound to see to it that their publications contained nothing in violation of the injunction, and that it would be no defense for them to say that they hired a man to compile a list and that they took such list without examination and published it;</p> <p>That the defendants’ fine properly included the counsel fee in the action against the corporation, as such action was the direct result of the defendants’ violation of the injunction;</p> <p>That as it did not appear that the contempt w,as willful the defendants should not be punished by imprisonment.</p> <p>Rumsey, J., dissented.</p> <p>Semble, that if the plaintiff’s publications were literary property, a judgment restraining the defendants from publishing the plaintiff’s future publications would not have been authorized.</p>

Appeal by the plaintiffs, Miles M. O’Brien and another, as receivers of The Madison Square- Bank, from an interlocutory judgment of the Supreme Court in favor of the defendant, Lawrence J.' Fitzgerald, entered in the office of the clerk of the county of Hew York on the 6th day of March, 1896, upon the decision of the court rendered' after a trial at the New York Special Term, sustaining said defendant’s demurrer to the plaintiffs’ amended complaint.

<p>Appeal by the defendant, Matthew Baird, from a judgment of the Supreme Court in favor of the plaintiffs entered in the office of the clerk of the county of New York on the 25th day of November, 1895, upon the report of a referee.</p>

<p>I/iquor Tax Law— constitutionality of the provision prohibiting the giving away of food to be eaten, upon premises where liquor is sold ■—it applied to existing licensees¡ ■ . .</p> <p>The power of the Legislature to regulate the traffic in liquor includes the power to determine the premises upon which liquor shall' be sold and for What other uses, the premises shall be used.</p> <p>The provisions Of the Liquor Tax Law,, forbidding persons to .give .away any food "to he eaten on premises where liquor is sold, are a proper exercise of this power and .do not deprive such persons of either liberty or .property within the meaning Of the-State or Federal Constitutions. . . '</p> <p>It was not the intention of the Legislature to except any class of any individual' ■ from the operation of this prohibition, and it applies to licensees whose licenses were in force when the act went into effect, and governs their conduct during the continuance of the term óf such licenses.</p> <p>There is nothing in any provision of sections 4, 9 and 44 of the Liquor Tax Law which relieves a licensee, holding an unexpired license at the time when this net took effect, from the operation of this prohibition during the unexpiréd term of such license.</p>

<p>. Appeal by Franklin J. Bischoff from an order of the Supreme Court, made at the New York Special Term and entered in the. office of the clerk of the county of New York on the 19th day of March, 1896, adjudging him guilty of a contempt and committing him to the county jail.</p>

Appeal by the plaintiff, Mary E. Buchanan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of Decernher, 1895,- upon the decision of the court, rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint. The action was brought to obtain a construction of the will of William H. Cooper, deceased, and a partition of certain property.

<p>Bills and notes—drawees seeking to recovera voluntary payment of a draft to an indorsee—the plaintiffs must allege and prove that the indorsee is not a bona fide holder for value.</p> <p>Where the drawees of a draft, who have voluntarily paid the same to the payee’s • indorsee,- under such circumstances as would entitle them to recover its proceeds from the maker or payee, seek to recover such payment from the'indorsee they must allege and prove that the indorsee was not a bona fide purchaser for value before maturity.</p> <p>The situation in such a case is materially different from that where the acceptor of a draft refuses to pay and the holder sues, in which latter case, if the acceptor proves that the draft was procured by fraud, the burden is imposed upon the holder of the draft to show that he is a bojiafide holder for value before maturity.</p>

<p>Decedent’8 estate—the claim of an executor must be clearly proved — an executors statements as to services rendered, create no presumption that his testatrix knew of them—possession of a check in favor of an executor signed by his testatrix, on ce bank having no funds for its payment.</p> <p>Claims against the estate of a decedent, especially when presented by an executor or administrator, should not be allowed except upon the clearest legal proof, and where the facts upon which the claim is based are established by very satisfactory evidence.</p> <p>Where a surrogate confirms the finding of a referee that an executor has rendered services to his testatrix, and that a check signed by her and in his possession, created a valid claim against the estate, an exception to the finding raises the question whether there was any evidence sufficient to sustain the finding.</p> <p>The provisions of section 829 of the Code of Civil Procedure prohibit direct, and also indirect, testimony relative to a personal transaction had with a deceased person.</p> <p>An executor may be permitted to testify that he performed certain work in relation to the property of his decedent, but no inference will be drawn therefrom that the deceased either knew of or authorized the performance of the services.</p> <p>The mere possession by an executor of a check, signed by his testatrix, not-dated, the body of it being written by the executor, drawn upon a bank where the testatrix had insufficient funds for the payment of the check, accompanied by proof that the papers of'the testatrix came into the possession of the executor, does not afford satisfactory evidence that the testatrix was indebted to the executor, the pa)Tee of the check, in its amount.</p>

Appeal by the defendants, Charles F. Acltermann and others,, from an interlocutory judgment of .the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of February, 1896, upon the decision of the-court rendered after a trial at the New York Special Term sustaining a demurrer to the second and third defenses contained in their answer.

