Volume 6 — New York Supplement

Plaintiff appeals from a judgment dismissing its complaint at the close of the evidence. The facts appear in the opinion.

<p>Appeal from jury term.</p>

Action by George T. Newhall against William H. Appleton and others. Plaintiff appeals from an order requiring him to file an additional security for costs.

This is an appeal by defendants from a judgment decreeing a rescission of plaintiff’s contract of subscription for 13 shares of the stock of the ¡National Machine Company, and further decreeing the recovery of the balancé found due to plaintiff for moneys paid on said subscription after deducting dividends received, and a surrender of the shares of stock issued to her, on payment of said balance.

Action by Philip B. Thompson, Jr., against the Knickerbocker Ice Company, to recover the value of legal services.

Action -by the Daily Register Printing & Publishing Company against the mayor, aldermen, and commonalty of the city of New York, and the New York Law Journal Publishing Company. Plaintiff appeals from an order overruling its demurrer to the answer. For opinion rendered at special term, see 3 N. Y. Supp. 669; Const. N. Y. art. 6, § 10, provides that the judges of the court of appeals and the justices of the supreme court shall not hold any other office or public trust.

<p>Appeal from special term.</p> <p>Action for damages by George W. Lawton and another against William N. Steele. Judgment for plaintiffs, and defendant appeals.</p>

<p>Action by Henry Hentz against Robert Phillips and others. Defendants demur to the complaint.</p>

<p>1. Saj,e op Land por Taxes.</p> <p>Under Laws N. Y. 1883, c. 410, §§ 941, 943, providing that unless lands in the city of New York sold for taxes and water-rents shall he redeemed after the lapse of two years the comptroller shall execute a leasé’of the lands to the purchaser for the term of years for which the sale was made, and that when the land is so conveyed the purchaser may serve a notice on the former owner requiring him to redeem within six months, delivery to the purchaser is essential to the validity of such a lease, and a notice served after the signing, but before the delivery of the lease, is inoperative to bar the owner’s right of redemption.</p> <p>2. Same.</p> <p>Sections 945, 946, of said chapter, requiring proof of service of the notice mentioned, upon which the comptroller shall, “under his hand and seal,” certify the fact that such proof has been made, and providing that the conveyance shall become absolute, and the rights of the owner shall be thereby barred, must be strictly complied with, and it is not enough that the certificate be signed by one comptroller, and sealed by his successor in office.</p>

Action by William H. Rutty against the Consolidated Fruit Jar Company to recover damages for breach of a contract to manufacture and deliver a quantity of glove clasps. The referee directed judgment for plaintiff, and defendant appeals.

Action by George J. Cohen against Theodore K. Hazard, administrator of Jabez II. Hazard, deceased, and Albert W. Seaman. Defendant Hazard appeals from a judgment entered on the pleadings for plaintiff.

Action by Frank Work and others against Miles Beach, The substance of the complaint is that defendant had two accounts with the plaintiffs, who were stock-brokers,—one an individual account, and the other a joint account with one Marston; that plaintiffs, not having sufficient margin upon the joint account, began an action upon it against defendant and Marston, to recover a balance due thereon, and defendant and Marston appeared and contested their liability; that before any…

<p>1. Bail—Action on Bond—Breach.</p> <p>Under Code Civil Proc. § 597, providing that an action may be brought against bail at any time after they have failed to comply with their undertaking, bail for a defendant in an action for divorce, who has been arrested, and has given a bond stipulating that he will óbey the direction of the court, or in default thereof will at all times render himself amenable to proceedings to punish him for the omission, cannot be held liable for defendant’s failure to pay alimony ordered by the court, until plaintiff has signified her intention to begin proceedings to punish him for such failure, as until then the second alternative in the bond cannot be violated.</p> <p>2. Same—Notice.</p> <p>A letter to the hail, notifying them of defendant’s failure to pay the alimony, and informing them that plaintiff would hold them for such payment, is not notice of an intention to require the defendant to render himself amenable to proceedings for his failure to pay.</p>

Action by Samuel P. Hyman and Levi Morris against Jacob Kapp and Charles H. Dyett, assignee of said Kapp, to set aside the assignment. Judgment sustaining the assignment, and plaintiffs appeal.

<p>1 Tenancy in Common—Adverse Possession—Mortgages.</p> <p>In 1855 S. sold an undivided one-fourth of a tract of land which he owned to W., and took back a purchase-money mortgage, which was duly recorded. There was no actual change of possession. In 1856 B. gave a mortgage of his “right, title, and interest” in the entire tract to B., which was foreclosed, and the property bought in by B., in 1864. B. contracted to sell to plaintiff in 1873, and in 1883 his heirs conveyed to plaintiff, who has since been in exclusive possession. Held, that plaintiff’s rights were only those of a co-tenant with W.’s grantees.</p> <p>2. Same—Ouster of Co-Tenant.</p> <p>In 1868 B. leased the whole tract, and it was inclosed by a substantial fence to keep in hogs and cattle. Plaintiff since the date of her contract has been in actual possession, improved the premises, paid taxes, and maintained fences. No explicit notice of adverse possession was ever given to the co-tenants under W., who were non-residents of the state. Meld, that they had not been ousted.</p> <p>3. Same—Mortgagee in Possession.</p> <p>The fact that S. remained in possession of the tract after the mortgage from W. without any direct act or consent of the latter did not make S. a mortgagee in possession ; and, even if the W. mortgage be presumed to be paid by the rents and profits, that gives plaintiff no rights, as she never was owner of that mortgage.</p>

Action by Rawley Williams to recover the value of goods destroyed by fire while in defendant’s warehouse. Judgment for plaintiff, and defendant appeals.

<p>Appeal from circuit court, Montgomery county.</p>

On the relation of Samuel C. Downs, overseer of the poor of the town of Hartford, Joseph Lindsay was adjudged the father of a bastard child, and an order of filiation was made, from which he appealed to the court of sessions, where the order was annulled, and plaintiff appeals.

Contest between Geraldine J. Timoney, proponent, and Joseph A. Booth, contestant, over the last will and testament of Cecilia L. Booth, deceased. The issues directed to be tried before a jury were found in favor of the proponent, and the contestant appeals from an order denying his motion for a new trial.

Action by Miln P. Palmer against Mary A Dunham and others, brought after the death of the last surviving trustee appointed by the will of Frances B. Hegeman, deceased, for an accounting of the proceedings of the deceased trustee, and of the proceed! ngs of the defendants, who took charge of the estate after the trustee’s death, and an adjustment of their commissions and compensation, for the determination of certain questions which liad arisen as to the proper construction…

<p>Appeal from special term, New York county.</p> <p>Action by Isabel S. Tripler against the mayor, etc., of the city of New York, to recover the amount of an illegal assessment paid by her. Plaintiff recovered, and defendant appeals.</p>

Action by William McCreery and Wallace C. Andrews against Melville C. Day, George J. Forrest, and Daniel E. Garrison, as executors of the last will and testament of Cornelius IC. Garrison, deceased, for breach of contract. Judgment was entered for defendants on the pleadings, and plaintiffs appeal.

<p>Insurance—Benevolent Societies—Change of Certificate.</p> <p>One L. was the holder of a certificate in a charitable organization, by the terms of which his widow was to receive $3,000 on his death. The constitution and bylaws of the society provided that a member desiring to change his beneficiary might surrender to his lodge his benefit certificate, which should be forwarded by the reporter of his lodge under seal to the supreme reporter, who should cancel the old certificate and issue a new one to such member, payable as he shall have directed, within the limitations prescribed by the laws of the order, which restricted the benefits to such member of his family, or person dependent on him, as he might designate by name. On March 8, 1887, L. signed on the back of his original certifi-</p> <p>cote a surrender thereof, and wrote directions that a new one be issued, payable to his sister. This was sent to the reporter of his lodge, and mailed by him to the supreme reporter March 10th, and a new certificate was issued March 13th to the sister. By the rules of the society, the new certificate had to be accepted by the member. L. died March 10th. Held that, as the first certificate had not been received and canceled by the supreme reporter until after L.’s death, the society had no right to issue a new certificate, and the attempted surrender was incomplete, and no rights were conferred thereby.</p>

Action by Martin Kramrath against the city of Albany to recover for merchandise, consisting of carpets, oil-cloths, rugs, etc., furnished by the plaintiff to fit up rooms in the city building for certain officers. On the 10th day of February, 1880, the city hall in the city of Albany was destroyed by fire.

Lawrence county court. Action of trespass by Zacheus E. Ladd against Sylvester French, for digging and carrying away soil and gravel from that portion of a highway in the town of Fine, the fee of which is owned by plaintiff. Judgment for plaintiff, and defendant appeals.

Action on an insurance policy by James G. Knapp against the Preferred Mutual Accident Association of New York. From a judgment entered on the verdict, and from an order denying a motion for a new trial on the minutes of the court, defendant appeals.

Action by Jewell M. Burgdorf against Benjamin F. Odell for goods sold and delivered, commenced in a justice’s court. From a judgment entered in the county court on the verdict of a jury, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from an order of the special term denying defendants’ motion for a second new trial under the statute.</p>

<p>Appeal—Record.</p> <p>Code Civil Proc. N. Y. § 1010, provides that, “upon a trial by the court of an issue of fact or of law, its decision, in writing, must be filed in the clerk’s office within 20 days after the final adjournment of the term where the issue was tried. ” Section 1021 declares that “the decision of the court upon the trial of a demurrer must direct the final or interlocutory judgment to be entered thereupon. ” Held, that an appeal to the general term from an interlocutory judgment overruling a demurrer to the complaint will not be considered, where the record contains no decision by the court of the issues of law joined by the demurrer.</p> <p> & </p>

<p>Appeal from Monroe county court.</p>

Monroe county court. Action for broker’s commissions brought by Henry L. Fish and another against Alice M. Colvin. Verdict and judgment for plaintiffs, and defendant appeals.

<p>1. Appeal—Review—Pkincipal and Agent.</p> <p>Where itappears that defendant agreed to deliver to athird person certain shares of stock, at a given price, if paid for within given periods, the third person having the option as to whether or not he would take the stock, a referee’s finding that the third person was not defendant’s agent for the sale of the stock, so as to make defendant liable for representations and warranties made by him on selling it, will not be disturbed on appeal, though defendant knew that the third person intended to sell the stock, and reduced the price to him for that reason.</p> <p>2. Witness—Impeachment.</p> <p>In an action for such representations, where the third person has testified that he was defendant’s agent for the sale of the stock, evidence is admissible for defendant that he had made declarations inconsistent with his testimony, though such declarations were made after the representations and sale of stock to plaintiff.</p> <p>3. Same—Attorney as Witness—Waiver oe Privilege.</p> <p>Where defendant himself examines his counsel as a witness, he waives the privilege, and an objection to the counsel’s testimony on the ground of incompetency cannot be sustained.</p>

<p>Appeal from judgment on report of referee.</p>

<p>Motion for new trial on exceptions.</p>

<p>Appeal from special term.</p>

<p>On motion for new trial on exceptions.</p>

Motion by plaintiff for a new trial on a case and exceptions, ordered to be heard in the first instance at general term.

Action by Sidney C. Cross, trustee, against the National Fire Insurance-Company of New York, upon a policy of insurance. Defendant obtained an order for the examination of plaintiff before trial, which was vacated, and defendant appeals.

<p>1. Evidence—Presumption from Failure to Produce Witness.</p> <p>In an action to charge defendant as indorser of a note, the body of which was in the handwriting of, and purporting to be indorsed by, one F., the issue was as to the genuineness of defendant’s signature. F. had been for some months in the custody of the sheriff, and was not produced as a witness, but plaintiff’s counsel stated that they had in due time procured a writ of habeas corpus to bring him into court to testify, but that on the day before trial they had been informed by telegraph that he had been taken from the sheriff’s custody by a United States marshal, and that they did not know to what place, nor for how long. No point was made that this was not the best evidence of the facts, nor as to whether sufficient diligence had been used. 'Meld, that the court properly charged the jury that, under the circumstances, no presumption arose from plaintiff’s failure to produce F. as a witness.</p> <p>8. Same—Admissibility—Genuineness of Signature.</p> <p>Plaintiff was allowed to show that defendant held securities from the maker for the payment of sums apparently either due, or for which the former had become liable by indorsement or otherwise for the latter, the nominal amount of such securities nearly corresponding with that which plaintiff’s witnesses testified defendant stated he held as security for his indorsements, at a time when, as they testified, he admitted that the note in suit was genuine evidence of such liability on his part,</p> <p>and it was contended that the amount of that note was necessary to make up the amount covered by the security. Held, that the evidence was relevant to the question of the genuineness of defendant’s signature.</p> <p>3. Same—Genuineness oe Signatures—Cross-Examination.</p> <p>Defendant’s witness having testified to his opinion of the genuineness of the indorsement, he was properly cross-examined as to his opinion of the genuineness of defendant’s signatures to other notes which were in evidence, as a means of testing the correctness of his judgment.</p>

Action for money lent, brought by Sidney U. Smith against Samuel 0. Smith. The court directed a verdict for plaintiff, and from a judgment entered thereon defendant appeals.

Plaintiff William D. Taber appeals from an order denying his motion to set • aside the verdict, and to grant a new trial.

Action by Albert H. Pickard, president of a manufacturing corporation, against John Simpson for money due the corporation on an account stated. Judgment for defendant, and plaintiff appeals.

Bosa Ottman sued to recover certain masquerade suits leased by her to defendants, John Griffin and Ferdinand Gamjost. Defendants pleaded a general denial, and asked for a bill of particulars.

<p>■Criminal Law—Sentence.</p> <p>Under Pen. Code N. Y. § 333, fixing the punishment of an assault in the third degree at imprisonment for “not more than one year, ” or a fine, or both, and Code Crim Proc. § 718, providing that when a fine is imposed the defendant may he imprisoned until it is paid, a judgment for one year’s imprisonment and a fine, and for imprisonment not exceeding “one day for each dollar of said fine, ” is not erroneous; as, if there is any uncertainty in that part of the judgment relating to the fine, its validity can be tested by habeas corpus, after the expiration of the term of imprisonment.</p>

Action by Hugh Flynn against J. Monroe Taylor, to recover damages for, and to restrain the continuance of an alleged nuisance. Plaintiff was the keeper of a saloon in the city of Brooklyn on the corner of Ferry place, and defendant owned a saleratus factory near by, on Sackett street. Defendant frequently obstructed the street in front of his factory by placing his wagons on the sidewalk while unloading and in other ways. He had done so for years.

<p>Motion for a reargument. For former opinion, see 4 H. Y. Supp. 79.</p>

<p>Appeal from special term, Westchester county. .</p> <p>• Action by Ambrose Lee and Elizabeth S. Lee against John T. Briggs. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Richmond county court.</p>

<p>Appeal from circuit court, Westchester county.</p> <p>Action by Denis Murphy against the board of education in the city of Yonkers for a balance alleged to be due on a building contract. Judgment was entered on a verdict for defendant, and plaintiff appeals.</p>

Action by Christian Kummel against the Germania Savings Bank, to recover a sum of money deposited by plaintiff with defendant, and paid by the latter to a third person who presented the bank-book, but who had no written authority from plaintiff. Judgment on verdict for plaintiff, and defendant appeals.

Action by Patrick H. Bowes against the city of Brooklyn, for a balance alleged to be due him on his salary as patrolman, which salary the board of estimate had reduced in amount from that first fixed by its resolution. A demurrer to the complaint was sustained, and plaintiff appeals.

This was an action by James E. Hamel against the Brooklyn & PTew York Ferry Company, to recover damages for assault and battery, false imprisonment, and malicious prosecution.

This was an action by Elizabeth J. Osborne against the New York Mutual Insurance Company, upon a policy of marine insurance issued by defendant, J une 25, 1885, for one year, on account of whom it might concern, upon the body, tackle, and apparel, etc., of the bark Aurelia. Plaintiff was mortgagee of one-fourth of the bark, in the sum of $2,125, and the insurance was for $2,000. The bark was built in 1872.

This is an appeal by Charles S. Higgins and John J. Morgan from an order denying a motion to continue a temporary injunction restraining defendant, James D. Bell, commissioner of police and excise of the city of Brooklyn, from inspecting plaintiff’s steam-boilers, on the ground that they are exempt from such inspection by virtue of Laws 1874, e. 614; plaintiffs being in possession of guarantied certificates, in full force, of an insurance company organized for the purpose of…

This an appeal by Robert Marks from an order appointing commissioners to ascertain the compensation to be made by the petitioner, the New York, New Haven & Hartford Railroad Company, a Connecticut corporation, for certain lands in Port Chester, proposed to be taken by the petitioner for railroad purposes.

Henry T. McCoun, Jr., sued William Sperb, Jr., and Burton T. Beach, alleging that, as surety on the bond of said defendants, as administrators of Gilbert Dunspaugh, he was compelled to pay $2,056.23 on the defalcation of said Beach, and asking reimbursement. Beach had absconded, and Sperb was in no way responsible for the defalcation. Judgment was rendered for defendant Sperb, and plaintiff appeals.

