Volume 6 — Bedell

said city. The facts, so far as material, are stated in the opinion. The discretion of the Supreme Court to grant or refuse a writ of mandamus is not absolute, but is governed by legal rules, and. the order denying the motion is re viewable by this court. (People ex rel. v. Common Council, 78 N. Y. 56; People ex rel. v. Chapin, 104 N. Y. 96; Roberts v. N. Y. El.

<p>1. Forgery—Indictment.</p> <p>If a paper set forth in an indictment and of which forgery is predicated does not, either upon its face or by the averment of extrinsic facts, affirmatively appear to be an instrument which, if genuine, would be operative, the indictment is bad as failing to state facts to constitute a crime.</p> <p>2. Appeal—Code Grim. Pro., section 519.</p> <p>An appeal is given as matter of right from a judgment affirming or reversing a judgment for the defendant on a demurrer to the indictment, by section 519, Code Grim. Pro.</p>

The facts, so far as material, are stated in the opinion. The basis of taxation of the relator is not the par value of its issued capital share stock, but is (the declared dividends, being four per cent, and entire capital of the relator employed in this state) the appraised capital of relator. (People ex rel. v. Roberts, 155 N. Y. 1; People ex rel. v. Morgan, 47 App. Div. 126.) The tax was properly assessed upon the entire capital stock of the relator at par.

<p>1. Murder.</p> <p>The evidence tended to show that when the defendant shot his victim he knew the nature and quality of the act, that he bought a revolver, had it loaded and in readiness for action. He selected a convenient place to watch and went forth to meet her with intent to take her life as he declared, had a clear recollection of the act, etc., and there was no evidence of congenital defect or other disease of the body. Held-that the case was for the jury, that their conclusion was supported by the evidence.</p> <p>2. Same—Intoxication or defendant.</p> <p>Where the defendant deliberately drank himself into a frenzy, the law does not excuse him for that kind of insanity.</p> <p>3. Same—Evidence.</p> <p>The district attorney without repeating the words of a hypothetical question which has just been repeated, says without objection: “ I repeat the defendant’s hypothetical question.” Held that while repetition might have led to a clearer and more certain understanding of the question by both witness and jury, it was not necessary, under the circumstances.</p> <p>4. Same.</p> <p>It is proper to ask whether any fact or any group of facts sworn to is inconsistent with sanity.</p> <p>5. Same.</p> <p>A practicing physician of long experience, who had known defendant for ten years, testified that he saw the shooting and observed the appearance of the defendant at the time; described the whole transaction and stated how the defendant looked and dcted and on being recalled testified that from his appearance and manner at that time he did not see any indication of insanity. Held properly • admitted and not less incompetent because the acts observed were those which accompanied the shooting instead of immediately preceding it.</p>

<p>í. Murder—Evidence.</p> <p>The defendant, after a quarrel with his brother-in-law, M., and a fight in which he claimed he had been stabbed by M., crossed the street to the M. house, and meeting his mother-in-law on the stairs stabbed her fatally. He claimed that he went for the purpose of cutting M., but not to kill him, saw a shadowy form behind the door and thinking it to be M., struck. There was some ill feeling between them. Held .the court was justified in submitting the case to the jury.</p> <p>2. Same—Charge.</p> <p>The court in charging the jury said, “ You must consider all the circumstances, the force of the blow * * * and that the blow was in fact a fatal blow.” On exception the judge stated that he did not mean to say that it was struck at a vital part as a matter of fact; that that was a question for the jury—and he modified his charge accordingly. Held a proper statement of the law as to the duty of jurors.</p> <p>4. Same.</p> <p>The court charged “ the fact that the stabbing which resulted in the death of Caroline Muccio was done by this defendant, whatever doubt there might have been at the close of the case for the People, is set at rest by the defendant’s own testimony. Had that been contested, then the fact that the defendant fled and evaded capture would be a serious consideration throwing light upon that inquiry. The question of motive would also, in that case, be very important; but where it is absolutely proved that the defendant struck the blow, considerations of that character sink into minor consequences. There is strictly but one other inquiry and that is the intent which was in his mind when he did it.” Held that the court did not, by this charge, eliminate the question of motive from the case.</p> <p>4. Same.</p> <p>The judge refused to charge as requested on the ground that certain words were lacking in the request which were really contained in it, but were overlooked by him. Held that as no harm was done the jury being advised by what was said and took place as to the true rule of law, no reversible error was committed. ■-</p>