<p>Appeal by the defendant, The German- American 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 New York on the 12th day of November, 1895, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 4th day of November, 1895, denying said defendant’s motion for a new trial made upon tiie minutes.</p> <p>The action was brought to recover for a loss alleged to have been covered by a fire insurance policy issued by the appellant to the plaintiff’s assignors.</p>

<p>Appeal by the defendant, John G. Prague, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 6th day of December, 1895, from the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 19th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for the breach of a contract to convey to the plaintiff the premises No. 137 West Eighty-sixth street, in the city of New York, free and clear of all incumbrances other than a mortgage for $40,060, bearing interest at the rate of live per cent per annum, held by the New York Life Insurance Company. In accordance with the contract, the plaintiff paid to the defendant the sum of $1,000 upon the execution thereof. He has recovered this sum from the defendant, together with the expenses of examining the title.</p> <p>Further facts are stated in the opinión.</p>

Appeal by Julius H. Eisner and Jacob Sterii, two of the executors and trustees under the last will and testament of Eliza Eisner, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 30th day of January, 1896, denying their motion to remove Mark H. Eisner from his office of executor and trustee under the last will and testament of Eliza Eisner, deceased, and also from an order of the Surrogate’s Court of the…

<p>Appeals—exceptions taleen at a Circuit Court in 1891 and ordered to be heard in the first insta,nce at General Term — such order must be made at the same term and by the same judge — an oral direction is insufficient — the Supreme Court has no power to subsequently order the exceptions to be heard by- the Appellate Division— Constitution of 1894, art. 6, § 6— Code of Civil'Procedure, §§ 2, 769, 1000 (1891).</p> <p>Upon an appeal in an action by the defendant from an order of the Supreme Court, directing that the exceptions of the plaintiff be heard by the Appellate Division, it appeared that the action was tried at Circuit in October, 1891, when the plaintiff requested the court to direct a verdict in its favor for the value of 210 shares of the defendant’s stock, which request was denied and the plaintiff excepted. The plaintiff then moved that a verdict be directed in its favor for the value of 160 shares. “The court then directed a verdict for the plaintiff in the sum of $87,928.80, and ordered the exceptions to he heard in the first instance by the General Term,” and to this direction the defendant excepted. During the same term the defendant entered an order that its exceptions be thus heard.</p> <p>Four years later the plaintiff applied to the Supreme Court at Special Term to have an order entered directing its exceptions to be heard by the Appellate Division, and such an order was made.</p> <p>Held, that there was no authority for the granting of such an order;</p> <p>That under the Code of Procedure as it stood in October, 1891, such an order must have been made at the same term' and by the same - judge who presided at the trial;</p> <p>That, as the courts were independent tribunals, when the October Term of the ' Circuit Court, held in 1891, ended without a direction in writing that the exceptions should be heard in the first instance at General Term, that method of review was ended; a mere oral direction would not be a compliance with the statute;</p> <p>That this action was not pending in a Circuit Court when the Constitution of 1894 went into effect;</p> <p>That there was no authority in the Supreme Court to direct that exceptions taken in a Circuit Court, which had ceased to exist, should be heard before the Appellate Division;</p> <p>That, if the order were to he treated as the formal reduction to writing of the eral direction of the trial judge, then the order was one made in a court which had ceased to exist.</p>

<p>Appeal by the defendants, Eugene O’Sullivan, Vincent J. O’Sullivan, Percy B. O’Sullivan and Ernest P. O’Sullivan, 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 9th day of January, 1896, setting aside the report of commissioners of appraisal and appointing a new commission, and also 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 15th day of January, 1896, amending the said order.</p> <p>This .was a proceeding for. the condemnation of real property under the Condemnation Law embodied in the Code of Civil Procedure (Chap. 23). Under the usual judgment in these proceedings, ■commissioners of appraisal were appointed. These commissioners made an award which, upon motion at Special Term, was set aside and new commissioners appointed. The award was set aside as-excessive. From this order, and from an order amendatory thereof, the defendants roperty owners, appeal.</p>

Appeal by the defendants, Samuel Wallach and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 25th day of March, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1896, denying the defendants’ motion for a -new trial made upon the minutes.

Appeal by the plaintiff, Benjamin F. Parrish, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendant, entered in the office of the cleric of said court on the 11th day of June, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of May, 1895, denying the plaintiff’s motion for- a new trial made upon the minutes.