E. S. Riley sued Thomas H. Skidmore and Stephen M. Bull for damages by wrongful attachment. The affidavit in the attachment suit alleged that plaintiff was entitled to recover a certain sum above “all counter-claims known to deponent,” but did not state, “known to plaintiff.” The justice allowed plaintiffs to amend their undertaking. Judgment for defendants, and plaintiff appeals.

<p>Railroad Companies—Use op Another’s Track—License.</p> <p>An agreement by one railroad company that another, “and its assigns, ” may use one of its tracks on certain conditions, is a mere license, and not a lease; and the ■ licensee cannot enjoy it and at the same time confer the right to do so on other companies, which would be to impose greater burdens on the licensor than the agreement contemplated.</p>

Action by Richard D. Alliger against the Brooklyn Daily Eagle, a newspaper corporation, for libel. The publication stated that plaintiff had on the day before been arrested and arraigned before the police court on a charge of forgery, and held in $2,500 bail. It stated that the alleged criminal was the agent of the British American Assurance Company, and resided at Elmont, Long Island, and had always borne an excellent reputation.

John D. Gierhon was arrested in the city of Yonkers for throwing rubbish in a dock on Pier street of that city, and held to bail to answer that charge. Subsequently he was tried by a jury, and acquitted. The charge was made by -Michael Day, acting under the direction and as agent of Thomas W. Ludlow; the latter being present at the trial. Gierhon sued Ludlow for malicious prosecution, and proved by his own testimony, and by that of others, the falsity of the charge.

Action by John W. Foulks against Thomas Foulks and others, executors of William Foulks, deceased, and others, for a legacy to which plaintiff was entitled under the will of the decedent. From an interlocutory judgment overruling his demurrer to the complaint, Charles H. Foulks, one of the defendants, appeals.

<p>Appeal from special term, Kings county.</p> <p>Action for personal injuries by Charles F. Johnson against the Broadway & Seventh-Avenue Railroad Company. Judgment on verdict for plaintiff, and defendant appeals.</p>

The Hyack & Warren Gas-Light Company sued the Tappan Zee Hotel Company, Limited, in attachment, alleging that defendant had removed its property from the state with intent to defraud its creditors. Defendant answered that, as the hotel was about to close, defendant moved the property to Hew York city for storage, where it was at the time the suit was brought, and was only out of the state temporarily in Hew Jersey while on the way to Hew York city.

Isaac 0. Simonson sued Anna C. Krollpfeiffer in a justice’s court for commission as real-estate broker, and obtained judgment, which was'appealed to the county court, where judgment on a verdict was rendered for plaintiff, und defendant appealed.

Action by Samuel 0. Brooks against Michael K. Wilson and others to set aside conveyances and a mortgage of property as made in fraud of creditors. Defendant Mrs. Munoz was the administratrix of Mrs. Clay, the mortgagee, and had obtained judgment foreclosing the mortgage, which was affirmed both at general term and by the court of appeals. Munoz v. Wilson, 18 N. E. Rep. 855.

<p>Appeal from special term, Westchester county.</p> <p>Petition by certain freeholders of the town of Eastchester, for an investigation into the financial affairs of that town, and for an injunction to restrain payment of certain bills. The petition was filed under Laws N. T. 1879, c. 807, which is entitled “An act to provide for the summary investigation of unlawful or corrupt expenditures by officers of towns or incorporated villages, and for restraining the same.” The prayer of the petition was granted, and David Quackinbush, a supervisor of the town, appeals.</p>

Action by Thomas W. Ludlow and Jacob F. Miller, as executors and trustees under the will of Thomas W. Ludlow, Jr., deceased, against John D. Gierhon, for trespass in placing materials used in the construction of a sewer on plaintiffs’ dock surface. Judgment was entered for defendant, and plaintiffs appeal.

<p>Appeal from special term, Westchester county.</p> <p>Action by William P. Fiero against James P. Paulding and John D. Smith, There was a judgment for defendants, and plaintiff appeals.</p>

<p>Appeals from circuit court, Kings county, and from surrogate’s court, Kings county.</p> <p>Emma Benrimo appeals from an order denying her motion for a new trial, and to set aside the verdict of the jury in the circuit court, sustaining an alleged will of George R. Jacott, deceased, and from a decree of the surrogate admitting such alleged will to probate. For opinion of the general term on a former appeal, see 2 K. Y. Stipp. 146.</p>

Action by the Fulton Bank of Brooklyn against Herbert D. Chase and others, in the nature of a bill of interpleader, on the following state of facts: In January, 1885, plaintiff loaned one George K. Chase $40,000 on a “collateral stock note,” signed by defendant Herbert D. Chase, and the securities mentioned therein. From time to time portions of these securities were surrendered on payments being made, or on the delivery of other securities.

Josephine McQuade, administratrix of Bernard C. McQuade, sued William Adams for money loaned to him by intestate. Brora a judgment for plaintiff, defendant appealed.

Action by John Oelerich, an infant, by Oswald Leuscher, his guardian ad litem, against the Hew York Condensed Milk Company, for personal injuries. A judgment was entered on a verdict for plaintiff, and a motion for a new trial on the minutes denied, and defendant appeals.

Application of Charles H. O’Connor for a writ of mandamus commanding John P. Adams, commissioner of the department of city works, to restore him as a clerk in said department. Prom an order denying the motion, the relator appealed.

<p>Master and Servant—Negligence oe Fellow-Servants.</p> <p>Plaintiff, while in defendants’ employ, was directed by defendants’ superintendent to take some bricks from a pile. Plaintiff called the superintendent’s attentention to the shaky condition of the pile of bricks, to which the superintendent replied, “All right; I will attend to that.” Afterwards the pile cracked and the cover slipped off, breaking plaintiff’s leg. There was no evidence that the superintendent was incompetent, or that the bricks were badly piled or unskillfully coy ered. Held, that the injury was caused by the neglect of a fellow-servant.</p>

Action by Miles W. Olmstead against Asa Doland for false imprisonment. Plaintiff appeals from a judgment entered on a verdict for defendant, and from an order denying a motion for a new trial.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Alanson R. Simonson against Alfred L. Simonson. Judgment was entered on a verdict for plaintiff, and defendant appeals.</p>

Action by Jerome B. Wass against Benjamin F. Stephens for malicious prosecution. Judgment was entered on a verdict for plaintiff, and defendant appeals.

Action for malicious prosecution and false imprisonment, brought by Kate F. Monjo against Domingo M. Monjo. Plaintiff had a verdict for $3,000, and defendant appeals.

<p>1. Executors and Administrators—Accounting—Authority of Surrogate.</p> <p>The surrogate has no power, upon an accounting by an executor, to require a devisee, to whom the executor has paid money, to repay it on the ground that such payment was in excess of the amount authorized by the will.</p> <p>3. Same—Decree—Power to Vacate.</p> <p>Where such unauthorized order has been made in the decree of settlement, the surrogate has the power, inherent in courts generally, to vacate the decree in that respect.</p>

<p>Master and Servant—Contract of Hiring.</p> <p>Receivers of defendant employed plaintiff in September, 1881, at $4,500 per annum, payable monthly. In May, new receivers were appointed, who continued plaintiff’s employment at a reduced salary. Held, an employment by the month.</p>

<p>1. Contract—Consideration—Evidence.</p> <p>The evidence showed that plaintiff and his father, defendant’s intestate, jointly owned a farm, the title to which was in the intestate, who, without notice to plaintiff, sold it, whereby plaintiff was injured by being compelled to sell out of season his personal property on the farm, and that the note sued on was given for the amount agreed on between the parties as plaintiff’s loss. Held sufficient to prove-a consideration.</p> <p>2. Same—Burden or Prooe.</p> <p>A recital in a note given by a decedent that it was “for value received, ” is sufficient, in an action against the administrator, to cast the burden of proving want of consideration on defendant.</p>

This was an application for mandamus to compel John Besson, supervisor of the town of Greenburgh, to pay relator, receiver of taxes, the sum of $109.63, to which he claims he is entitled under Laws 1877, c. 193; being 2 per cent, of the amount of uncollected taxes returned by relator, and since collected, with the statutory additions, by respondent. The motion was denied, and relator appeals.

Action by Maria W. Croome against Daniel H. Craig and Helena Craig, for an accounting of the proceeds of certain land in Florida.

Action by ICate F. Brown against J. Warren Lawton, the complaint being as follows, omitting formal parts: “(1) That on and prior to the 27th day of December, 1883, the plaintiff was the owner of thirty-seven shares of the capital stock of a certain corporation known as ‘ The Kennedy Brick and Tile Machine Company.' (2) That on or about said date the defendant undertook with the plaintiff, as her agent, to sell said shares.

Action to set aside a note and mortgage executed by the plaintiff, Mary R. Van Campen, as security for the payment of bonds of defendant’s testator, claimed to have been embezzled by plaintiff’s husband, Samuel R Van Campen.

This is an appeal by defendant, Jerome F. Manning, from an order denying his motion to substitute Philip Carpenter as his attorney in the place and stead of William J. Weldon, his attorney of record. The ground of this motion was (and the fact is not disputed) that Weldon had refused to render any further services in this and two other actions against the same defendant unless his fees already earned were first paid.

Action by Ella L. Bigney against Thomas G-. Bigney, to enforce a decree of the court of chancery of New Jersey for alimony, counsel fee, and costs in a suit for divorce. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Julius J. Frank against Edward A. Davis, to foreclose a mortgage. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action for partition, brought by John J. Tilton against Susan M. Vail and others. Defendants appeal from aninterlocutoryjudgmentconfirmingthe report of a referee appointed to take proof of title, and ordering a sale of the premises.</p>

<p>Case submitted on agreed statement.</p>

<p>Accord and Satisfaction—Validity.</p> <p>Plaintiff’s testatrix and defendant had been engaged in business together, and had deposited their profits in bank to their joint account. On testatrix’s death plaintiff demanded half the deposits, but defendant claimed the whole thereof. The dispute was finally; compromised by defendant’s paying plaintiff a certain sum in settlement of all claim to the deposits. Before such settlement defendant gave plaintiff the bank-books, showing the exact amount of the deposits; but plaintiff claimed that he did not examine them, and that he relied upon defendant’s representation as to the total amount. Defendant denied making any false statement as to such amount. Held, that the settlement was a good defense to an action for ac counting.</p>

Application by William H. McGrath for a mandamus to the board of supervisors of Westchester county. The writ was granted by the special term, and the board of supervisors appeals.

<p>Appeal from circuit court, Dutchess county.</p> <p>Action by Stephen A. Perkins against George D. Eighmie. The complaint was dismissed, and plaintiff appeals.</p>

<p>Assumpsit—For Work and Labor—Evidence.</p> <p>Where it appears that defendant’s employés took his horses to plaintiff’s blacksmith shop, where they were shod by plaintiff, and that defendant received the benefit of the work, a judgment for plaintiff for the price of the work is warranted.</p>

<p>Appeal—From Justices’ Courts—Harmless Errors.</p> <p>On appeal from a justice of the peace to the county court, on questions of law only, the county court may give judgment according to the merits without regard to technical errors.</p>

<p>Wills—Construction—Estate Devised.</p> <p>A provision in a will that “I also give and bequeath to my wife, E., all the rest and residue of my real estate, but on her decease the remainder, if any, I give and devise to my children, ” vests a fee-simple in the wife; and the case is not affected by 1 Rev. St. N. Y. p. 725, § 32, which provides that “no expectant estate can be defeated or barred by any alienation or other act of the owner of the intermediate or precedent estate, nor by any destruction of such precedent estate; ” and section 33, which provides that “the last preceding section shall not be construed to prevent an expectant estate from being defeated in any manner, or by any act or means which the party creating such estate shall in the creation thereof have provided for or authorized, nor shall an expectant estate thus liable to be defeated be on that ground adjudged void in its creation. ”</p>

<p>Appeal from special term, Kings county.</p>

Suit by Jean Hirsch against the New York & Greenwood Lake Bail road Company, to recover damages for injuries received while attempting to get on one of defendant’s trains from a waiting-room in the depot. Judgment for plaintiff, and defendant appeals.

Mary B. Stouter sued the Manhattan Bail way Company to recover for injuries received in a collision. Judgment was rendered for plaintiff for 48,525.87, and defendant appealed.

<p>Appeal from special term, Kings 'county.</p>

<p>Appeal from circuit court, Rockland county.</p> <p>Robert Gedney sued Julia O. Prall and others in partition. From a judgment in favor of defendants plaintiff appeals.</p>

<p>Judgment—By Default —Opening—Terms.</p> <p>There was a disagreement between the attorneys for plaintiff and defendant in respect to the trial of the case, and plaintiff’s attorney brought it on for trial, and obtained a default. «Held that, while the court properly opened the default, it erred in imposing a condition requiring plaintiff’s counsel, who was regular in his practice, to try the cause upon a printed case, (prepared on a former appeal by defendant,) if he went to trial that week, and in not imposing reasonable pecuniary terms (counsel fee, etc.) upon defendant as a condition for the favor.</p>

Mary Deegan, as administratrix of William Deegan, deceased, sued William Capel. The complaint was dismissed after the evidence for plaintiff was introduced, on motion of defendant, and plaintiff appeals.

<p>Damages—Excessive—For Personal Injuries.</p> <p>In an action for personal injuries, when the physician who attended plaintiS testifies that in his opinion plaintiS will never recover from the injuries, and it appears that they have left plaintiS substantially a physical wreck, a verdict of 810,000 damages will not be disturbed on appeal.</p>

Action by Walter M. McKinney against the Long Island Railroad Company for injuries received by plaintiff, while his foot was fastened in defendant's railroad track, by being struck by a train. From a judgment on a verdict for plaintiff defendant appeals. Appeal from circuit court, Kings county.

Action for breach of a contract of shipment brought by Josiah M. Favill against C. Lawrence Perkins. Defendant appeals from an order setting aside a verdict in his favor and granting a new trial.

Suit by Jessie L. Ward and others, legatees under the will of Richard Thompson,'deceased, to open a voluntary settlement of the accounts of D. 0. Littlejohn and H. W. Johnson, executors of such will. A demand for a bill of particulars of money alleged to have been expended and services rendered by defendants was-made and a bill of particulars served.

This was an action for libel brought by John T. McKane against the Brooklyn Citizen, the libelous matter charged being that plaintiff had been guilty of taking bribes in his capacity of supervisor of the town of Gravesend, and of other acts of corruption and fraud. Defendant appeals from an order striking out portions of its answer as irrelevant.

Action by Charles S. Higginson against the Second Hational Bank of the City of Hew York. Plaintiff obtained an order to take the deposition of a witness, Fuller, de bene esse, but, on defendant’s objection that plaintiff’s affidavit was “misleading, concealed the real facts, and misrepresented the same,” the deposition was suppressed, and from this order plaintiff appeals.

<p>Street Railroads—Construction.</p> <p>Where a corporation secures a right to construct a street railroad along a certain route by obtaining the consent of abutting property owners, as required by Laws N. Y. 1884, c. 252, it cannot change its route, and construct its road over the land of a private person, under the general railroad law.</p>

Action on two promissory notes by Benjamin Tuthill against Josiah Felter and Allison M. Archer. On defendants’ motion the venue was ordered changed to Rockland county, and from this order plaintiff appeals.

Action for criminal conversation by Peter Smith against John O’Brien. Plaintiff testified that he caught his wife and defendant in an act of adultery. His evidence was objected to on the ground that he was incompetent to testify, under Code Civil Proc.

<p>Appeal from special term, Richmond county.</p> <p>Action for damages and injunction, brought by Henry L. Butler against the defendant village, the wrong complained of being the flooding of plaintiff’s premises by sewerage collected by defendant. Judgment for plaintiff granting the injunction, and directing an issue as to damages. Defendant appeals.</p>

In the matter of the final judicial settlement of the account of Benjamin Laramie, as administrator of Harriet M. A. Laramie, deceased. On report of a referee the court distributed the estate as follows: One-tliird plus commissions to the administrator, as the husband of deceased; two-thirds to Rufus B. Laramie, as her only legitimate child; and all the costs of a contest between the children of deceased were charged to the administrator personally. He appeals.

Henderson and others, her tenants, to recover certain lots of land in the village of Unionport, of which defendant Henderson was the owner prior to the proceedings hereinafter mentioned. In October, 1884, plaintiff duly filed a notice of mechanic’s lien against the premises for $515.32. In June, 1885, he brought an action to foreclose the lien; the notice thereof being personally served on defendant Henderson.

Action by Jane Montgomery against the Long Island Railroad Company for injuries received while a passenger on defendant’s cars. The plaintiff, after describing the accident, testified as to the nature of her injuries as follows: “I was helped up by a gentleman and the little girl, and the little girl helped me over to my daughter. Jane Givens helped me over. I stayed all night. Then I had the doctor examine me, and went to 667 Bergen street, and remained there.