<p>Appeal — W hen Final J udgment Sustaining a Demurrer and Dismissing the Complaint Is not Appealable. A final judgment entered pursuant to section 1222 of the Code of Civil Procedure upon an order of Special Term sustaining a demurrer and dismissing the complaint upon the merits, after a reversal by the late General Term of a final judgment overruling the demurrer, the order of reversal giving the plaintiff leave to amend, which he failed to do, but which contained no direction for final judgment in case of his default, is not appealable to the Court of Appeals.</p>

Samuel Grossman was convicted of receiving stolen goods, and from a judgment of the appellate division (69 N. Y. Supp. 1141) affirming such conviction he appeals.

The facts, so far as material, are stated in the opinion. The court had jurisdiction of this proceeding and of the respondent. (Code Civ. Pro. § 66.) The fact that respondent is a trustee does not affect the jurisdiction of the court to determine and enforce the lien.

<p>Mechanic’s Lien Law — Consent op Owner. A provision in a lease that the ‘ ‘ premises are to he fully fitted up and completed for the liquor and restaurant business contemplated to be carried on at said premises within three months from date, and should the tenant fail or neglect to have the same fully fitted up within said three months then this lease to be null and void,” requites the tenant to improve the demised portion of the building itself and not simply to supply trade fixtures suitable for carrying on the business of a saloon, and constitutes, under the Mechanics’ Lien Law (L. 1885, ch. 342), a sufficient consent of the lessor to charge the property with claims which accrue in making the improvement.</p> <p>Jones v. Menke, 36 App. Div, 636, reversed.</p>

. The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in granting defendant’s motion dismissing the complaint of the plaintiff as to the second and third causes of action set out therein. (R. S. [9th ed.] 1356, § 65; Meirs v. M. G. L. Co., 14 Wkly.

<p>1. Adoption of Common Law — Changed Conditions. If the common-law rule that the liabilities of a corporation are extinguished hy its dissolution ever obtained in Hew York state because of the provision of the Constitution of 1777 adopting such parts of the common law as were then the law of the colony, which is doubtful, the changed conditions surrounding the creation and dissolution of corporations and the distribution of the assets after dissolution have abrogated it.</p> <p>2. Actio Pebsonalis Mobitub Cum Persona — Civil Death. The rule actio personalis moritur cum persona does not extend to the civil death of either persons or corporations.</p> <p>3. Survival of Action — Civil Death. Ho intention on the part of the legislature that the provisions of the Revised Statutes (3 R. S. 447, §§ 1, 2) authorizing the continuance of certain actions against the executors and administrators of wrongdoers, but excepting actions for libel, slander, assault and battery and false imprisonment, should extend to the civil death of either persons or corporations, can he gathered from the language of that act.</p> <p>4. Abatement and Revival — Action for Libel — Dissolution of Corporate Defendant. An action for libel, which has abated because of the dissolution of the corporate defendant, may he continued and revived against the former directors of the defunct corporation, in order to reach the assets of that corporation in their hands as the trustees created by section 30 of the General Corporation Law (L 1892, ch. 687) for the benefit of the stockholders.</p> <p>Shayne v. Evening Post Pub. Co., 56 App. Div. 426, reversed.</p>

On the 18th of December, 1899, the appellant presented his petition to the Supreme Court at a Special Term thereof, alleging in substance that on the 28th of December, 1896, while he was an officer of the. police department of the city and county of New York, charges were preferred against him as such officer for official misconduct; that on the 3rd of February, 1897, such charges were dismissed by the board of police commissioners, and that by reason of the premises he was…

The nature of the action and the facts, so far as material, are stated in the opinion. • ■ ■ The Labor Law of 1870 does not include drivers in the street cleaning department. (People ex rel. v. Waring, 1 App. Div. 594; 149 N. Y. 621; People ex rel. v. Waring, 7 App. Div. 247; People ex rel. v. McCartney, 28 App. Div. 138; People ex rel. v. McCartney, 34 App. Div. 19; People ex rel. v. McCartney, 36 App.