<p>Divorce—failure 'of a defendant having knowledge of , hut not served with, the order directing him to do so, to pay alimony — the answer may he stricken out.</p> <p>Where, in an action brought by a wife against her husband to procure a divorce, the husband has notice of a motion to compel him to pay alimony, contests it, is defeated, and subsequently leaves the State and fails to comply with the order, he is in contempt of court, although the order may not have been served on him.</p> <p>In such a situation tlie court has power to strike out the answer interposed by the husband; it cannot strike out his notice of appearance, as he is entitled to notice of, and to appear in, all proceedings had in the action.</p>

<p>Deed — recording and delivering it to an attorney for safe-keeping, when insufficient as a delivery to the grantee —right of the grantor to explain her intention.</p> <p>In an action brought to recover the possession of certain premises, it appeared that the defendant Mary O'Gorman was the owner of the premises in question in 1885, when she caused a deed of the premises in which John Doorley, her brother, was named as grantee, to be drawn by her attorney, executed it and asked her attorney to have it recorded, which was done and the deed was returned to her. The consideration of the deed, §1,000, was, so far as appeared, never paid, and the defendant remained in possession of the premises. In 1887 the defendant delivered this deed for safe-keeping to one W. F. Browne, an attorney who was then doing business for her. In 1890 or 1891 John Doorley, who was known to Browne, called upon him, asked for the deed and' Browne handed it to him John Doorley died and devised all his property to the plaintiff, who began this action of ejectment for the recovery of the premiums.</p> <p>Held, that the plaintiff was not entitled to recover;</p> <p>That a delivery of the deed was essential;</p> <p>That while the record of the deed was presumptive, it was not conclusive evidence of its delivery, and that it was competent for Mary O’Gorman to show the circumstances under which the record was made in order to- rehut the . presumption;</p> <p>That its-delivery to a third party in escrow was not a complete delivery, and that . its delivery to the register, for the purposes of record, was not a delivery to the grantee if it appeared that it was not intended to operate as such;</p> <p>That it was proper to show that Mary O’Gorman was endeavoring to provide, in case of her death, for John Doorley, who was her favorite brother, and that she had no intention to then deliver the deed to him.</p>

<p>Power to apportion an estate among designated persons — when it gives a diserétion .as to the method and time of payment to each henefieiavy, hut not as.to the amount.</p> <p>The will of James M. Conner provided, as follows: "1 hereby direct my executors and executor to distribute and apportion to my wife and children, viz.,. ' Josephine Y. Conner,. Eliza Conner, Charles S. Conner, Benjamin F. Conner, ' Alfred Y. Conner and Archibald Conner, my estate, in such manner and time or .times as shall, in their judgment, be for the best interest of my wife and children.” •</p> <p>'The testator nominated his wife and three of his sons, one of whom was an infant! as Ms executors.</p> <p>Meld, that thé estate was left in equal shares to the decedent’s wife and his six children; - •</p> <p>That the term “manner” applied to the method of allotment; that a discretion was given as to the time when the money should be paid over, but not as to the quantity of the estate to be distributed to each beneficiary;</p> <p>That it was not the intention of the testator to bring the estate within section 99 of 1 Revised Statutes, 734, relative to powers, and to allow the executors to allot the whole-estate to themselves, to the exclusion of the other children.</p>

<p>Appeal by the defendant, Joshua S. Piza, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of January, 1896, upon the verdict of a jury rendered by direction of the court, as amended by an order entered in said clerk’s office on the 2Yth day of January, 1896, which judgment dismissed the second cause of action of the defendant’s counterclaim.</p>

Appeal by the defendant, The Public Opinion Company, from an order of the Supreme Court, made at the New York .Special Term and entered in the office of the clerk of the county of New .York on the Ith day of May, 1896, vacating an order for the examination of the plaintiff before trial theretofore granted in the action. Th¿ action was brought to recover upon a promissory note alleged to have been made by the defendant payable to the plaintiff.

Appeal by the defendants, John S. Keyes 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 22d day of May, 1896, directing the trial -of certain issues of . fact .in the action by a jury -and settling the same.

<p>Power to executors to sell but not to mortgage — a mortgage executed by a grantee, to whom the property is conveyed simply that he may execute it, is an evasion of the will and invalid — estoppel.</p> <p>A judgment creditor of William Campbell, deceased .(who held a judgment which was entered after, upon a verdict directed before, the death of Campbell, whose executors were given by his will a discretionary power of sale, but were not given any power to mortgage), knowing the terms of the will, entered into an arrangement under which the executors, without consideration, executed a deed to one Phyfe, of certain real property left by Campbell, and Phyfe executed a mortgage to the judgment creditor, whose law firm drew the papers, and searched the title.</p> <p>In an action brought to foreclose the mortgage,</p> <p>Held, that the mortgage was invalid and was not a proper exercise of the power conferred upon the executors;</p> <p>That the conveyance to Phyfe was given simply to evade the provisions óf the will and to effect the unlawful. purpose of mortgaging the property, notwithstanding the lack of power under the will in that regard;</p> <p>That the transaction was precisely the same as though the executors had given a mortgage directly to the plaintiff as collateral security for his judgment debt;</p> <p>That the plaintiff’s judgment was not a lien upon any real estate of the testator, and that the executors had no power to create a lien upon that real estate in ■ favor of any such creditor of their testator;</p> <p>That the defendants were not estopped from questioning the mortgage of the1 plaintiff, he having given nothing for it, released nothing upon the faith of it, and apparently having lost nothing by accepting it.</p> <p>Note.—The rest of the cases of this term, will be found in volume 7, App. Div,— [Rep.</p>