Action by George B. Abbott, as administrator of Eunice Chapman, against Margaret J. Thomas and others, to recover for money loaned. The action was tried by a referee, who directed judgment dismissing the complaint. This appeal is from an order denying plaintiff’s motion to resettle case on appeal, and refusing to send it back to the referee for resettlement.

<p>Appeal from circuit court, Westchester county.</p> <p>Action by Eugenia A. Penfield against the New York & Mt. Vernon Water Company for negligently constructing a dam so as to overflow plaintiff’s land. From a judgment entered on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.</p>

Aclion to foreclose a mortgage brought by Catharine A. Anderson against Weeks W Culver and others. From a judgment of foreclosure and sale defendants appeal.

Action for personal injuries by John M. Anderson against the New York, Lake Erie & Western Railroad Company. Verdict for plaintiff, and from a judgment entered thereon and an order denying a motion for new trial defendant appeals.

George W. Chauncey, trustee under the will of Mary L. Kirby deceased, presented his accounts for audit, and the question arose as to what amount should be paid to James E. Delaney, a legatee under the will. Mr. Delaney was reared by testatrix, and occupied a relation towards her equivalent to that of an adopted son.

<p>Appeal from special term, New York county.</p>

Action for partition by Sophia Loehner against Elizabeth Maas and Mary E. Gasteyer. The motion of defendants for an order requiring the referee to-pay them one-half of a sum of money, the proceeds of the sale of lands of the estate, set aside to represent the dower interest of the defendant Maas, being denied, the defendants appealed.

<p>Appeal from surrogate’s court, Hew York county.</p>

Action by the Importers’ & Traders’ national Bank of Hew York against Henry S. Burger, Bichard W. Hurlbut, Cyrus A. Ilealy, and Frank H. Platt, to set aside as fraudulent an assignment made by the three defendants first named to their co-defendant Platt. Judgment for plaintiff, and defendants appeal. The opinion filed at special term is as follows: “Patterson,!.

This is an appeal by Catharine Lefferts, a contestant, who claims to be the daughter and sole heir at law of the decedent. From the findings of fact, conclusions of law, and the decree or decision of the surrogate of the city and county of New York thereon, rendered on the 16th day of August, 1887, admitting to probate as a will of real and personal estate a paper proposed by Amelia Delaoroiex as the will of William Darling, deceased.

<p>Appeals from special term, New York county.</p> <p>The petitions of Marshall O. Roberts, John D. Wendell, Albert Weber, William Fitzpatrick, and Frederick Schloman, to vacate street assessments.</p>

<p>1. Arrest—In Civil Actions—Implied Contract.</p> <p>A defendant who has procured personal property by fraud may be arrested in an action for its recovery, under Code Civil Proc. N. V. § 549, subd. 4, providing for arrest “in an action upon contract, express or implied, * * * where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. ”</p> <p>2. Same—Pleading.</p> <p>A simple allegation that defendant was guilty of a fraud in contracting or incurring the liability upon which the action is based is sufficient to justify an arrest.</p>

<p>Appeal from court of general sessions, Hew York county.</p> <p>Michael Brien appeals from a conviction of receiving stolen goods.</p>

Jacob W. Bennett, a son of Charlotte Bennett, deceased, presented for probate a paper purporting to be her last will, in which he was named as executor, and was the principal legatee. Probate was contested by Oscar M. Bennett, testatrix’s son. It appeared that the will was drawn by Mr. Lent, a lawyer, in the sick-room of Mrs. Bennett, and that she was confined to her bed, with her last illness, at the time.

Jane Evarts died intestate seised of land in the city of Brooklyn. She left heirs, of whom plaintiff, Charles M. Evarts, her son, was one, the others being made defendants herein. This suit is to partition the land, and also to require the payment of two debts out of the land, one being a mortgage of the same land for $3,000 due to defendant Jenks, executed by Mrs. Evarts, and the other a judgment recovered by one John McArdle against Mrs. Evarts for $329.

Action by Charles McKeown, Marian MeCambridge, Alicia McLaughlin,, and Agnes Betty against John Officer, executor of John McKeown, deceased, the Board of Home Missions, and the Board of Church Extensions of the United Presbyterian Church of North America, to have the bequests contained in decedent’s will to the two corporations declared valid to the extent only of one-half of testator’s estate.

Action by John Good against William S. Daland and the Tucker & Carter Cordage Company. The complaint in substance sets forth that the Tucker & Carter Cordage Company, being members of an unincorporated association known as the “United States Cordage Manufacturers’ Association of New York,” together with the other members of said association, authorized the defendant Daland to make in their behalf a certain agreement in writing, which the defendant Daland did.

Action by John W. Birch and another, doing business in London as Mildred, Goyenneche & Co., against Jose de Rivera, as guarantor of J. de Rivera & Co., upon his guaranty to them for £5,000. From an order denying a motion for a new trial on exceptions defendant appeals.

Action on a note brought by James A. Webb against John T. Fryer and Charles R. Braine. From a judgment for plaintiff, entered on a verdict directed by the court, defendant Fryer appeals.

Action by the village of Port Jervis against Ernest M. Close for violation of a village ordinance. Judgment for plaintiff, and defendant appeals.

Action by George W. Smith and Morris Y. Randall, tax-payers of school-district No. 2 of the town of Newton, to enjoin the trustees and collector of that district from issuing its bonds for $12,000, pursuant to an alleged resolution of a school meeting, on the ground that such resolution was not passed by the vote of a majority of the qualified inhabitants of the district. The complaint was dismissed, and plaintiffs appeal.

<p>Certiorari to police commissioners.</p> <p>Patrick McAleer, a patrolman of the metropolitan police force, was charged with intoxication while on duty, and tried before the commissioners of police. On the trial lie asked if he should call his wife and an officer, by whom he could show his condition shortly before he was alleged to have been intoxicated. He was told that they would probably do him no good, as only his condition at the time charged was material to the inquiry. He was dismissed from the force, and brings certiorari to review the decision of the commissioners.</p>

Action by Robert J. Hoguet, John C. Wilmerding, and John Currie Wilmerding against Joseph Berkman and Pincus Rosen, for goods sold and delivered. Charges of fraud were also made in the complaint, and defendants were arrested thereon. There was a verdict and judgment for plaintiffs, and defendants appeal.

<p>Appeal from special term, Orange county.</p>

<p>Assault—Indictment—Surplusage—Proof.</p> <p>An allegation in an indictment for assault with a loaded pistol, under Penal Code N. Y. § 318, subd. 4, declaring a person to be guilty of an assault in the second degree who “ willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm, ” of an intent to discharge the weapon at the assaulted person, and proof of such intent, are superfluous, but not prejudicial to defendant. Brady, J., dissenting.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by John Buhrens against the Dry-Doclc, East Broadway & Battery Bail way Company, for damages on account of personal injuries in a collision between plaintiff’s wagon and defendant's street-car. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.</p>

The plaintiff, Lewis S. Crane, obtained a judgment against the defendant Herbert Foote Beecher, one of the legatees of Henry Ward Beecher, deceased. By supplemental proceedings, the examination of W. C. Beecher, one of the executors of the will, was commenced, but adjourned by stipulation; the judgment debtor and executor agreeing to pay the judgment out of the first money received from the legacy, and that a receiver might be appointed for that purpose if necessary.

Action by Alice M. Barrowcliffe against Henry Cummins and George D. Roberts, to recover certificates of 700 shares of capital stock of the ElectroGraphic Manufacturing Company, with the dividends declared thereon. She claimed title as assignee of Charles B. Hall, who owned and held 7,000 or 8,000 shares of this stock, and had loaned the same to defendant Cummins, and taken his negotiable receipts or “due-bills” therefor.

Caroline D. Crank sued the Forty-Second Street, Manhattan Hill & St. Nicholas Avenue Railway Company for damages for personal injuries. Judgment was rendered for plaintiff for $2,500, and defendant appeals.

<p>On reargument. For opinion on appeal, see 3 FT. Y. Supp. 45. For order granting motion for rearguinent, see 5 FT. Y. Supp. 946.</p>

A motion by plaintiff, Charles Wood, to set aside a judgment entered by confession by defendant William Mitchell, in favor of Thomas G. Mitchell and others, infants, was denied, and plaintiff .appeals.

Hew York county. Action by Ormond G. Smith and others, successors in business to Street & Smith, against John ti. Ogilvie, to cancel two receipts given him in settlement o£ claims against him by Street & Smith, which came into the hands of plaintiffs. The complaint was dismissed after trial, and plaintiffs appeal.

Action by the First National Bank of Paterson, N. J., and other creditors of the insolvent firm of Halstead, Haines & Co., to recover of the Central National Bank the amount it received as a preferred creditor of said firm, under an assignment made for the benefit of creditors. A demurrer to the complaint was sustained, and plaintiffs appeal.

Alicia Frances Goodwin, individually, and as administratrix of the goods, chattels, and credits of Alice Goodwin, deceased, and Albert S. Thayer, as trustee under the last will and testament of Francis M. Goodwin, deceased, plaintiffs, sued Thomas O’Brien for an accounting. Judgment was rendered for plaintiffs for $4,460.03, and defendant appeals.

Action by Gerritt Smith against Cornelius J. Dumond, for damages resulting from tile want of due care and skill of the latter in treating plaintiff’s broken leg. Verdict and judgment for plaintiff for $1,000, and defendant appeals.

Action by William H. Kennagh against Elizabeth McColgan, executrix, etc., of John McColgan, deceased, to recover an unpaid balance of a legacy due plaintiff. The special term placed the action on the circuit court calendar for jury trial, and plaintiff appeals.

<p>Morgages—Assignment.</p> <p>Plaintiff assigned to defendant “the sum of 8500 out of the moneys due and to grow due ” out of a certain mortgage of 82,800. On foreclosure, $348 was collected. Seld, that defendant was entitled to the same, and was not indebted for half the expenses of foreclosure; there being no evidence that plaintiff was put to any expense in that matter.</p>

, Action for libel by Carl Strakosch against the Press Publishing Company. Defendant appeals from an order vacating an order for the examination of plaintiff before trial.

Action by John V. Lewis against Wallace O. Andrews, to recover the sum of $10,000, money had and received. Verdict and judgment for plaintiff, and defendant appeals.

This was an- action by Annie Kouba against her mother, Maria Horacek, to set aside a deed executed to defendant by her husband and plaintiff’s father, John Horacek, now deceased, on the ground that he was at the time of its execution an imbecile, and incompetent to make any contract. There was a trial by the court, and judgment for plaintiff. Defendant appeals.

Appeal.from surrogate’s court, New York county. This is an appeal from a decree of the surrogate of New York county, denying an application by Charles-J. Phalen, a legatee, under section 2717 of the Code of Civil Procedure, after the expiration of one year since letters testamentary were granted, for the payment by the executors of $10,000 to the petitioner, to be charged against him as a payment on account of his interest in said estate.

Joshua Hendricks and others, attaching creditors of Case & Co., sued to set .aside a judgment recovered on an offer of judgment against said company, and in favor of Amos Morrill, and obtained an order restraining the sheriff from paying to Morrill the proceeds of a sale under an execution issued on said judgment pendente lite. .Prom this order defendants appeal.,

Sarah Bertholf recovered judgment against Alfred Carr, executor, on a claim against an estate, and appealed from an order refusing her motion to be allowed the fees of referees, witnesses, and other disbursements.

William W. A veril 1 sued Amizi L. Barber, James McLain, the American Asphalt Pavement Company, the Hew York Improved Anthracite Coal Company, Andrew Langdon, the Barber Asphalt Paving Company, as stockholder in the American Asphalt Paving Company, against the individual defendants as officers of that company, for alleged breaches of trust, the appointment of a receiver, and an accounting. Defendants appeal from an interlocutory judgment in the case.

Various defendants appeal from a judgment in this suit, which was brought to procure a judicial settlement of the accounts of a deceased testamentary trustee, and for other relief.

Action by Fannie Fruhauf against Henry M. Bendheim, to recover damages for breach of contract to convey land. Defendant appeals from a judgment entered upon a verdict directed in favor of plaintiff.

<p>1. Frauds—Statute of—Promise to Pat Debt of'Another—Evidence.</p> <p>Plaintiff testified that Z., a member of the defendant firm, asked him to continue making advances to B., who was shipping goods to defendant, and to whom plaintiff had previously made advances on such shipments, and that Z. said that the firm would pay all drafts for such advances, until it notified plaintiff to discontinue them. This evidence was contradicted, and it appeared that subsequent advancements by plaintiff were charged to B., and not to defendant firm. On defendant’s refusal to accept drafts, plaintiff wrote it that it “had promised to notify us in time to save us any trouble. * * * We look to you for payment, for it was at your solicitation that we opened an account with B. ” Another letter said that Z. “said he would guaranty ns against any loss whatever, and would telegraph us immediately on B’s. showing any signs of not doing as you expected, in order that we might refuse his drafts and save our money. ” Plaintiff’s testimony as to the interview with Z. was corroborated by another witness, who changed his testimony on cross-examination. Held, that it was a question for the jury whether the advances were made on account of defendant or of B.</p> <p>2. Same—Instructions.</p> <p>Where it was admitted that there was some kind of an agreement between plaintiff and defendant firm, it was error to charge that the first question was whether or not there was an agreement.</p> <p>8. Same.</p> <p>It was error to refuse to illustrate to the jury the distinction between original and collateral undertakings by showing that, if B. became liable to plaintiff for the advances, defendant’s promise was collateral, and to then charge, “You are to determine whether it was an original promise or a collateral undertaking. ”</p>

<p>Executors and Administrators—Ancillary Letters—Foreign Creditors.</p> <p>A foreign executor, who takes out ancillary letters testamentary in New York, becomes a domestic executor, and may be sued at law in that state as other executors by a non-resident.</p>

Action by David Miller against Sarah F. Mead and others, to foreclose a mechanic’s lien. The defendant, Sarah F. Mead, was the owner of certain premises, and by her agent, George W. Mead, entered into a contract with one Herman Gierke to erect certain buildings thereon as specified in said contract, Mead to advance money to the contractor, and sell him the houses, when finished, for a certain sum, which contract was afterwards assigned to one Grippentrog.

<p>Appeal from special term, New York county.</p> <p>Charles T. Nobis sued W. J. Pollock and others to foreclose certain liens Prom a judgment in his favor defendants appeal.</p>

Herman J. Emerson was indicted and convicted for keeping a room to be used for gambling purposes. From an order overruling a demurrer to the indictment and the judgment thereon defendant appeals. For former opinion in this case, see 5 N. Y. Su’pp. 374. Pen.

<p>Executors and Administrators—Liee-Interest in Fund—Bond.</p> <p>Where testatrix clevises her entire estate to her husband for life, with remainder over to her children, it is improper for the surrogate, upon the executor’s accounting, to order him to take the estate as life-tenant, and give a bond to secure the remainder-man, and, in case he should decline to receive it, require him to give a similar bond as a condition of retaining it as executor, as no such condition is imposed on the executor either by law or by the will. Reversing 5 N. Y. Supp. 559.</p>

Plaintiff, Lorenzo D. Blanchard, brings this action to recover certain statutory penalties, and appeals from a judgment sustaining a demurrer to the complaint.

The plaintiff, Sam. S. Utter, obtained a judgment against the defendants, Alexander McLean and Frank T. Brown. Subsequently William D. Southard, George W. Bobertson, and William Corry also obtained a judgment against the same defendants, and moved to set aside the senior judgment of Utter on the ground of fraud. The motion was denied, and from the order denying the motion the moving parties appeal.

The judgment in the suit of Hauselt against Patterson and others was on appeal affirmed in part and reversed in part, with costs. 4 H. Y. Supp. 772. Costs were taxed in favor of all the defendants who were successful on the appeal in one'sum, by Mr. Fine, the attorney of some of them. David Bonner, one of the defendants, moved for and obtained an order for an additional taxation, from which order plaintiff appealed.

Action on certified check by Theresa Lynch against' the First national Bank of Jersey City. Judgment for defendant, after trial by the court without a jury, and plaintiff appeals.

The relators, William Darrow and Charles A. Davidson, residing in Hew York, were, together with David B. Ivison, residing in Hew Jersey, trustees of an estate which owned securities on lands in a western state, the securities being in possession of the Hew Jersey trustee. These securities being assessed at full value in Hew York, application was made to the commissioners of taxes—Michael Coleman et al.—to strike out the assessment.

Action by Lucy F Wyman, administratrix of the estate of William A. Wyman, on a life insurance policy, against Phenix Mutual Life Insurance Company. On the first trial the complaint was dismissed. Plaintiff appealed, and the order of dismissal was reversed, and a new trial ordered. On the second trial the court directed a verdict for defendant, and from the judgment entered thereon, and from an order denying a motion for a new trial, plaintiff again appeals.

Action by Shipman, Barlow, Larocque & Choate against the Bank of the State of Hew York. From an order referring the issues to a referee to hear and determine, defendant appeals.

This was a petition by Frances H. Duelos and Charles H. Benner against Mary S. Benner and others, for the further construction of the will of Hiram Benner, deceased. Both parties appeal from the order made upon the hearing of the petition. For the opinion of O’Brien, J., on that hearing, see 5 FT. Y. Supp. 733.