This action was brought to recover damages for injuries to plaintiff’s wharf, alleged to have been caused by the wrongful and unlawful acts of the defendant’s testator in dredging beneath the waters adjacent to said wharf. The plaintiff is the owner of lands fronting on Hew York bay, in the borough of Brooklyn, at the intersection of the southerly line of Twenty-fourth street with the waters of the hay.

<p>1. Corporations—Liability op Directors to Account in Equity as Trustees. The directors of a corporation, while not technically trustees thereof, as the title of the corporate property is vested in the corporation itself, are charged with the duties of trustees and hound to care for-its property and manage its affairs in good faith, and for a violation of that duty resulting in waste of assets, injury to its property or unlawful gain to themselves, they are liable to account in equity to the corporation, or its representatives, the same as ordinary trustees.</p> <p>2. Equity — Action to Becover Property Lost and Damages Caused through Conspiracy op Directors and to Annul Contract Made in Pursuance Thereop. When the directors and officers of a corporation, acting in pursuance of a conspiracy, resigned their positions and elected in their places certain persons whom they knew to be irresponsible and untrustworthy and placed in their possession and under their management and control the property, rights and interests of the corporation, in consideration of certain unlawful payments to be made and contracts to be performed for their benefit by such new directors, and the property and assets of the corporation were, in consequence, wasted thereby and by extravagant and unnecessary expenses paid and improvident contracts made by the substituted directors, an action in equity for an accounting may be maintained against the directors who resigned in consequence of the conspiracy, to discover and fix the value of assets improperly withheld pursuant to the conspiracy and of all property lost and damages caused by their wrongful acts, and to compel them jointly and severally to pay the aggregate amount thereof over to the corporation or a receiver thereof, and since it was part of the fraudulent confederation into which they all entered and part of the wrong intended and accomplished by them, to also set aside a written contract between one of them and the corporation whereby assets thereof were to be wrongfully diverted to him.</p> <p>3. Pleading — Joinder of Cause of Action for Equitable Accounting and of Cause of Action to Set Aside Contract. The cause of action to set aside the contract may properly be united with the cause of action to compel an accounting for the injurious results of the arrangement of which it is a part, since both causes of action were founded upon claims against trustees, arising by operation of law within the meaning of section 8 of the Code of Civil Procedure, and all the injuries charged result from the overt acts of the defendants, pursuant to and in execution of the conspiracy.</p> <p>Genesee Nat. Sav. <6 Loan Assn. v. Allen, 57 App. Div. 633, reversed.</p>

The proceeding involved the construction of the residuary ■ clause of the will of said James Russell, who died in the month of January, 1888. That part of the will which is the subject of this controversy reads as follows: “Sixth.

' This action was brought to recover for services performed by plaintiff as a physician in making certain post-mortem examinations by direction of a coroner in the county of Westchester. The facts, so far as material, are stated in the opinion. The county of Westchester is a municipal corporation, and as such is capable of suing and being sued. (Const. art. 8, § 3; Kennedy v. County of Queens, 47 App. Div. 250; People ex rel. v. Schoonover, 43 App.

The nature of the action and the facts, so far as material, are stated in the opinions. The liability of the directors is not penal, but contractual in its nature. [Rogers v. Decker, 131 N. Y. 490; Nat. Bank v. Dillingham, 147 N. Y. 603.) This action is maintainable on the theory of preventing a multiplicity of suits. (Story v. Furman, 25 N. Y. 214; Weeks v. Love, 50 N. Y. 568; Mathez v. Neidig, 72 N. Y. 100; Pfohl v. Simpson, 50 How.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in its holding as to the burden of proof and failed to instruct the jury properly in reference thereto. (Siemon v. Wilson, 3 Edw. Ch. 36; Tucker v. Dean, 21 Wkly. Dig. 519; Toms v. Greenwood, 30 N. Y. S. R. 479; Green v. Roworth, 113 N. Y. 462; Matter of Smith, 95 N. Y. 517; Fisher v. Bishop, 108 N. Y. 25; Barnard v. Gantz, 140 N. Y. 249; Marden v. Dorthy, 12 App.

. Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 25,1899, affirming a judgment in favor of defendants entered upon a verdict directed by the court. This is an action of ejectment brought to recover an undivided one-third part of certain, premises situated on Bridge street, in the borough of Brooklyn.