Action to recover on a contract for advertising, brought by Annie Hazzard, executrix of the will of Edward J. Hazzard, against Alma P. Hoxsie. A verdict for $79.80 was given for plaintiff, and from the judgment entered thereon defendant appeals.

Action by Leopold Loeb against Augustus T. Chur, Charles Elwell, and James W. Elwell, to recover the proceeds of certain bonds. Judgment for defendants, and plaintiff appeals.

<p>On motion for reargument. For original opinion and statement of facts,</p>

Action by Adela L. Hardy against her husband, Frank Hardy, for divorce from bed and board, and alimony. Alimony pendente lite was fixed by the referee at $175 per month, his report confirmed, and defendant appeals.

<p>Appeal from special term, Hew York county.</p> <p>Action by Thomas E. Hogg against John Mack, for damages resulting from the breach of an agreement to convey. Defendant moved for change of venue to Bockland county, which was denied, and he appeals.</p>

<p>Landlord and Tenant—Termination of Lease—Injunction.</p> <p>An injunction against the use of leased premises by the lessee should be denied, when the lessor’s complaint alleges a breach of condition subsequent, forfeiting the lease, and avers that he has elected to terminate the lease, as after such election the lease ceases to exist, and the lessor’s only remedy is by action to recover possession.</p> <p>Appeal from special term, New York county.</p> <p>Action by William Kramer against Gustav Amberg and Henry R. Jacobs, to enjoin the.use of the Thalia theatre, the property of plaintiff. A motion for an injunction was refused, and plaintiff appeals. Opinion of special term, R N. Y. Supp. 240.</p>

Plaintiffs appeal from an order'denying their motion to revive the action as against the executors of Weichers, a deceased defendant.

Action for divorce. Defendant appeals from an order denying a motion for a bill of particulars, and also from an order denying a motion to make the complaint more definite and certain.

<p>1. Judgment—By Default—Setting Aside—Laches.</p> <p>Service of summons and complaint was made upon defendant’s director, the return stating that the other officers were non-residents of the state, and judgment hy default obtained against it in May, 1884. Defendant learned of the judgment early in 1885, but made no motion to set it aside until December, 1887. In the mean time the judgment had been sued on in Pennsylvania, to which suit defendant in-</p> <p>terposed the defense of payment, but made no pretenso that the New York court had not acquired jurisdiction; the affidavit of defense expressly alleging that the action “had been commenced” in New York. The Pennsylvania suit resulted in judgment for plaintiS. Held, on motion to set aside the original judgment, that in view of defendant’s loches every possible presumption is to be indulged in favor of the judgment.</p> <p>Z. Same—Jurisdiction—Foreign Corporation. "</p> <p>Where it appears from the papers in the case that the contract sued on was made in New York, and there is nothing to show that the services thereunder were not rendered here, the objection that the court aquired no jurisdiction because defendant had no property in the state, and the cause of action presumably did not arise therein, cannot prevail.</p>

This is an appeal from a judgment of this court rendered at circuit upon- a verdict in favor of plaintiff and against the defendant for $1,390, for personal injuries caused by the defendant’s carelessness. On or about August 18, 1887, as the plaintiff was about entering the cellar of his residence. Ho. 746 Greenwich street, in the city of Hew York, he was struck on the head and foot by a bar of iron and was severely injured.

Application of George H. Stonebridge, Jr., as receiver of the New York Book Company, for a warrant for the examination of John B. Alden in relation to the company’s property. The warrant was granted, and from an order denying his motion to vacate the warrant Alden appeals.

<p>Reference—Long Account.</p> <p>Defendant, by written contract, engaged plaintiff’s professional services in regard to a large number of “Alabama claims; ” plaintiff’s compensation in one class of cases to be 10 per cent, of the gross amount recovered, and in another class one-half of defendant’s percentage, with aproviso that such half should not be less than 10 percent, of the gross amount. Plaintiff brought an action alleging the recovery of various sums by defendant in 73 cases, and that all of these cases were of the class in which plaintiff was entitled to one-half of defendant’s percentage, and he sought to recover the excess over 10 per cent., which he admitted had been paid. Defendant’s denial was in such form as to require plaintiff to prove each of the 73 items; and for a further defense he pleaded a receipt from plaintiff for 10 per cent, in full in each of the 73 cases. Held, that a reference was properly ordered.</p>

<p>1. Contracts—Pleading.</p> <p>A bridge tunnel company agreed to pay plaintiff, in consideration of his services in obtaining the consent of property holders to the tunnel, a certain percentage when the company should have the money, it being left to the company to say when that time arrived. In an action upon the contract plaintiff alleged that the company had neglected and refused to receive and collect money»payable to it, whereby the company did not have money in its treasury to pay the claim of plaintiff. Held, that plaintiff could not, under the guise of making pleadings conform to the proof, do away with the effect of his admission that there was no money in the treasury of the company applicable to his claim.</p> <p>•2. Same—Performance.</p> <p>It appeared that a certain amount of stock was subscribed, but that the company abandoned the prosecution of the enterprise because of its failure to obtain the consent of the municipal authorities to the construction of the tunnel. Held, that a cause of action for the alleged neglect was not made out.</p>

<p>1. Attachment—Grounds—Affidavit.</p> <p>The tact that defendant gave its notes for a large amount for the accommodation of another, and judgment was recovered on such notes by the latter, may be made the basis of an attachment on the ground that defendant has or is about to dispose of its property with intent to defraud its creditors.</p> <p>2. Same—Waiver of Irregularity.</p> <p>An irregularity in an attachment, in reciting that defendant had disposed of its property with intent to defraud its creditors, instead of reciting, as the fact was, that it was about to dispose of its property by means of a fraudulent judgment, is not available to defendant, where no reference is made to such irregularity in the notice of motion to vacate the attachment, as required by the rules of practice.</p> <p>3. Same—Affidavit.</p> <p>The affidavit of the attorney of plaintiff that the amount sued for was due over and above all counter-claims is sufficient, where it appears that the note upon which the action was brought was in the possession of the attorney, that at the time when application was made for the attachment defendants had made default, and plaintiff was entitled to enter judgment for the full amount of the note, and that in another action a referee had reported an indebtedness upon the note equal to the sum named in it.</p> <p>4. Same—Issuance before Final Judgment.</p> <p>That plaintiff was entitled to judgment upon the note when the attachment issued is no reason for setting it aside, as under Code Civil Proc. US. Y. § 638, an attachment may be issued at any time before final judgment.</p>

Action by Emil Weiler against the Manhattan Railway Company for damages for injuries alleged to have been caused by defendant’s negligence in the operation of a train on its elevated road. Verdict and judgment for plaintiff for S10.U00, and costs. Defendant appeals.

Action by James Lyle against the Manhattan Bail way Company to recover damages for injuries alleged to have resulted from defendant’s negligence in the operation of a train on its elevated road. For statement of facts, see Weiler v. Manhattan By. Co., ante, 320. Verdict and judgment for plaintiff for $15,000, and defendant appeals.

Action by the People’s Bailroad Company of Syracuse against the Syracuse, Binghamton & Hew York Bailroad Company, to enjoin defendant from interfering with plaintiff in laying its track across defendant’s road, and running its ears thereon. On December 27, 1888, upon an ex parte application to Hon. A. J. Horthrup, county judge of Onondaga county, a preliminary injunction, in accordance with the prayer in its complaint, was granted to the plaintiff.

Action by William Beary against John G-. Hoster. Defendant moved to strike the cause from the circuit court calendar on the ground that it was not a jury case. This motion was granted, and plaintiff appeals.

The order denied a motion made in behalf of the defendants, Aiken'and Darrowman, to set aside a sale of the premises under the judgment.

An appeal by the county treasurer of Niagara county from an order made by the county judge of that county, in proceedings instituted before him under provisions of chapter 907 of the Laws of 1869, as amended by chapters 283 and 925 of the Law's of 1871, permitting town and other municipal corporations to issue bonds to aid in the construction of railroads, and applying the taxes assessed upon the railroads aided in their construction by the issue of such bonds to the…

An appeal from a judgment in an action to foreclose a mechanic’s lien. The notice was filed in the Niagara county clerk’s office on the 6th day of September, 1884, and the amount claimed to be due ¿he plaintiff, as stated therein, was $79.09, for work and labor and materials supplied by the plaintiff.

The defendant was a trustee of a school-district situated in the county of Wayne, and the plaintiff was a tax-payer residing therein. The defendant, acting in his capacity as trustee, on the 14th day of November, 1885, laid a tax upon the taxable property within the school-district for the total amount of $150.12, of which sum $6.30 was assessed upon the plaintiff’s property.

The plaintiff is the receiver of the Evening Express Printing Company, a business corporation organized under the laws of the state of New York. His appointment was made in an action prosecuted by the people of the state of New York against the said corporation for its dissolution on account of its insolvency, and he entered upon the discharge of his duties on the 12th day of April, 1882.

<p>" Appeal from judgment on report of referee.</p>

Action by P. Allen McMullen against Joseph B. Peart, for goods sold and delivered. The action was commenced in tho municipal court of the city of Rochester, where plaintiff had judgment for want of an answer, which judgment was affirmed on appeal to the county court. Defendant now appeals to this court.

These are actions by James Coddington and Theodore ,H. Coddington, respectively, against Eunice J. Bowen. Judgment was rendend in each case for the defendant, and the respective plaintiffs appeal.

This was an application by Jane A. May, executrix of Yashti Acker, deceased, for a final settlement of her accounts. There was a reference, and decree on the referee’s.report. The executrix appeals from an order refusing to settle her exceptions and amending the order of reference nune pro tune.

<p>Appeal from circuit court, Yates county.</p> <p>Action by Christopher Halpin against Hotchkiss S. Finch. Judgment for plaintiff. Defendant appeals.</p>

Jane A. May, executrix of Vashti Acker, deceased, appeals from an order denying the application of the executrix to open the decree settling her accounts, and to send the issues back to the referee to take further testimony, or for a resettlement of the terms of such decree.

Action by James S. McKay and others, as superintendents of the poor of Steuben county, against William Welch, Jr., as overseer of the poor of the town of North Dansville, in Livingston county. Judgment for plaintiffs. Defendant appeals.

<p>Appeal from Erie county court.</p> <p>Action by Edward H. Pixley against John 0. Ingram and another. A motion for a new trial was granted after a verdict for plaintiff, and plaintiff appeals.</p>

<p>Conversion—When Action will Lie.</p> <p>One who, by mutual mistake in the settlement of an account, innocently receives and cashes a check overpaying the amount due him, is not liable therefor in an action of tort for converting the check to his own use.</p>

Proceeding by William S. I-Iollingswortli against Lucy O. Moulton and another, executors of the will of John F. Moulton, deceased. The claim was referred under the provisions of 3 Rev. St. N. Y. (7tli Ed.) p. 2299, § 36, and from the judgment entered on the report of the referee the claimant appeals.

Action by Albert W. Elliot, by his guardian ad litem, against the New York Central & Hudson River Railroad Company. Judgment was entered on a verdict for plaintiff, and a motion for a new trial was denied, and defendant appeals.

Action by George C. Buell and others against Benjamin F. Van Camp. An attachment procured by plaintiffs was vacated on the motion of the Orleans County National Bank. The motion to vacate was made in the form of notice of motion on the papers used in obtaining the attachment. Plaintiffs appeal.

Action by Ellen Hanson against Walter M. Aikman for personal injuries. ■Verdict for plaintiff for $2,500, and from a judgment entered thereon, and from an order denying a motion for new trial, defendant appeals.

<p>Appeal from special term, Mew York county.</p> <p>Defendant, Charles G. Dodge, appeals from an order disallowing and striking out certain interrogatories upon the settlement of questions for a proposed deposition.</p>

An action in tort by James Chaskel against the Metropolitan Elevated Railway Company, Manhattan Railway Company, Cyrus Field, et al. After issue was joined plaintiff procured an order for the examination before trial of the defendant Field. This order defendants moved to vacate for the insufficiency of the affidavit on which it was based and the incompetency of the testimony sought thereby. The motion to vacate being allowed, plaintiff appeals.

Action to recover a deficiency remaining aftersale under a judgment of mortgage foreclosure. Defendants, George W. Poillon and others, appeal from an order denying a motion to vacate an order made ex parte after the commencement of the action, granting plaintiff leave to sue nune pro tune as of a date prior to the commencement of the action. For the opinion of the special term, on demurrer to the complaint, see Insurance Co. v. Gage, 3 N. Y. Supp. 398.

<p>1. Judgment—Payment.</p> <p>In an action upon a judgment for about $10,000 against a corporation, of which plaintiff had become owner after several assignments, it appeared that R., a former assignee, was one of defendant’s trustees, and that at a meeting of the trustees, at which R. was present, a statement of the liabilities of defendant was read, signed by R., and entered upon the minutes, in which the liability of defendant to R. was stated at about 81,000, although he was then the holder of the judgment. This statement was to be used in the reorganization of defendant, in which pro vis-</p> <p>ion was to be made for the payment of its liquidated debts. Held, that evidence of such statement, offered in support of the plea of payment of the judgment, should have been admitted. »</p> <p>• 3. Same.</p> <p>It further appeared that while E\, another assignee, and who was a stockholder in defendant corporation, was the owner of the judgment, a resolution offered by F. at a stockholders’ meeting was adopted, to the effect that all the debts of defendant, including judgments, should be paid by the issue of certain stock. Held, that the exclusion of such resolution, offered in evidence as the basis of a further offer to prove that the judgment in question had been settled as contemplated by the resolution, was error.</p> <p>8. Same.</p> <p>More than 20 years having elapsed since the judgment was rendered, evidence that no execution was ever issued on the judgment was admissible on the question of payment.</p> <p>á. Same—Res Adjudicata.</p> <p>A denial upon the merits of a motion to set aside the judgment, the question of</p> <p>• accord and satisfaction and payment not having been included in the scope of the motion, or determined, is not a bar to the consideration of the question of payment on the trial of the action.</p>

<p>Appeal from circuit court, Cattaraugus county.</p> <p>Motion made by the defendant for a new trial, upon a case and exceptions ordered to be heard at the general term in the first instance, upon a verdict rendered at the Cattaraugus circuit, in January, 1888. The plaintiff is the assignee of a policy of life insurance issued by defendant, and which was so assigned by the personal representative of Edwin A. Walter, deceased, who-was the insured.</p>

ICeziah Paine owned land in Westchester county, which she sold to Zeba H. Kitchen, who assumed a mortgage executed by her to Stephen C. Sutton, the defendant. All the parties then believed the mortgage to be the first lien on the land, having examined the title with the object of satisfying themselves on that point.

<p>Appeal from special term.</p> <p>Henry M. Crippen filed a claim against Sarah A. Crippen, as executrix,, and James Feeney, as executor, of the will of Riley Crippen, deceased.</p>

Action by Charlotte Peck against the Fonda, Johnstown & Gloversville Railroad Company for damages occasioned to plaintiff’s land by the overflowing of Gayadutta creek. The plaintiff claims that this overflowing was occasioned by the obstruction caused by a bridge with its piers and abutments constructed by the defendant. There are two causes of action set forth in the complaint of the same general character,—one happening in February, 1886; the other in April, 1887.

Suit by Bridget Corbett against the city of Troy for damages for injuries received by falling on an icy sidewalk. Judgment for plaintiff, and defendant appeals.

Albert Scott sued the Central Park, North & East River Railway Company, to recover for an assault committed on him by an employé of the company. Judgment for the plaintiff for $500, and defendant appeals.

The Glen Cove Manufacturing Company sued Leopold Sutro for slander, and appeals from an order denying motion for examination of defendant before trial.

<p>1. Publication—Death of Plaintiff—Action by Trustee and Cestui que Trust.</p> <p>A woman, prior to her marriage, having a reversionary interest under a will, executed a marriage settlement, conveying her interest to a trustee. Afterwards she brought an action to annul a judgment construing the will, which was supposed to affect the reversionary interest, and joined as plaintiff the trustee. Meld, that the death of the trustee pending publication of summons suspended the action until his successor was appointed, and rendered the order of publication inoperative.</p> <p>3. Same.</p> <p>Code Civil Proc, IT. T. §§ 758, 759, which relate to cases in which the cause of action in whole or in part survives to the surviving plaintiff, have no application to this case, as the married woman and her trustee must have sued in different rights, the one as beneficiary and the other as trustee, and whatever right of action the trustee had passed, not to the beneficiary, but to his successor in the trust.</p> <p>3. Same.</p> <p>The trustee, as the holder of the legal title to the reversionary interest, was the proper party to bring any action necessary to its protection, and, in the absence of a showing of special circumstances, it cannot be said that he was not a necessary .party.</p> <p>Macomber, J., dissenting.</p>

In denying the motion along with similar motions in other actions by the same plaintiff Justice Patterson said: “The motions to vacate orders extending time to answer, or to limit the time granted, must be denied in each of these actions. The defendants obtained orders for the examination of the plaintiff, and to enable them to prepare their respective answers, and, upon examining the papers upon which such orders were obtained, it is clear that they were properly granted.