■ The nature of the action and the facts, so far as material, are stated in the opinion. The complaint states a cause of action for a forfeiture under the' statute. (2 R. S. 64, § 41.) The statute begins to run only from the time when plaintiff discovered the fact that defendant was a witness to the will of the testator, and not from the time when the witness affixed his name thereto as a witness.

The motion to dismiss should be denied, because the motion to vacate was a special proceeding in that from its nature it was an original and independent proceeding. (Code Civ. Pro. §§ 190, 416, 3333, 3334; Byrnes v. Labagh, 12 Civ. Pro.

<p>1. Murder—Evidence—Proof of Other Crimes not Alleged in Indictment.</p> <p>The general rule of evidence is that when a man is put upon trial for one offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and under ordinary circumstances, proof of his guilt of one or a score of other offenses in his lifetime, is wholly excluded.</p> <p>2. Same—Exception to Rule.</p> <p>Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others, (5) the indentity of the person with the commission of the crime on trial.</p> <p>3. Same—Motive.</p> <p>When evidence of extraneous crimes has been held competent upon the existence of motive, it must be either the specific motive, underlying the particular crime charged, or a motive common to all of the crimes sought to be proved.</p> <p>4. Intent.</p> <p>While previous offenses of a similar character by the same person may be proved to show felonious intent, such testimony has no weight where it fails to throw any light upon the intent with which the subsequent crime was committed, or to support or strengthen the inferences as to intent which may be drawn from the evidence tending to show that defendant committed the subsequent crime.</p> <p>5. Same—Mistake or Accident.</p> <p>Where a rare, subtle and deadly poison was mixed with a harmless powder of common use and sent by mail at Christmas time to the victim, proof of a prior extraneous crime of similar character could not be necessary or proper to anticipate the impossible defense of accident or mistake.</p> <p>6. Same—Common Plan or Scheme.</p> <p>To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other.</p> <p>7. Same—-Identity.</p> <p>The mere fact that two crimes are parallel as to the method and means employed in their execution does not serve to identify the defendant as the person guilty of the crime, unless his guilt of the latter crime may be inferred from its similarity to the former, and where there is no evidence showing that defendant committed the former crime, and that no other person could have committed the subsequent crime, such an inference is not justifiable.</p> <p>8. Same.</p> <p>The declarations of a victim of a former poisoning, to his physician, that he received a box of medicinal powder claimed to have contained the poison used, through the mails, are incompetent upon the trial of the charge of the subsequent poisoning of another person by a similar poison, also received through the mails.</p> <p>9. Same—Evidence as to Handwriting at Common Law.</p> <p>While under the common law comparison of handwriting might be made between documents properly in evidence for other purposes, and the disputed writing, in order to determine whether the writer of the other documents was also the writer of the disputed paper, yet no document could be introduced merely as a standard of comparison with the disputed writing.</p> <p>10. Same—Disputed Writing Under the Statutes.</p> <p>The “ disputed writing ” referred to by the statutes is any writing which one party upon a trial seeks to prove as the genuine handwriting of any person, and which is not admitted to be such, providing the writing is not inadmissible under other rules of evidence.</p> <p>11. Same—Comparison with Requested Writings.</p> <p>Writings made by the accused at the request of a handwriting expert retained by the police authorities while the inquest was in progress upon a death by poisoning, and while defendant was suspected to his own knowledge of -being the murderer and under subpoena to testify but not under arrest, are submissible as standards of comparison at the subsequent trial, with the handwriting upon a package containing poison which he is accused of having feloniously sent through the mails.</p> <p>12. Same—Rules as to Standards op Comparison.</p> <p>The genuineness of writings which when “proved to the satisfaction of the court” may be compared with a disputed writing, may be established (1) by the concession by the person sought to be charged with the disputed writing made at or for the purposes of the trial, or by his testimony; (2) or by witnesses who saw the standard written, or to whom, or in whose hearing, the person sought to be charged acknowledged the writing thereof; (3) or by witnesses whose familiarity with the handwriting of the person who is claimed to have written the standard enables them to testify to a belief as to its genuineness; (4) or by evidence showing that the reputed writer of the standard has acquiesced in or recognized the same, or that it has been adopted and acted upon by him in his business transactions or other concerns.</p> <p>13. Same—Rule op Evidence in Civil and Criminal Cases.</p> <p>In civil cases the genuineness of writing for comparison with disputed writings must be established by a fair preponderance of the evidence, and in criminal cases beyond a reasonable doubt.</p> <p>14. Same—Constitutional Law—IT. Y. Constitution, art. I, seo. 11.</p> <p>The statutes of 1880 and 1888, authorizing comparison of a disputed handwriting with any writing proved to the satisfaction of the court to be genuine are constitutional and are not in conflict with article I, section 11, of the Constitution of the State, which provides that “ trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.”</p> <p>15. Same—Rights of Witnesses at Inquests.</p> <p>If a person who testifies at an inquest does so simply as a witness, he has none of the rights or immunities of a party, and his testimony can be used against him even though he is afterwards indicted and tried for the commission of the crime disclosed by the inquest.</p> <p>16. Same.</p> <p>The fact that the district attorney, in his summing up to the corner’s jury, stated that he had from the beginning suspected the defendant of the commission of the crime, but had pretended to suspect O., so as to lull the defendant into a state of security, was not such a material error as to forbid the admission of evidence upon the trial of the defendant’s testimony given before the coroner.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The chattel mortgage was not filed and there is no evidence in the whole case of a change of possession of the goods mortgaged until January 26, 1897. (Smith v. Beattie, 31 N. Y. 542; Wait on Fraud. Coriv. § 259.) The plaintiff had the right to reach the avails of the property after it was .sold by Pryor under his mortgage.

Appeals from so much of two judgments of the Appellate Division of the Supreme Court in the first and second judicial departments, entered respectively March 1 and March 22, 1900, as affirmed a judgment of Special Term awarding to the defendant the custody of the children of the parties in an action for a divorce. The facts, so far as material, are stated in the opinion. The judgment is appealable and this court has jurisdiction to review the same.

On the second' Monday of January, 1899, the respondents were trustees under the will of William M. Prichard, deceased, and their respective places of residence were as follows: Charles’O. Beaman-,… Held: managed and controlled in that foreign jurisdiction and subject to taxation there, was not taxable to a citizen of the state of New York.

The relator presented to the board of elections of the city of Yew York a petition signed by 130 electors of the forty-fourth aldermanic district of that city and demanded that the same be filed as a certificate of independent nomination for the office of alderman for that district, which is composed of five election districts, located within the twenty-fourth ward of such city and comprising about one-third of such ward, there being four complete aldermanic districts within…

<p>Negligence — Falling into Temporary Elevator Shaet — Contributory Negligence. One who, having formerly been employed in a building in process of construction, enters therein after dark or in the twilight for the purpose of getting his pay, while the building is in an unfinished condition, having a temporary floor of planks over the basement and a temporary elevator, the location of which he knows and which to his knowledge is in almost constant use and liable to be moved from the ground floor to other places in the shaft, leaving the hole therein open, and who, passing across the elevator platform, which at the time is on a level with the ground floor, proceeds to the office and after receiving his pay returns through the building and walks into the elevator shaft, the elevator having been in the meantime moved, and falling to the basement receives injuries, is guilty of contributory negligence, since he has no right to assume that the elevator is resting on the ground floor and that he can cross in safety.</p> <p>Kennedy v. Friederich, 45 App. Div. 631, reversed.</p>

The facts, so far as material, are stated in the opinion. Peremptory mandamus is not the appropriate remedy under the circumstances of this case. The relator should show that he has some direct interest, differing from that of the public generally, in having the stand removed, or that his rights are infringed by its maintenance.

Appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, made June 7, 1901, by the comptroller of the city of New York from so much thereof as affirmed that part of an order of the Surrogate’s Court of the county of New York which adjudged that a legacy of $20,000 given by the will of Charles P. Huntington, deceased, to the Roosevelt Hospital, and a like legacy to the Children’s Aid Society, severally, to be exempt from the…

<p>Nuisance — When Stepping Stone upon a Sidewalk not a Public Nuisance. A stepping stone upon a sidewalk in front of a house, which does not interfere with the use of the roadway and bed of the street, nor to any appreciable or unreasonable extent with the use of the sidewalk, does not constitute a public nuisance and is a reasonable and necessary use of the street, and the owner of the house before which it is placed is not liable in damages for injuries sustained by a person who stumbled over the stone.</p> <p>Hubert v. Powell, 40 App. Div. 613, affirmed.</p>

The facts, so far as material, are stated in the opinion. The material allegations of the moving affidavit being denied, a peremptory writ could not issue.