Action by the Kinney Tobacco Company against Oscar Mailer, to recover damages for infringement of a trade-mark, and to enjoin defendant from a continuance of the same. Judgment being rendered for plaintiff, the defendant appeals.

Action by Sigmund Blumenthal to enjoin Adolph Strauss and Morris Strauss for using-in their business the name of the old firm of Strauss, Blumenthal & Co., which was composed of plaintiff and defendants. Injunction was granted, and from the order granting it defendants appeal.

<p>Police—Dismissal—Certiorari to Review.</p> <p>Where the evidence concerning the misconduct of a policeman is conflicting, and there is sufficient evidence, if credited, to establish his alleged offense, the order of the commissioners discharging him will not be reversed; as, under Code Civil Proe. N. Y. § 2140, the same rule governs the review of such a question on certiorari as would determine a motion to set aside the verdict of a jury as against evidence.</p>

On exceptions from circuit court, Hew York county. Action for damages for personal injuries, by Bose H. Hanrahan against the Manhattan Bailway Company. Verdict for plaintiff for $2,000, and defendant appeals.

Action by Catherine McIntyre against Patrick Costello and others to recover -dower. From a judgment entered on a verdict directed for defendants, plaintiff appeals. Code Civil Proc. § 835, provides that “an attorney or counselor at law shall not be allowed to disclose a communication made by his client to him, or his. ad vice given thereon in the course of his professional employment.”

<p>Motion for new trial on exceptions.</p>

Appeals from special term, New York county. These appeals were taken by the respective executors of A. H. Barney, Mary E. Brooks, Anne Mahoney, and Max Weil, from an order denying motions to revive proceedings for vacating certain tax assessments.

Action by John L. Macauley, as surviving partner, etc., against Joseph R. Palmer and Robert B. Kingsbury, to recover the sum of $17,763.87 and interest since April 10, 1864, being the proceeds of certain cotton sold by defendants as agents of plaintiff’s firm. Defendant Kingsbury was not served with process. From a judgment entered on dismissal of the complaint after trial plaintiff appeals.

Action by Robert Hillis against William Bleckert, to recover money received as agent. Plaintiff procured an order for the arrest of defendant, which order was, on motion of defendant, vacated, on the ground that the complaint contained no allegation authorizing an arrest in a civil action. Prom the order vacating the order of arrest plaintiff appeals.

Defendant, Edward Sutornis, appeals from an order denying a motion to vacate an order of arrest; also from a judgment on a verdict for plaintiff entered by direction of the court.

Action by Poo Long against Clm Fong for conversion of money. Prom a judgment entered upon a verdict in favor of the plaintiff defendant appeals.

This is an appeal by defendant from an order denying its motion for a “ stay of all proceedings under the judgment” of dissolution of the corporation and appointment of a receiver. For the opinion of Barrett, J., holding that the corporation had forfeited its franchises, and should be dissolved, see 3 N. Y. Supp. 401.

In the matter of the judicial settlement by Mary B. Clark, as executrix of Lemuel B. Clark, deceased, of the account of said Clark as executor of Freeman J. Fithian, deceased. The referee reported, with reference to the item in dispute, as follows, after finding that certain moneys of Fithian’s estate came into the hands of Clark: “ (4) That the moneys so received by said Clark were deposited by him in his own private bank-account.

<p>Appeal from circuit court, Hew York county.</p>

On exceptions from circuit court, Hew York county. Action on a written contract by Margaret A. Oliver against John L. Moore, executor of the will of Harriet Gross, deceased. The court directed a verdict for plaintiff for .$499.22, and ordered the exceptions of both parties to be heard at general term.

Action by the United States Laud & Investment Company against William G. Bussey to recover possession of 469 bonds. Plaintiff appeals from an order of reference to ascertain the real value of the bonds. Code Civil Proc. H. Y. e. 14, tit, 2, provides for a proceeding to recover chattels by delivery of an affidavit to the sheriff, setting forth plaintiff’s title, etc., and the actual value, and executing a bond, with sureties to be approved by the sheriff.

Action by Mary McCabe, administratrix, etc., of Patrick McCabe, deceased, against the Manhattan Railway Company, for damages for personal injuries received through defendant’s alleged negligence. Verdict and judgment for plaintiff for $3,500, and defendant appeals. For statement of facts see Weiler v. Railway Co., ante, 320.

At chambers. Motion to compel assignment of a mortgage. Action by the Citizens’ Savings Bank, first mortgagee, against Charles J. Foster, and Conrad Stein and John B. Hillyer, second and third mortgagees, to foreclose a mortgage made by Foster to it. The premises were sold under a judgment in the action, but the purchase was not completed.

<p>1. Police Justices—Removal—Jurisdiction of Supreme Court.</p> <p>Const. N. Y. art. 6, § 18, provides that justices of the peace, and justices and' judges of inferior courts not of record may be removed for cause by such courts as may be prescribed, and Code Crim. Proc. N. Y. § 133, designates the general term of the supreme court as the court to make such removals. He7.cZ, that the charter of the city of Buffalo, (Laws N. Y. 1870, c. 519, tit. 3, § 34, as amended by Laws N. Y. 1886, c. 17,) which authorizes the mayor to remove the police justice of that city, does not oust the supreme court of jurisdiction.</p> <p>2. Same—Misconduct—Acts Committed beeoke Teem Began.</p> <p>In a proceeding for the removal of a police justice, a general charge of misconduct in office during his present term of office will not justify an inquiry into acts committed by such justice before such term began, though such acts are set forth in the specifications accompanying the charge.</p> <p>S. Same—What Amounts to Misconduct.</p> <p>It is not sufficient cause for the removal of a police justice that on account of passion and prejudice he illegally continued a bastardy case for two months, and kept the defendant in jail during such time, when it appears that no objection was made to such continuance by the prisoner.</p> <p>4. Same.</p> <p>Nor is it sufficient cause for such removal that he maliciously uttered from the bench slanderous words regarding the mayor of his city, and the county judge of his county.</p> <p>5. Same.</p> <p>Nor that he suspended sentence on a prisoner convicted of assault and battery.</p> <p>6. Same.</p> <p>Nor that he objected because the police commissioners detailed certain policemen for duty in his court, and told one of the policemen to tell the commissioners that he did not want the policemen there.</p> <p>7. Same.</p> <p>Nor that in his return on an appeal he maliciously referred to the appellant’s attorney as “a penitentiary outcast, and legal pirate, who has made a practice of hanging around the police court and penitentiary seeking whom he might devour, and persuading ignorant persons to appeal when he knows there is no cause for reversal, often causing them unwittingly to commit perjury, ” when it appears that such statements are substantially true.</p>

<p>Appeal from special term, New York county.</p>

Action by Alice Knight against the Supreme Council of the Order of Chosen Friends to recover insurance due on the life of her deceased husband, John Knight. Verdict for plaintiff.. Defendant appeals from an order denying its motion for a new trial.

Defendants appeal from an order permitting plaintiff, Hiram Exstein, to discontinue the action upon payment of one bill of costs.

Action by Horace B. Claflin and others against Evolin B. Robertson and others. Defendants appeal from an order of the county court allowing a discontinuance of the action on the payment of $10 motion costs.

<p>that it creates no issue requiring a jury trial, under section 3068, which provides for such a trial in the county court on an appeal from, a justice, when an issue of fact was joined in the justice’s court, and the judgment demanded exceeds §50.</p> <p>Appeals from Monroe county court.</p> <p>William Moore, overseer of the poor for the town of Parma, brought four actions before a justice, against David Trimmer, for the statutory penalty of $50, for a violation of the excise laws. Defendant filed a counter-claim, alleging that plaintiff was indebted to him in the sum of $100, money advanced to plaintiff officially, who agreed to refund it if he should at any time bring an action against defendant for selling liquor contrary to law. Code Civil Proe. N. Y. § 501, authorizes any defendant to file a counter-claim consisting •of any cause of action against plaintiff arising out of the contract set forth in plaintiff’s complaint as the foundation of his claim, or,.if the action be on •contract, any other cause of action arising on contract existing at the commencement of the action. No proof tending to establish this claim was offered, and the justice gave judgment for plaintiff. Defendant appealed to the county court, which struck the actions from the jury calendar, and ordered them to be heard by the court. Defendant appeals.</p>

Michael Monaghan, a policeman in the city of New York, was dismissed by the board of police commissioners for improper conduct, and brings certiorari to review' the order.

Action by the Pittsburgh Carbon Company, (Limited,) against the Brush Electric Light Company, for goods sold and delivered. Frank C. McMillin, as receiver of the United Carbon Companies, laid claim to the debt, and was substituted as defendant, the original defendant being discharged on depositing the amount due for the goods. The substituted defendant obtained judgment for the money, and plaintiff appeals.

The first action is by John B. Weber, surviving partner of the firm of Smith ■& Weber, against Joseph Barrett and wife, to foreclose a mortgage executed by defendants for $3,000. The second action is by Barrett and wife against Weber, to have the bond and mortgage in question canceled on the ground that they were procured, by fraud and duress. The tv/o actions were tried together, and a judgment of foreclosure rendered, from which Barrett and wife appeal.

Action by Charles E. Simmons against John Bigelow and others, executors of the will of Samuel J. Tilden, deceased. Plaintiff appeals from an order denying a motion for a compulsory reference.

Inquisition of lunacy in regard to Hiram P. Abbey. The jury rendered a verdict in favor of the supposed lunatic. The court refused to confirm the verdict, and ordered a pew trial. The supposed lunatic appeals.

<p>1. Defective Highways—Contributory Negligence—Province of Jury.</p> <p>In an action against a town for death caused by an accident arising from a dangerous highway, where the evidence shows that the accident occurred while the deceased was driving with a heavy load down a steep descent, and the testimony is conflicting as to whether his wagon had a brake and whether he was in a position to use it, the question of contributory negligence should be left to the jury.</p> <p>2. Same—Prior Condition of Highway.</p> <p>Where the danger arose from the general construction of the highway, which had remained in the same condition for 27 years, the jury should be allowed to take that fact into consideration in deciding the question of negligence.</p> <p>3. Same—Ownership.</p> <p>The fact that the defective highway was on land belonging to a railroad company should also be considered by the jury in determining the question of negligence.</p> <p>4. Same—Want of Funds for Repairs.</p> <p>In such an action, evidence that 18 months before the accident.the highway commissioner did not have sufficient funds with which to repair the highway is not admissible in defense.</p>

Action by Herman C. Baskin and others, heirs of William R. Baskin, deceased, against John P. Andrews and others, to enjoin the enforcement of a certain judgment against said decedent. Judgment for plaintiffs. Defendants appeal.

Action by Robert E. Minto and Roderick J. McDonald, partners as Minto & McDonald, against August Baur and Thomas J. Byrnes, partners as Baur & Byrnes, and William Austin, to foreclose a mechanic’s lien upon premises of which Baur & Byrnes were lessees and Austin the owner.

Assumpsit by Joseph Feiber against William Smith and William W. Brown, upon an undertaking given by them upon the issuance of a writ of attachment against one Thomas McGrath by George T. Matthews. The writ was afterwards vacated, and said McGrath assigned and transferred bis claim for damages on the undertaking to plaintiff. Defendants answered, setting up four separate defenses. The demurrer was sustained at special term, and judgment entered thereon. Defendants appeal.

This action was brought by Josephine McBride against R; T. McBride, to procure a judgment of limited divorce on the ground of cruel treatment. The action was brought to trial before a jury, at a circuit court, which found in favor of plaintiff on some of those issues, and against her on others. The case was thereafter brought on for final hearing before Mr. Justice Barrett, at a special term of the court, upon the findings of the jury and the testimony taken upon the trial.

<p>Appeal from circuit court, New York county.</p>

<p>1. Executors and Administrators—Accounting—Payment of Legacies.</p> <p>Where the whole amount in the executor’s hands, including a doubtful mortgage for $5,000, is but $21,000, and there are specific legacies unpaid and in course of litigation amounting to $23,000, it is error to direct the executor to pay $8,000 to residuary legatees. ' ,</p> <p>2. Same—Disbursements—Referee’s Fees.</p> <p>Where the referee certified that there were actual hearings before him on 14 different days, that he had spent 5 days in the preparation of his report, and that there had been 10 adjournments at the request of the parties, and the executor charged in his bill of costs $174 paid or incurred to the referee for 29 days at $6 per day, it was error for the surrogate, without any proof to impeach the referee’s statement or the executor’s charge? to reduce the allowance to $132.79.</p>

<p>Limitation op Actions—Partnership—Accounting.</p> <p>When there is a considerable amount of assets uncollected and debts unpaid at the dissolution of a partnership, and no complaint is made to the liquidating partner by the others that he is not adjusting the affairs of the firm with sufficient dispatch, a period of a little less than two years is not an unreasonable delay in settling the business, and the statute of limitations does not begin to run against an action for an accounting between the partners within that time.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Emil Kosmak against the mayor, aldermen, and commonalty of the city of New York, to recover damages for defendant’s alleged negligence. Verdict and judgment for defendant. Plaintiif appeals.</p>

<p>Appeal from surrogate’s court, Hew York county.</p> <p>A decree was entered by the surrogate amending a former decree concerning the interest on delinquent taxes paid by the estate of William F. Front, deceased. By the amended decree the estate was required to pay interest which had been remitted in the original decree, and from which the estate claimed legal exemption. From this amended decree the administrators of the estate appeal.</p>

<p>Appeal from an order confirming the report of a referee.</p>

Application of Alfred Roe and William Cruiksbank, executors and trustees under the will of Elizabeth F. Floyd, for leave to sell certain real estate held by them in trust. From an order confirming a referee’s report and granting the application certain infant devisees appeal.

<p>Appeal from special term, Hew York county.</p>

<p>Appeal from circuit court, Hew York county.</p> <p>Plaintiffs sued defendants to recover an alleged balance due on a shipment of fruit. The court ordered judgment for defendants, and plaintiffs appeal.</p>

<p>■ Appeal from special term, Hew York county.</p> <p>Close, an attorney, appeals from an order punishing him for contempt.</p>