, The facts, so far as material, are stated in the opinion. Neither the County Court, nor the commissioners appointed by it under the order of September 20, 1899, ever acquired jurisdiction of the subject-matter in this proceeding, because of the failure of the petitioner to allege or state in his petition the facts specified by the statute as necessary to con-for jurisdiction on the County Court to make the order or entertain the proceedings.

Dorlon, deceased, and the other refusing confirmation of the referee’s report herein, and confirmed the report of such referee. The facts, so far as material, are stated in the opinion. The order of the Appellate Division reversing the orders of the surrogate herein is erroneous and should be reversed. (Code Civ. Pro. §§ 2546, 2817, 2683, 2472, 2474; Smith v. People, 47 N. Y. 339; Miller v. Solomons, 7 Exch. Rep. 546; Allen v. Stevens, 161 N. Y. 143; 12 Am. & Eng.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 23, 1901, which affirmed an order of Special Term denying a motion of the defendants to quash a writ of certiorari to review their action in assessing certain real estate belonging to relator and granting relator’s motion for the appointment of a referee. The facts, so far as material, and the question certified are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 2, 1901, which affirmed an order of Special Term directing a compulsory reference.

The facts, so far as material, are stated in the opinion. There was no evidence warranting relator’s conviction on the charges made against him. (People ex rel. v. Martin, 142 N. Y. 352; People ex rel. v. French, 119 N. Y. 493; People ex rel. v. Bd. of Police Comrs., 155 N. Y. 40; People ex rel. v. Roosevelt, 22 App. Div. 626; People ex rel. v. Roosevelt, 7 App.

<p>1. Tax — Exemption oe Mission House Connected with Church. A mission house which adjoins a corner of a church building, having a chapel in daily use for religious services, in which women and children are constantly received for counsel and advice, and which is used' for meetings by missionary and charitable guilds connected with the church, is exempt from taxation under the Tax Law (L. 1896, ch. 908, § 4, subd. 7; amd., L. 1897, ch. 371), although sisters who have charge of it reside therein, their residence being necessary and an incident to the work carried on by the church therein and not an appropriation for other than religious purposes.</p> <p>2. Exemption oe Clergy House. A clergy house which adjoins another corner of the building, in which is located the choir and vestry, the first floor of which is used for a Sunday school and other religious services, and can be utilized as part of the seating capacity of the church, the second occupied as a chapel, the third'by the men’s guild, the fourth by curates who assist in carrying on the work in the church, and the fifth by an engineer who has charge of the heating and mechanical apparatus of the entire building, is also exempt from taxation, the residence of the curates and engineer being incidental to the work carried on by the church therein.-</p> <p>8. Rectory not Exempt. A rectory which is a separate building located on another corner of the church is not exempt, except as specified in subdivision 9 of section 4 of the Tax Law, exempting from taxation dwelling houses and lots of religious corporations while actually used by the officiating clergymen thereof, when it is used by the rector as his dwelling house and although his constant attendance may be necessary in the performance of his duties, the church cannot be considered as carrying on a work therein which renders the residence of the rector necessary or incidental thereto.</p> <p>People ex rel. Society of Free Qlmrch of St. Mary v. Feilncr, 68 App. Div. 181, modified.</p>

This action, brought to recover damages resulting from the death of the plaintiff’s intestate, caused, as alleged, by the negligence of the defendant, resulted in a verdict for the plaintiff rendered on the 9th of April, 1897. A motion for a* new trial made by the defendant at the Trial Term upon the minutes of the judge, resulted in an order setting aside said verdict and granting a new trial.

The nature of the action and the facts, so far as material, are stated in the opinion. The record shows only an unexplained accident not in any way connected with any negligence or the omission of any duty oh the part of the defendant. (Carlson v. P. B. Co., 132 N. Y. 273; Boess v. C. & P. B. Co., 12 App.

Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 27, 1900, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. This action was brought to obtain an injunction restraining the defendant from manufacturing and selling spool silk, stamped or marked with the name of the plaintiff, and for an accounting and damages.

The nature of the action and the facts, so far as material, are stated in the opinion. By the deed to McKay; plaintiff’s remote grantor, he became vested with the title to the southerly half of the old street which bounded lot 155 on the north. (Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Wallace v. Fee, 50 N. Y. 694; K. C. F. Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. The order of the Appellate Division reversing the judgment does not state the reversal was upon the facts, and, therefore, it must be presumed under section 1338 of the Code of Civil Procedure that the judgment was not reversed upon a question of fact, but upon the law. (Nat.

The defendant is the owner of a line of steamships plying between South America, the West Indies and New York. ' In April, 1895, one S. F. Massey took passage on defendant’s steamship Alene, at- Savanilla, a seaport of the United States of Colombia, South America. His destination was New York. After .paying for a through passage Massey obtained permission to stop over at Port Limón, Costa Pica, where he remained about two weeks.

The nature of the action and the facts, so far as material, are stated in the opinion. The execution of the contract of 1881 and the delivery and acceptance of the bond of that year did not, jointly or severally, absolve the guarantors on the bond of 1880.

<p>New York City — Indictment for Misdemeanor — Divests Court of Special Sessions of Jurisdiction. While, under section 1406 of the charter of the city of New York (L. 1897, ch. 878), Courts of Special Sessions have exclusive jurisdiction of all misdemeanors, except libel, yet, under the 'exceptions contained therein, a grand jury may prefer an indictment for keeping a disorderly house, although a complaint has not been previously made to a city magistrate or to a Court of Special Sessions.</p> <p>People v. McCarthy, 59 App. Div. 331, affirmed.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. There was ample evidence of the defendant’s negligence, and that question should have been submitted to the jury.

This action was commenced in the Supreme Court of the State of New York by bondholders of the Lebanon Springs Railroad Company to procure a sale of that company’s road, to set aside a decree rendered in another action as fraudulent, to enjoin certain proceedings by the defendants in the Circuit Court of the United States and for other relief.

<p>1. Murder—Deliberation and Premeditation.</p> <p>Where is it cértain that accused killed deceased by a blow from a deadly weapon, and bis story of the occurrence is found untrue, the fact that no ill feeling or animosity on the part of defendant toward the deceased was shown, does not rebut the inference of deliberation which may be derived from the occurrence itself and the subsequent conduct of the defendant.</p> <p>2. Same—Time mat be Vest Bribe.</p> <p>The time for premeditation need not be long. It must be sufficient for some reflection and consideration upon the matter for a choice to kill or not to kill, and for the formation of a definite purpose to kill, and when the time is sufficient for this it matters not how brief it is.</p> <p>3. Trial—Code Civ. Pro., Sec. 1086.</p> <p>The excusing of jurors from service on their unsworn statements is an irregularity hut not one of which defendant can complain where it is not shown that the action of the court operated to his prejudice.</p> <p>4. Evidence oe Expert.</p> <p>The testimony of the physician who made the autopsy on the body of deceased that the indentation made in the head large enough to receive an orange could not have been produced by a single blow, held competent as a matter of medical science and skill involving technical knowledge.</p>

The defendant was indicted by the grand jury of Erie county for “ the crime of grand larceny in the second degree committed as follows, to wit: That the said James R. Mitchell did, on the 17th day of August, in the year 1899, at the city of Buffalo, in the county of Erie, become the bailee and agent of Elmer B. Allen, and as such bailee and agent then and there received into his possession, custody and control certain goods, chattels and personal property of the said Elmer…

tlie Appellate Division of the Supreme Court in the fourth judicial department, entered March 29, 1900, reversing a judgment in favor of plaintiff entered upon the report of a referee.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 23, 1900, affirming a judgment in favor of plaintiffs entered upon the report of a referee.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 20, 1901, which affirmed an order of Special Term dismissing a writ of certiorari to review the proceedings of the defendants in assessing certain real estate belonging to the relator.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 26, 1901, directing, upon certiorari proceedings, the defendant to correct and restate an assessment of a franchise tax against the relator for the year ending October 31, 1899.</p>