Henry Degener sued Mary A. Stiles and others to foreclose a mortgage, one of the conditions of which was that on default the mortgagee, without consideration as to the value of the property, should be entitled to a receiver. From an order refusing to appoint, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>This is an action by James M. Hill against Margaret Haberkorn, to enjoin defendant from performing as an actress under the management of any other person than plaintiff. On June 4, 1881, the parties entered into a written contract as follows: “For and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby acknowledged, I, Miss M. Mather, of the city of New York, state of New York, by this contract hereby bind and engage myself to Mr. J. M. Hill, of the city of Chicago, state of Illinois, manager, to act under his management the characters which may be allotted me in such plays as he may produce in such cities, and in such theaters, and at such times, as he may direct, and to commence on or about June 4, 1881, and continue during the acting weeks of six (6) years. And I further agree to act and perform under the direction of said J. M. Hill, during the whole term above mentioned, all characters in which I may be cast in a correct and painstaking manner, and to conform to and abide by all rules and regulations of the theater adopted by the party of the second part, and not to play or perform for any other person, gratuitously or for profit, during the above seasons, from the date of this agreement, without written consent. And I further agree that if at any time the said manager, J. M. Hill, is not satisfied with the manner in which I perform the duties for which the said manager has contracted with me in good faith, or if I am, in his judgment, inattentive to business, careless in the rendering of characters, or guilty of any violation of the rules, then I hereby release the said manager from all the provisions of this contract, also from any claim for damages for any accident that may occur to me while in his employ. Margaret Mather. [Seal.] J. M. Hill. [Seal.] Signed in presence of W. W. Bowlbt. 1 hereby accept the above contract on the terms and conditions therein stipulated, and bind myself in return to pay said Miss M. Mather, when services are faithfully rendered as above, (usual performances and holiday matinee performances to constitute a week,) the sum of twenty-five (25%) per cent, of the net profits for the season commencing on or about September 1, 1882, and fifty (50%) per cent, of the net profits each season thereafter; it being understood that the season of 1881 and 1882 shall be devoted to study and general preparation as suggested by the said J. M. Hill. It is further agreed and understood that the said Miss M. Mather is to have no direction in the business, as this is not a copartnership, but an arrangement where the working interest above stated is given as compensation for services rendered; and it is further agreed that should Miss M. Mather, party •of the first part, refuse to fulfill this agreement, or attempt to perform at any other theaters than those selected by said J. M. Hill, then J. M. Hill, party ■of the second part, shall have the right, .by injunction or other legal process, to restrain Miss M. Mather from so performing. In testimony whereof the contracting parties have hereunto set their hands in the city of Hew York this fourth day of June, A. D. 1881. Margaret Mather. J1. M. Hill. Witness: W. W. Bowlby.”</p> <p>On February 24, 1887, plaintiff and defendant entered into a second contract as follows: “This agreement dated this twenty-fourth of February, A. D. 1887, by and between J. M. I-Iili, of the city of Chicago, and state of Illinois, party of the first part, and Miss Margaret Mather, of the city of Buffalo, and state of Hew York, party of the second part: Whereas, Miss Margaret Mather, party of the second part, has been acting the principal parts in the legitimate drama under the management and direction of the said J. M. Hill, party of the first pare, for a series of years under a contract providing for an equal division of the net profits arising from that business, and each being perfectly satisfied with the result of the experience,—said J. M. Hill with the acting of said Miss Margaret Mather, her loyalty and application to her chosen profession; said Miss Margaret Mather with the business ability of said J. M. Hill,—and the terms of the contract just expiring,—in fact, both.parties hereto, being entirely satisfied with the part that each has taken in the past agreement, and the general outcome thereof, do hereby enter into the following agreement, that is to commence at the expiration of the present contract, viz., June 4, 1887. This second contract, or continuation •of the one now in force, it being upon the same terms, is to cover a period of six years, commencing June 4, 1887, and expiring June 4, 1893. In and for this period Miss Margaret Mather agrees, in consideration of one dollar each to the other in hand paid, the receipt of which is hereby acknowledged, to act under the direction of the said J. M. Hill, and at such times and places •during the theatrical season as he may elect. It is expressly understood and agreed that the said Miss Margaret Mather will act at no time under the management of any other party without the consent of said J. M. Hill in writing expressed. A correct account of receipts and expenditures shall be kept, as in the past, and the books containing such accounts shall be open at any and all times to the inspection of Miss Margaret Mather, or, should she desire a copy of said books, the same shall be furnished her at such times as she may elect by the said J. M. Hill. The personal expenses, excepting railway tickets, of each party to this contract shall be an individual matter, and shall not be entered as expenses in the running of the Margaret Mather Company; all other expenses, such as salaries of the company supporting Miss Mather, printing, advertising, rentals, and in fact all expenditures required in the conducting of the business, shall be taken from the receipts of said organization, and the remaining sums shall be equally divided between the said J. M. Hill and the said Miss Margaret Mather, parties to this contract. A full settlement of the business shall be made at the close of each and every season. In witness whereof we hereunto set our hands and seals this twenty-fourth day of February, A. D. 1887. J. M. Hill. [Seal.] Margaret Mather. [Seal.] Witness: E. Hopkins, Jr.”</p> <p>At the close of the theatrical season of 1888 a dispute arose between the parties as to the state of the accounts, and, an attempt at amicable adjustment having failed, defendant brought suit for a partnership accounting, but was defeated on the ground that no partnership relation existed. Pending that action, defendant, without plaintiff’s consent, entered into a contract with Gilmore & Tompkins, theatrical managers, to act under their management during the ensuing season. The object of this action is to enjoin her from carrying out that contract. The material portion of defendant’s answer was as follows: “(3) And the defendant, upon information and belief, further alleges that the plaintiff, disregarding his said agreement and his obligations as a manager and partner, as aforesaid, has at various times since the commencement of said copartnership to the time of the commencement of this action applied to his own use, from the receipts, moneys, and assets of said co-partnership, large sums of money, which have greatly exceeded the portion and amount thereof which he was entitled to receive and withdraw under the terms of said agreement; that he has charged to account of expenses and disbursements of said copartnership, and to the defendant, large sums of moneys which were laid out and expended upon his own individual account, and were properly chargeable only against himself personally; that he has mingled his own individual account and other business enterprises with the said partnership account; that he has, without defendant’s authority or consent, entered into rash and reckless speculations with the partnership funds, assets, and moneys, and deprived the defendant of her share of the net receipts and profits which properly belonged to her under said agreement; that without the knowledge or consent or authority of the defendant the plaintiff used and applied the copartnership funds and moneys belonging to the defend ant to the purchase of a certain amount of stock, of which the defendant has never had possession. The same always and still remains in the possession of the plaintiff in a theatrical enterprise, in Chicago, in the state of Illinois, known as the ‘ Columbia Theater, ’ and, to induce ,the plaintiff to make no objection when she learned of the same subsequently, the plaintiff falsely represented and stated to the defendant, with the intent to deceive her, that the same was a good investment; that he had taken the theater for a debt from a person'by the name of Hr. McConnell, and that his (plaintiff’s) banker in Chicago was also a stockholder in the same; that to the time the last said agreement of partnership was signed, defendant believed these representations of the plaintiff, and was misled and induced thereby to sign and execute the same, and to continue such copartnership, also relying upon the repeated statements and promise of the plaintiff that he would render to her a full accounting from the beginning, which he has never done; that, as a matter of fact, the said representations of the defendant were false and known by him to be false; that the said McConnell continued to be one of the principal owners in said theater in Chicago, which, had it been known to the defendant, she would have immediately objected to the transaction, as she had been told repeatedly by the plaintiff that the said McConnell was not worthy of confidence; that the said investment or purchase of stock was not in any sense a good one, and the said banker did not own any of the stock, or have any interest therein, or in the enterprise, except as security for a loan made by him; that said stock was and is worthless, and its purchase by the plaintiff with the copartnership money, or moneys belonging to the defendant, was a willfully rash and reckless speculation upon the plaintiff’s part, and made by him for his own personal gain and advantage, to the disregard of the interests of the defendant; that to defendant’s knowledge the plaintiff has neglected and failed to attend to his duties as manager and copartner, as aforesaid; upon information and belief that the said books of account consist of about twelve books, and, upon defendant’s husband and her attorneys attempting to make an examination of them, it was found impracticable to do so, either at the office of the plaintiff or anywhere else; that it was and is necessary that said books of account should be examined by an expert accountant to ascertain their correctness, and to obtain a correct knowledge of the accounts of the said copartnership and of the plaintiff and defendant herein; that the plaintiff, previous to the commencement of this action, was requested to submit the books and accounts of the copartnership to such an expert accountant to be jointly and mutally selected by both parties hereto, which request was refused by him. (4) And the defendant further alleges that said acts and misconduct were without her knowledge and consent, and that she did not learn of the falsity of said representations by the plaintiff in connection with the purchase of said stock until after the signing of the last agreement, and shortly previous to the commencement of the action hereinafter mentioned and referred to; and the defendant further alleges that the plaintiff, with the intent to deceive her, concealed the fact in relation to the same.”</p> <p>The court (Andrews, J.,) granted the injunction, and defendant appeals.</p>

Henry Mason and others appeal from a decree of the surrogate’s court, admitting to probate the last will and testament of Louis C. Hamersley, deceased.

<p>1. Judgment—Res Adjudicata—Actions for Torts.</p> <p>_ A judgment in an action by a partnership for injuries to property by the operation of an elevated railroad is no bar to a subsequent action by one of the partners for personal injuries resulting from the same unlawful acts of the company, and the subsequent acquisition by that partner of all the partnership’s interest‘in the claim for injuries to the property does not change his rights, as the question whether items of damage must be included in an action depends upon their ownership at the commencement of the action.</p> <p>2. Statute of Limitations—Personal Injuries—Continuing Trespass.</p> <p>The complaint alleged that plaintiff suffered great personal injury from the unlawful acts of defendant, an elevated railroad company, in using its unlawful structure, and unlawfully and wrongfully running its trains, until in 1879 the plaintiff was made ill thereby, and suffered great pain and loss of health and strength therefrom, which resulted in 1881 in a permanent injury to the ear and nervous system, including a total loss of hearing in one ear; and that in a further attempt to continue his business he received further injuries, which caused, in 1884, an almost total loss of sight in both eyes, and prostration of the nervous system. It appeared that in 1880 a cataract began to form on his right eye, and that the subsequent condition of his eyes may have been accounted for by this. The cataract was not caused by the defendant’s trespass. The difficulty with the ear and nervous system commenced early in 1879, and has continued with varying severity. Meld, that though the maintenance of defendant’s road was a continuing trespass, as the evidence and pleadings showed that the injuries were inflicted prior to 1881, and that all that occurred subsequent to that time were but the natural results of the prior injuries, an action commenced after six years from that time was barred by the statute of limitation.</p>

<p>1. Wills—Legacy to Creditor—Debt Barred by Statute.</p> <p>Testatrix, by her will, directed, her executor to convert the estate into money, and, after payment of funeral expenses, to pay “the sum of two thousand pounds which I owe to [plaintiff] for moneys he has advanced to me, with such interest after the rate of five pounds per cent, per annum as shall be then due thereon, and all other my just debts. ” Held, that it was no defense to an action to enforce the payment of the legacy that plaintiff’s debt was barred by the statute of limitations, as the direction to pay it recognized the debt, and ordered it paid regardless of the statute.</p> <p>2. Same—Interest.</p> <p>It was proper, it not appearing when the debt was created, to allow interest at 5 per cent, on the £2,000 from the date of the will until one year after testatrix’s death, the time when by law the legacy should have been paid, as testatrix, by her direction to pay such interest “as shall then be due, ” clearly referred to the interest due on the debt at the time the legacy was payable.</p> <p>8. Same—Right to Jury Trial.</p> <p>In an action by the legatee for the amount due, and for an order directing the conversion of the estate into money by sale under direction of court, and payment of the legacy out of the proceeds, the defendant is not entitled to a jury trial, though he denies that testatrix owed the legatee the £2,000.</p>

<p>1. Mortgages—Release—Conveyance to Mortgagee.</p> <p>Where a mortgagor conveys part of the mortgaged property subject to the mortgage to a third person, who conveys it to the mortgagee without the mortgagor’s consent, the portion conveyed is not released from its share of the mortgage.</p> <p>2. Same—Payments—Application.</p> <p>Where a mortgagor’s tenants, with his consent, pay their rent to the mortgagee, who holds several mortgages on the same ■ property, the mortgagee has no right, after suit for foreclosure has been begun, to apply these payments to the junior mortgage.</p>

Action by Louis Mathot against the North River Bank. John Sharp and others procured an attachment in this court against the property of Henry A. Gentil for $372.92, and caused a copy thereof, with the proper notice, to be served on the defendant March 23, 1889.

Assumpsit by Samuel Adams and James Mclvor against Jacob Herrick Henry for goods sold and delivered. The complaint alleged that plaintiffs and Charlotte Adams'and Thomas Allen were copartners as Adams, Mclvor & Allen, and sold goods to defendant. This Arm made an assignment for the benefit of creditors to one William B. Roe.

Action by John H. Dresler against George M. Hard and James H. Blauvelt, as partners. Judgment for plaintiff. Motion for new trial refused, and appeal by defendant Hard.'

Action by Helen Julia Oszkoscil, an infant, by Jacob E. D. Solis, her guardian ad litem, against the Eagle Pencil Company, to recover for injuries received by plaintiff while in defendant’s employ. After plaintiff had introduced her testimony the suit was dismissed, on defendant’s motion. Plaintiff appeals.

<p>1. Estoppel—In Pais—Assignment op Contract.</p> <p>Defendants’ testator contracted to build a ship for a navigation company, which before receiving the ship assigned its rights to plaintiff. There being some difficulty in adjusting the rights between plaintiff and the navigation company, it was arranged, with the knowledge of all, that plaintiff should pay the balance of the price of the ship to testator, and the latter should deliver to a third person two bills of sale, one running to plaintiff and one to the navigation company, and should receive a receipt conditioned that one of the bills should be delivered to the one entitled to the ship, and the other be returned to plaintiff. It was also conditioned that a bill of sale would not be delivered to plaintiff unless the navigation company acquitted testator “for the full performance by them of the contract * * * for the building of said ship. ” Held, that plaintiff, having accepted a bill of sale, was estopped to deny that testator had complied with the requirements of the contract of building.</p> <p>2. Contracts—Construction—Receipt.</p> <p>The receipt.was of the nature of a contract, and cannot be construed to refer, in the provision as to performance of the contract, to delivery of the ship merely, and not to details of construction.</p> <p>3. Sale—Warranty—Right oe Action.</p> <p>A false statement by testator’s agent, that the vessel conformed to the requirements in certain respects, does not create as to plaintiffs, who were mere assignees, an actionable warranty surviving the delivery of the vessel, though it might give a right of action for false representations.</p>

Action by AnnLooram, as administratrix of Bernard Looram, deceased, against the Third-Avenue Bailroad Company, for the death of plaintiff’s intestate. Dr. McCreery, who attended intestate from the time of his injury to his death, testified that acute peritonitis was the immediate cause of death.

Action by Frederick P. Forster, as executor, against John E. Devlin, as executor, to recover attorney’s fee of $2,542.70. Judgment for part of plaintiff’s claim, and an order of severance as to balance. From this judgment and order defendant appealed.

Action by the American Steam-Boiler Insurance Company against Edward C. Anderson and George S. Stanton for dam-ges for procuring the cancellation of policies of insurance. Verdict for plaintiff. From the judgment entered thereon both parties appeal.

e Action by Joseph Atkinson and others against Titus B. Truesdell, for damages for breach of contract. Verdict for plaintiffs. From the judgment entered thereon, and an order denying a motion for a new trial, defendant appeals.

In a case in which Milan G-. Clapp was plaintiff, and John C. Atterbury was defendant, a motion was made by defendant to vacate an, order of the ■court. This motion was denied, and from the order denying it defendant appealed.

Action by William Brooks against Susan A. Ludin, for damages on account ofpersonal injuries. Thequestion of the extent of injuries received and damages sustained being left to a jury, and the verdict being deemed by the plaintiff insufficient in amount of award, he moved for a new trial. The motion being denied, plaintiff appealed.

Action by Daniel E. Appleton against James S. Speer and Peter K Ramsey upon a promissory note. The complaint alleged that Speer, on June 1, 1888, made his note for $2,500 to the order of Ramsey, who indorsed it to plaintiff; and also alleged, upon information and belief, that on December 4, 1888, it was duly presented for payment, which was refused, and it was thereupon duly protested.

The plaintiff, Aaron B. Cohu, gave notice of an appeal to the defendant, Joseph Husson. This notice defendant refused to accept, on the ground that further proceedings on the part of plaintiff were stayed for failure to pay certain costs which he had been ordered to pay. Thereupon the court made an order compelling defendant to accept the notice, and from this order defendant appealed. For report of former appeal, see 5 N. Y. Supp. 7.

On December 3, 1878, Peter Herder recovered a judgment against George B. Collyer and Dwight C. Crocker in a First judicial district court of New York city, and a transcript of that judgment was on the same day died in the office of the clerk of the city and county of New York. Nicholas Herder, the judgment plaintiff’s assignee, now moves for leave to issue an execution on the judgment against the property of defendants.

<p>Injunction—To Stay Execution on Void Judgment.</p> <p>A judgment of a New York city district court was dated and was entered by the clerk as of August 24th, which was within the statutory eight days after final submission, but in fact the judgment was not filed with the clerk until August 27th, which was too late. The defendant therein had no actual notice of the facts until September 15th, at which time the plaintiff issued execution. It was then too late to appeal from the judgment, if the true date thereof was August 24th. Held, that the defendant was entitled to have the execution enjoined.</p>

Action by John Herrman and Julius Herrman against Theodore Stalp. Plaintiffs appeal from an order denying leave to issue an execution. Code. •Civil Proc. 1ST. Y. § 1377, provides that, after five years from entry of judgment, execution cannot be issued thereon without an order of court, unless an execution has been issued within said five years, and returned unsatisfied, wholly or in part.

On the 17th of September, 1880, James Baird was engaged, under a contract with the city of New York, in laying large water-mains or pipes in Eighty-Fifth street. For such purpose a cut had been excavated about nine feet deep and seven feet wide. Dominick Doyle was one of Baird’s employes, and on said day he was ordered by Baird’s foreman to go to the bottom of said cut, and prepare the bed-place for one of the mains then about to be lowered.

Action by John D. Ottiwell against Jane B. Muxlow, Herbert H. Muxlow, James O. Watkins, Peter A. H. Jackson, Jenkin Jones, and Lawrence A. Thole, to foreclose a mechanic’s lien upon the “Coliseum Rink,” a building standing on land belonging to defendant Jackson, but which he had leased to defendant Jane B. Muxlow, and which she had sublet to defendant Watkins. The court decreed a lien against Watkins and Jane B. Muxlow. Mrs. Muxlow alone appeals. Laws 27.

<p>Bill of Particulars—Action for Firm Debt.</p> <p>A defendant sued for a firm debt may demand a bill of particulars, though he denies both his connection with the firm and its liability to plaintiS.</p>

<p>Appeal—Review—Weight op Evidence.</p> <p>Where a workman is killed by a rook falling from the roof of a chamber in a mine, and in an action against the mine owner therefor the evidence is conflicting as to whether the roof was properly supported, and whether the deceased knew of its condition, a verdict for plaintiff will not be disturbed on appeal.</p>

Action by Carlos 0. Buck against the Manhattan Bailtvay Company. Defendant appeals from a judgment entered on a verdict for plaintiff and from an order denying a motion for a new trial. For opinion on former appeal, see 2 Ü5T. T. Supp. 718.

<p>Appeal from trial term.</p> <p>Action by Edith Kane against the Metropolitan Elevated Railway Company And the New York Elevated Railroad Company. Judgment for plaintiff. Defendants appeal.</p>

Action by Mary A. Sweeney, as administratrix of John Hanlon, deceased, against the New York Steam Company, for injuries causing the death of said Hanlon. Judgment for plaintiff. Defendant appeals.

<p>Demurrage—Allowance .</p> <p>Where the hirer of a vessel, which can be loaded in five hours, does not load her until 10 days after the vessel is placed at his service, and seven days after the time allowed him by the owner, ho is liable, even without any express contract, for damages in the nature of demurrage.</p>

<p>Appeal from trial term.</p> <p>Action by Anastasia Brady against the Manhattan Bailway Company for personal injuries. The evidence showed that, in addition to the fracture of her leg, plaintiff had received internal injuries, permanently affecting her general health. Judgment for plaintiff. Defendant appeals.</p>

Action by Frederick G-. Benner against John Meyer. Plaintiff, having recovered a judgment, instituted supplemental proceedings. Defendant now moves to compel plaintiff to file the examination.

In a suit by E. J. Wessels against A. Carr, defendant was in default twice. Judgments for the plaintiff were entered on inquest in each case. The defaults were set aside on terms. After trial on recovery of judgment for the plaintiff a trial fee of $30 was taxed for each inquest. Defendant moved for a retaxation as to the items for proceedings after setting aside the inquest, and the trial fees for the inquest.

Action by Thomas C. Walker against the Second Avenue Railroad Company to recover damages for personal injuries to his child. The verdict was for plaintiff, on which defendant moved for a new trial, which motion being denied he appealed therefrom, and also from the judgment entered on tile verdict.

Action by the Columbia Bank against the Gospel Tabernacle Church upon a promissory note. From a judgment entered on report of referee, plaintiff appeals.

Action by the Union Distilling Company against the Union Pharmaceutical Company on a bill of exchange. An attachment was obtained by plaintiff on the ground that defendant was about to remove its property from the state with the intention of defrauding its creditors. George P. Bowell, Charles isf.

<p>Usury—Equitable Remedies.</p> <p>The right of the transferee of property pledged as security for a usurious note to bring an action to have the note canceled and the security returned, is expressly given by Code Civil Proc. N. Y. § 1911, and it is error to dismiss an action brought for that purpose on the ground that there is an adequate remedy at law.</p>

Action by Mary V. Amerman against Bertha A. Deane for an injunction, damages, and other relief. Judgment for plaintiff, and defendant appeals.

Action by Thomas Murphy against Ruel Philbrook and others, to enforce a debt against said Philbrook’s estate. A demurrer to defendant Philbrook’s answer was overruled, and plaintiff appeals. The opinion states the facts.

<p>Appeal from special term.</p> <p>The people, on the relation of Clason, applied for a writ of mandamus against the clerk of arrears, etc., of the city of New York. From an order denying the writ, the relator appeals.</p>

<p>1. Pleading—Answer—Specific Denials.</p> <p>It is bad pleading to deny portions of the complaint merely by reference to the first and last words of such portions, and to the folios where they are to be found.</p> <p>2. Same—Reply—When Necessary.</p> <p>In an action for damages for an inj ury alleged to have been continuous for a stated period, pleas of former recovery and another action pending, stating the specific periods to which they apply, and which do not cover the entire period embraced in plaintiff’s cause of action as alleged, do not require a reply.</p> <p>3. Same—Reply to Technical Counter-Claim.</p> <p>Where matter is pleaded, not as a counter-claim, but by way of confession and avoidance, plaintiff may, under Code Civil Proc. N. Y. § 522, give evidence in avoidance thereof, without further pleading, and hence no reply is required, though such new matter is technically a counter-claim.</p> <p>4. Same—Reply to Plea op Statute op Limitations.</p> <p>Where the facts alleged in the complaint show that the statutory period has elapsed since the cause of action accrued as to a portion of the damages sued for, but facts are alleged showing an avoidance of the statute, an answer pleading the statute does not furnish ground for ordering a reply.</p> <p>5. Same—Unauthorized Reply—Demurrer.</p> <p>Where no reply is required as matter of law, it is, under Code Civil Proc. N. Y. § 516, authorized only by order of court; and where, in such case, a reply has been served without an order of court, its sufficiency will not be inquired into on demurrer.</p>

<p>Appeal from trial term.</p> <p>Action by John I. Hadcock against William F. O’Rourke, upon a promissory note. Verdict for plaintiff. From a judgment entered thereon defendant appeals.</p>

<p>Exceptions from trial term.</p> <p>Henry Bella and others sued the Yew York, Lackawanna & Western Railway Company. Judgment was entered for plaintiff.</p>

<p>1. Contract—Construction—Evidence.</p> <p>Plaintiff and defendant agreed to terminate a lease, and defendant agreed to pay plaintiff a balance of rent then due. Subsequently they both signed an agreement terminating the lease, which contained the words, “ without claims, rents, or demands of any kind or amount of either party against the other. ” Held, that the “claims, rents, and demands” intended are those growing out of the termination of the lease, and not the rent due plaintiff from defendant prior to its termination, and which he had agreed to pay. »</p> <p>2. Pleadins—Amendment—Municipal Court.</p> <p>There was no error in allowing plaintiff to amend his complaint in the municipal court of Buffalo after the trial had begun; Code Civil Proe. N. Y. § 2944, relating to pleading in justice’s court, providing for amendment either before or during trial, or on appeal, when substantial justice will be promoted thereby.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Jared H. Tilden against Silas F. Washburn and Elliott E. Buck, on seven promissory notes. Defendant Washburn alone appeared and answered. There was a judgment for defendants, and plaintiif appeals.</p>

Action by Thomas McCarthy against the Hew York Central & Hudson River Railroad Company, for personal injuries caused by defendant’s negligence. Defendant appeals from an order denying a motion to strike out portions of the complaint, and to make it more definite and certain.

<p>1. Judgment—Effect—Res Judicata.</p> <p>A judgment in an action by an employé for a wrongful discharge, where plaintiff’s compensation was in part a salary and in part commissions, is a bar to a subsequent action for the commissions which plaintiff would have earned but for the discharge, though on the former trial the court excluded evidence as to the commissions, on the ground that the pleadings did not justify it, and refused to allow an amendment, assigning as a ground that another action could be brought for the commissions.</p> <p>2. Same—Sep abate Causes of Action.</p> <p>The former recovery will not bar an action for commissions earned at the time of the discharge.</p>

<p>1. Wills—Contest—Jury Trial—Costs.</p> <p>Where a verdict for contestants on a jury trial in probate proceedings is affirmed on appeal, and the order of the appellate court denies proponent costs in that court, he is entitled under Code Civil Proc. ÍT. Y. § 2547, as amended by Laws N. Y. 1886,</p> <p>p. 199, which provides that the costs of a jury trial in New York county, when ordered, shall be taxed in the surrogate’s court, and awarded in the same manner as if the proceedings had been heard by the surrogate, to the costs of the trial before the jury and of the motion on a new trial.</p> <p>2. Same—Attorney’s Fees.</p> <p>Where the hulk of testimony including that of the subscribing witnesses to a will, was taken without the state upon an open commission, after the denial of a commission upon interrogatories, proponent is entitled to a per diem allowance for the counsel fee charged on the taking of such testimony, to be fixed by affidavit, but not to costs incurred in prosecuting his appeal nor to stenographer’s fees for the minutes of the trial if ordered to prepare the case upon appeal.</p> <p>3. Same—Special Guardian.</p> <p>Where a special guardian filed no objections in the application for costs, and makes claims for attendance on the appeal, but it does not appear that he was ever appointed to conduct the appeal, and no direction is given by the appellate court as to his compensation, the surrogate has no power to provide therefor, but will allow for service rendered by such guardian before the appeal was taken.</p>

<p>On motion by plaintiff upon the minutes for a new trial.</p>

Motion to set aside order. James F. Joy and others sued A. M. White and Henry M. Warden, and F. G. and Gf. G. Griswold, as executors, etc., of George Griswold.

<p>Action by the Importers’ & Traders’ Bank and others against Feuchtwanger and others, to recover money received by defendants by means of a preference given them in lin assignment for the benefit of creditors, made by judgment debtors of plaintiffs, and which assignment was judicially declared void. It was alleged that the assignment was executed September 24, 1883, and that defendants, being preferred creditors, were paid certain sums under such preference. In June, 1885, a decree was rendered setting aside</p> <p>the assignment for fraud; the actions in which such decree and other similar decrees at the instance of other creditors were rendered having been begun before defendants were paid the sums mentioned. Defendants were aware of the pendency of the actions when they received such sums, and also knew that the assignment was fraudulent. The complaint prayed that the defendants be required to pay over the money received by them to a receiver, and for other relief. Defendants moved to make the complaint more definite and certain by stating the dates at which plaintiffs’ executions on their judgments were returned unsatisfied, by showing in what year or years the alleged payments to defendants were made, by alleging the date of plaintiffs’ action to set aside the assignment. They moved also to strike out the allegations concerning the institution of actions by other creditors to set aside the assignment, or to make the allegation more definite and certain by stating what actions were referred to, and the date thereof. Similar motions were made ■as to the allegations that defendants knew, when they received the payments mentioned, of the pendency of the actions, and that defendants knew of the fraudulent character of the assignment. The motion asked that the facts upon which such allegation was based might be set out definitely.</p>

<p>Practice in Civil Cases—Examination of Party before Trial—Trustees.</p> <p>A cestui que trust may have an examination of his trustees before trial in an action for an accounting and to recover an amount alleged to be due him under the trust.</p>

On motion to strike cause from the calendar, and postpone the trial until proper parties are brought into the action. Action by a beneficiary under a will against the executors to obtain an accounting. After an interlocutory judgment had been issued directing the accounting a rehearing was granted, involving some matters covered by the in- terlocntory judgment.

<p>At chambers. Motion for a further bill of particulars.</p>

<p>1. Wills—Repugnant Clauses—Testamentary Powers.</p> <p>A testator in one clause of his will authorized his executors to sell a specified portion of his lands, and expressed his desire that it should be sold in a body, for</p> <p>commercial purposes. In a subsequent clause he directed his executors to sell this and other specified portions, for the purpose of discharging his debts. Held, that the subsequent clause did not so conflict with the former as to deprive the executors of the power to sell the specified portion, though it was not necessary for the purpose of discharging the testator’s debts.</p> <p>3. Same.</p> <p>The expression in the former clause, that the land should he conveyed for commercial purposes, is not a limitation upon the power of the executors to convey, nor upon the use to which the land should be put.</p>

<p>Reference—Death of Referee—Powers of Successor.</p> <p>A referee appointed in the place of a deceased referee, whose duty to hear and report is partly performed, may state on information and belief what was done by his predecessor, and thus avoid the necessity of a new proceeding; and at the same time comply with Code Civil Proc. If. Y. § 1022, which provides that the report of the referee on the trial of the whole issue of fact must state separately the facts found and the conclusions of law.</p>

At chambers. On motion for change of venue. Action by the Lamson Consolidated Store-Service Company against Gilbert VV. Speir, Jr., receiver, and John H. Hart, sheriff of Albany county, to determine the control of property levied on by the latter to satisfy a judgment against the United States Store-Service Company.

At chambers. Motion to continue injunction pendente lite. An action by Lippman Tannenbaum and 12 others against C. Rosswog & Co., Magdalena B. Rosswog, and James A. Black, sheriff of Hew York county. At the commencement of the action plaintiffs, as the attaching creditors of 0.

Action by Volney White against Lafayette Knowles. Judgment was entered on a verdict for plaintiff for the sum of $46.45, and a motion for a new trial was denied. Defendant appeals.

Action by Nicholas C. Newerf and another against Thomas A. Jebb and another. Plaintiffs appeal from a judgment dismissing the complaint, and also from an order denying their application to amend the complaint to conform to the proof. The action was based upon a written agreement made June 9, 1881, between George Humphreys and defendant Jebb.

<p>Reference—Exceptions to Report—Time of Filing.</p> <p>The court has power, under Code Civil Proc. N. Y. §§ 784,783, to permit the serving of exceptions to a referee’s report after the time allowed therefor by statute has expired.</p>

<p>Gift—Inteb Vivos—Deposit in Bank.</p> <p>A father who deposits his own money in a savings hank to the credit of his infant son, and leaves it there until his death, retaining possession of the pass-book, thereby makes an executed gift of the money to his son.</p>

Action for divorce by John W. Matthews against Zoe L. Matthews. Judgment, for plaintiff. Defendant appeals. Code Civil Proc. IT. Y. § 1229, pro- vides that, where a reference is made in a divorce suit, judgment cannot be taken as of course on the referee’s report, but must be rendered by the court.

Petition for mandamus on the relation of Robert P. Aníbal and Michael D. Murray against the board of supervisors of Fulton county. Defendants appeal.

<p>Appeal from circuit court, Rensselaer county.</p>

<p>1. Pleading—Demurrer—Facts Admitted.</p> <p>Since a demurrer admits every fact well pleaded, a complaint, based partly on an oral contract of which proof could not be made under the rules of evidence, is not demurrable therefor.</p> <p>2. Contract—Action to Recover Consideration.</p> <p>The fact that an action for breach of contract is decided in favor of defendant, on the ground that the contract cannot be performed, is no defense to an action to recover the consideration paid for the contract.</p> <p>8. Mistake of Fact—Laws of Foreign State.</p> <p>Money paid under a mutual mistake as to the law of a foreign state may be recovered back, such mistake being one of fact.</p>

Action for damages for the alleged negligent killing of plaintiff’s husband while in defendant’s employ, brought by Bridget Nichols against the defendant corporation. The circumstances under which the death of plaintiff’s decedent occurred are sufficiently stated in the opinion.

These actions were brought by the Crown Point Iron Company upon policies of fire insurance issued to the plaintiff, by the respective defendants. The defense was that the policies had been surrendered and canceled. The evidence showed that about July 25, 1886, Inman, the general manager, and Reed, the assistant general manager, of plaintiff examined the company’s property, and decided to reduce the insurance.

Action by George Hotis against the Hew York Central & Hudson River Railroad Company, for personal injuries received by plaintiff while a brakeman in defendant’s yard at Green Island. While plaintiff, in the exercise of his duties, was standing on the roof of a freight-car, which had just come into the yard from Schenectady, he fell to the ground and was injured.

Petition of Cornelius Swart and Arthur Y. H. Smyth for a final settlement of their accounts as executors of Lydia Casey, deceased. John Ó. Becker, a judgment creditor, appeared and objected to the account. The surrogate disallowed a number of items in the account, and ordered that, out of the balance remaining in the hands of the executors, Becker’s judgment should be paid before the legacies. The estate was not large enough to pay all the legacies in full.

<p>Appeal from Greene county court.</p> <p>Action by Winifeld S. Rundell against Alexander N. Bentley for necessaries furnished by plaintiff to Mrs. Maria S. George. Judgment for plaintiff. Defendant appeals.</p>

Indictment of Patrick H. Burns for selling impure milk. The court sustained a demurrer to the indictment, and the people appeal.

<p>Appeal from judgment on report of referee.</p> <p>Ejectment by. John Sanford and Belinda Sanford against Francis McDonald and William Cox for a strip of land in the city of Troy. Judgment for plaintiffs. Defendants appeal.</p>

<p>Appeal from circuit court, Franklin county.</p> <p>Action by Augusta A. Currier against the Ogdensburgh & Lake Champlain Railroad Company. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Saratoga county court.</p> <p>Action by James Cook against the village of Waterford. Defendant appeals from an order denying leave to amend its answer.</p>

<p>1. Landlord and Tenant—Lease—Holding Over.</p> <p>A tenant who occupies the demised premises for several years after the termination of his lease, paying rent semi-annually, creates each year a new term expiring at the close of the current year, and requiring no notice for its determination.</p> <p>2. Same—Abandonment.</p> <p>When the tenant vacates the premises, and tenders the key to the landlord’s agent, three months after the beginning of a year, he is not liable for rent after the expiration of the current year.</p>

<p>Master and Servant—When Relation Exists.</p> <p>A passenger in a carriage, driven by a servant of the carrier, and who requests the driver to pass a vehicle in front of them upon being assured by the driver that it can be done, is not responsible for an accident caused thereby.</p>

<p>Appeal from circuit court, Schenectady county.</p> <p>Action by Sarah E. Phillips against the New York Central & Hudson River Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals.</p>

Action by Robert A. Cheseborough against Charles H. Kimberly, for an injunction restraining the conducting of a warehouse business so as to create a nuisance, and for damages therefor. Defendant moved for a bill of particulars of Ills claim. From an order granting the motion defendant appeals.

The petitioner, John Cullen, applied for an order to vacate a certain assessment for street improvement, on the ground that it was made without authority of law, and that there were certain frauds and substantial errors in. the proceedings. The court refused to vacate the assessment, but made an order for its reduction. From this order both the petitioner and the city appeal.

Proceedings before the surrogate upon the accounting of the executors of the will of Paran Stevens, deceased, were pending, whereupon said executors moved a stay thereof until the determination of an action involving the same questions in the supreme court. The stay was denied and a decree on the merits rendered. The executors and testamentary trustees also moved for the insertion of certain reservations in the decree, and this was also denied.

For appeal from an order denying a stay of proceedings, and for statement of facts, see ante, 635. This opinion was filed on consideration of the merits of the controversy on the appeal from the decree of the surrogate.

Henry Clews and others sued Cornelius Reilly to recover for certain screenings sold. Judgment for defendant, and plaintiffs appeal.

Action by Martin Biiing against the Broadway & Seventh Avenue Bailway Company for personal injuries. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

<p>Equity—Laches—Acquiescence.</p> <p>On a petition to set aside a mortgage sale it appeared that the sale was made two years before the filing of the petition; that immediately after the sale petitioner sued to have the purchase declared in trust for certain purposes, but the suit lay dormant until the petition was filed. Held, that defendant, after so long acquiescence, cannot be heard to ask to have the sale set aside.</p>

Action for divorce a mensa, et thora on the ground of abandonment, brought by Mary Williams against Cornelius Williams. Defendant is a physician, residing, at the commencement of this action, in the city of St. Paul, Minn., and engaged in the practice of his profession there. From a judgment of separation and awarding alimony, costs, and counsel fee defendant appeals.

This is an appeal from a judgment entered upon the report of the Honorable Noah Davis, referee, appointed by the court at special term to hear and determine the issues. The action relates to two lots of land in the city of Hew York, for which the defendant obtained a quitclaim deed from one Messinger in 1881, and under which he claims title to the premises.

Trial before a referee. Action by John Hunt Adams against Robert R. Symon, to recover damages for the failure of Symon to pay a mortgage on land conveyed to him by Adams, and which Symon had assumed to pay as part of the consideration for the conveyance. On the foreclosure of the mortgage a personal judgment had been rendered against Adams for the deficiency, and the sale of the premises resulted in a deficiency of $61,605.23.

<p>Appeal from Eleventh district court.</p> <p>Action by the mayor, etc., of the city of Yew York, against Walter Wood and another, for a violation of an ordinance relating to signs. Judgment for defendants, and plaintiff appeals. Code Civil Proc. H. Y. § 1897, provides that, jn action to recover a penalty given by statute, if a copy of the complaint be not served with the summons, a general reference to the statute in the form, “according to the provisions of,” must be indorsed on the copy of the summons so delivered, adding such a description of the statute as will conveniently identify it, etc.</p>

<p>Appeal from Second district court.</p>

<p>J. Landlord and Tenant—Summary Proceedings—Pleading—Counter-Claim.</p> <p>In summary proceedings by a landlord under Code Civil Proo. N. Y. § 2231, subd. 2, which provides that, where a tenant holds over, after default in payment of rent according to agreement, and demand of rent made, or three days’ notice in writing requiring payment of rent or possession of the premises, he may be summarily ejected, neither a counter-claim, nor the failure of the landlord to repair, etc., as covenanted, can be pleaded; and a general denial is the proper plea, under which the lessee could claim the benefit of a clause in the lease providing for an apportionment of rent for what time he might be deprived of the use and enjoyment of the demised premises owing to repairs made by the lessor.</p> <p>3. Same—Defenses—Amount of Demand.</p> <p>It is no defense to a summary proceeding by a landlord that the full amount of the stipulated rent was not payable, and the proceeding will not fail because the landlord demands more than is due.</p>

Action by Marion Huson against Clara M. Egan to recover the amount due for making a dress. The defenses were that the dress was not well made, that certain defects in it were incapable of amendment, and that it was not of the material agreed on. Verdict for plaintiff, and defendant appeals.

<p>Appeal from First district court.</p>

Action by P. Mahan against Fíathaniel P. Sewell to recover the possession of land demised by plaintiff to defendant. The lease contained a covenant for the payment of rent, and a condition avoiding the lease in case of the breach of any of the covenants. There was judgment for plaintiff, and defendant appeals. ,

<p>Building Contracts—Alteration—Quantum Meruit.</p> <p>Plaintiff made a contract with defendant to build for her certain houses, according to prescribed plans and specifications. During the construction a number of deviations were made from the original plan, with the consent of both parties, but all conditions in the original contract as to times and amounts of payments, as the work progressed, were strictly complied with, and the money received and receipted for by the contractor without objection. No new express contract was en-</p> <p>tered into. Held, that the deviation from the original contract was not such as justified the contractor in setting up a claim of quantum meruit, except as to extra work done and extra materials furnished.</p>

<p>Wills—’Testamentary Capacity—Evidence.</p> <p>In 1884 decedent made a will, signed by herself, by which contestant was given a legacy. In 1887 she gave instructions to an attorney to draw another, which excluded him from any benefaction; but she refused to sign it, and it was lost. In 1889 another will was drawn on the basis of the will of 1884, and modified according to instructions given in 1887, and in which no provision was made for contestant. On the day on which decedent executed this last will the attorney testified that she was very sick with a heavy cough; that he read and explained the will to her; that he wrote her name thereto, she making her mark by holding the pen; that he andanotherwitness suggested by her signed as attesting witnesses. The testimony failed to show what conversation took place with decedent about the will, or that she declared the paper to be her will, or that she requested the attesting witnesses to sign it as such, or that she was questioned thereto. The attending physician testified that he saw decedent the same day, shortly after the execution of the will; that she did not recognize him; that she spoke to no one unless aroused, and showed no interest in anything around her, and was physically weak. Other</p> <p>witnesses stated that on the same day she was in a dazed, stupefied condition, and apparently asleep or unconscious, and that during that day her mind was wandering. She died four days after the will was executed. Held, that decedent did not have testamentary capacity.</p>

<p>Legacy Tax—Exemptions—Charities.</p> <p>Under the law taxing-collateral inheritances, a charitable or religions corpora^ tian is subject to taxation on a legacy unless exemption can be shown by the provisions of its charter, or by special legislative enactment.</p>

Indictment against Thomas B. Kerr for the bribery of one Fullgraff, an alderman of New York city. For other cases involving the same bribery, see People v. Sharp, 14 3ST. E. Rep. 319; People v. McQuade, 18 N. B. Rep. 156.

Action for damages, brought by Nathaniel Jarvis, Jr., against the Manhattan Beach Company. The facts are stated in the opinion. At the trial, plaintiff having rested, defendant moved to dismiss the complaint on the ground that plaintiff had not made out a cause of action, which motion was granted.

Motions for judgment on verdict, subject to the opinion of the general term. ¡Replevin by John H. Stallman and others against Agnes L. Kimberley and others. The agreed statement of facts showed that the defendants, who were warehousemen, refused to deliver certain articles stored until the charges for storage, cartage, and expenses of receiving and delivering other articles, which had already been delivered, were paid.

On motion for allowance of costs to defendant. The facts are stated in the opinion.

<p>Action by judgment creditor to have a conveyance declared fraudulent and void. On motion for judgment.</p>

On certiorari. The relators were trustees of a religious corporation which owned a lot or tract of land in the village of Phoenix, on one portion of . which was situated a church, or building used solely for public worship, while on another portion of the same lot was a parsonage, or building used solely as a residence for the pastor.

<p>Execution—Against the Person—Nature op Action.</p> <p>A complaint which sets forth a contract for the sale of copper, to be paid for as deliveries were made; that the copper should belong to plaintiff until all was paid for; and that, after delivery, defendant, without title, wrongfully converted it to his own use; and that “by said agreement the said copper continued to belong to plaintiff until the same should be paid for by defendant, ”—shows, when taken as a whole, an action in tort, and execution against the person of defendant may lawfully issue on a judgment recovered thereon.</p>

Action by the Boston national Bank against Paul J. Armour and Charles W. Armour. A demurrer to the complaint was overruled, the following opinion being delivered May 7, 1888: “Ingraham, J. The action is brought to recover the amount paid by the plaintiff for two notes made by the Bushwick Chemical Works, adomestic corporation, payable to the order of Martin Kalbfieisch’s Sons, and indorsed by them in blank.

In the matter of the petition of Edward B. Underhill and others for the draining of certain swamp lands in Yorktown, Westchester county. Silas S. Whitney, a land-owner affected by the proceedings, appealed to the county court from the acts and determinations of the commissioners, and from the decision of the county court sustaining the validity of the proceedings Whitney appeals to this court.

Action by Sarah Hill against the board of supervisors of Rensselaer county, under chapter 428, Laws 1855, entitled “An act to provide for compensating parties whose property may be destroyed in consequence of mobs or riots.” The complaint avers that on the 19th day of July, 1886, the plaintiff was keeping the “Grove Hotel,” in the village of Lansingburgh, and on that day “a mob or riot of men” struck and intimidated her servants in charge, and thereupon destroyed a large…

<p>Tax-Sales—Cancellation—Notice.</p> <p>One who has a complete title to land, claiming under a tax-deed, by virtue ol Laws N. Y. 1855, c. 487, § 65, providing that such deed shall be presumptive evidence of the regularity of the sale and all prior proceedings, is not affected by an order canceling the tax-sale, where the order was procured without notice to him, though the statute authorizing the cancellation does not require such notice.</p>

Proceedings to inquire into the alleged lunacy of Clarissa Cook. Elizabeth Crouse, one of the children of the said Clarissa, appeals from an order confirming the inquisition of the jury, and appointing Jacob C. Cook, a son of said Clarissa, committee of her person and estate; and also from an order denying appellant’s motion to set aside the order appointing the committee.

Action by E. Willard Boies to foreclose a mortgage. The plaintiff and the- • defendant Sarah Benliam eacli held a mortgage given by the defendant Gardner on the 11th of March, 1884, upon premises which the plaintiff on the same-day conveyed to Gardner. The price of the premises was $1,800, $100 of which Gardner had paid to the plaintiff.

Action by John Broezel, Jr., and others against the city of Buffalo, to vacate and set aside as a cloud upon plaintiff's title certain special assessments levied on their land for the purpose of extending Ellicott street. Judgment for defendant. Plaintiffs appeal.

Defendant, Franklin V. Brower, appeals from a judgment of conviction under an indictment for manslaughter in the first degree. The indictment was under Pen. Code, § 191, and charged defendant with aiding and assisting one Mary A. Brower in performing, by means of an instrument, an operation upon her person with intent to produce a miscarriage, from the effect of which she died; such operation not being necessary to preserve her life.

Also in “carrying forward” upon the comptroller’s books, to be made the basis for future sale, a portion of the taxes as to which the sale was made and canceled. The facts are as follows: George Clark, a resident of the county of Otsego, was the owner of several parcels of land in the town and village of Catsltill, Greene county.

Action for damages for trespass, brought by John G-. Farnsworth, as receiver of the Bankers’ & Merchants’ Telegraph Company, against the Western Union Telegraph Company. Plaintiff had judgment on a verdict for $240,-000, and defendant appeals.

Motion to confirm report of commissioners of estimate. Under special act of the legislature of Mew York, the supreme court appointed “commissioners of estimate and assessment” to make awards to owners of lands which were taken for a public park, and to report their proceedings for confirmation. On a motion to confirm the report, the objections of property owners are considered as of appeal from the action of the commissioners.

The defendant, Stanley Morehouse, was tried for an assault on James Welch, who, under Code Crim. Proc. N. Y. §§ 183,184, authorizing a private person to arrest another for a crime committed or attempted in his presence, attempted to arrest defendant for pointing a gun at and threatening to shoot one Edward Decker if he did not stop. When Welch attempted to arrest defendant he pointed the gun at Welch, and threatened to shoot him if he came any further.

<p>1. Wills—Legacies—Period of Vesting.</p> <p>Testator, after giving the use of his personalty and realty to his wife for life, gave two pecuniary legacies, and devised all of his real and personal estate, except the legacies, to certain of his children and grandchildren, naming them, to be divided equally between them, share and share alike. “Such devises and bequests are to take effect, and such division of my estate is to be had, after the decease of my said wife. ” He also authorized his executors, after the death of his wife, to sell his real estate, and divide the proceeds as above directed. Held, that the interests of all the legatees and devisees vested at the death of the testator, subject to the life-estate in the widow, and the power of sale in the executor, and none of them lapsed by the death of the legatee or devisee during the life of the widow.</p> <p>2. Same—Charges on Real Estate.</p> <p>The facts that the testator left very little personalty, and must have understood that it was liable to be consumed in the payment of debts and funeral expenses, and in the use thereof by his wife, require the pecuniary legacies to be charged on the land.</p>

Frederick Lasher, of Middletown, Delaware county, IT. Y., died intestate October 29, 1884, leaving his widow, Anna M. Lasher, the plaintiffs and defendant herein, Janet Gill and others, his children and only heirs at law and next of kin. On the 16th of January said Anna M. Lasher was duly appointed administratrix of the estate of said decedent.

Case submitted on agreed statement. Action by Franklin A. Eowe and another, as executors, against Hannah M. Lansing and another, to construe a will.- The facts agreed upon are that Wendell Lansing died May 15, 1887, at his residence in Keeseville, Essex county, having previously made and published his last will and testament, whereby, after provision for debts and expenses, and for a monument not to cost more than $700, he provided as follows: “I give and devise to my wife,…

Application of the commissioners of the department of public parks, relative to acquiring title, wherever the same has not heretofore been acquired, to that part of North Third avenue from the Twenty-Third ward line to Pelham avenue, in the Twenty-Fourth ward of the city of New York, as the same has heretofore been laid out and designated as a first-class street or road by said department; From an order confirming a report awarding John B. Haskins nominal damages for certain…

Ejectment by Haney M. Kenyon and Margaret E. Hoard, as devisees of Mary Piper, deceased, against Louvina Youlan, who claimed as equitable owner under an oral agreement with said Mary Piper, deóeased, and one George Y. Piper. Judgment was rendered at circuit in favor of defendant. Plaintiffs moved for a, new trial, which was denied, and they appeal from the judgment and.order denying motion.

Action of trespass by Jacob Seholle and other, executors, etc., of Abraham Seholle, deceased, against the mayor, etc., of the city of Hew York, for damages for unlawful and forcible entry by defendant upon plaintiffs’ lands, and the destruction of the fences surrounding the same.

On exceptions from circuit court, Delaware county. Motion for a new trial on case and exceptions, ordered to be heard in the first instance at the general term. The action was brought to recover $100, the amount of a fine imposed upon the defendant by the plaintiff for creating a nuisance in the town of Kortright, and violating the plaintiff’s health regulations.

Action by Bernard H. Smith against the city of Utica, to recover $200 as his salary as park superintendent. The action was brought in the city court of said city, where the plaintiff was nonsuited. This judgment was reversed on appeal to the county court, and defendant appeals.

Action by Henry Mackey and John Banks against Julia A. Webb, a married woman, to recover for labor done and materials furnished in the improvement of her separate estate, begun before a justice of the peace. Judgment for plaintiffs, which was affirmed, and defendant again appeals.

<p>Insolvency—Preferred Claims for Labor.</p> <p>Petitioners made articles of machinery for defendant, to be paid for at a fixed price for each article. Defendant furnished the material, power, tools, etc., and petitioners hired and paid the laborers who did most of the work, subject to general rules in force in defendant’s factory. Petitioners themselves did but little work on the machinery. Held, that they were not “employés, operatives, or laborers, ” within the meaning of Laws N. Y. 1885, o. 376, giving a preference, in certain cases of insolvency, “for the payment of wages to employes, operatives, and laborers. ”</p>

<p>1. Costs—Allowance to Deeendant^-Code Civil Proc. | 3234.</p> <p>Plaintiff sold D., on credit, bills of goods on several different dates. D. made an assignment to defendant for benefit of creditors, and, after he had taken possession of the goods, plaintiff demanded their return, on the ground that the sale was fraudulent; which demand was refused, and plaintiff brought this action to recover possession, the complaint containing but a single count. The answer set up title as assignee, and prayed damages for the detention under plaintiff’s writ. By the verdict plaintiff became entitled to a portion of the goods, with damages for detention, and defendant to the remaining portion, with damages for detention. Relcl, that defendant was not entitled to costs under Code Civil Proc. N. Y. § 3234, providing that in cases “wherein the complaint sets forth separately two or more causes of action, upon which issues of fact are joined, if the plaintiff recovers upon one or more of the issues, and the defendant upon the other or others, ” each party is entitled to costs, etc.</p> <p>2. Same—Section 1728.</p> <p>Code Civil Proc. § 1728, providing for a judgment awarding relief to each party in proper cases, “where the action is brought to recover two or more chattels,”’ etc., has no bearing upon the question of costs in such cases.</p>

<p>1. Ejectment—Title to Maintain—Equities.</p> <p>In 1875 plaintiff verbally agreed to sell a tract of land to AV". in consideration of his agreement to pay half of a S400 mortgage thereon, and also to pay and have satisfied two judgments against plaintiff. W. went into possession in 1876, and he and his grantees have ever since had full possession, paid taxes, made improvements, etc. He duly paid half of the mortgage, and also paid both the judgments, but at plaintiff’s request took an assignment thereof to himself, instead of having them satisfied; but he has always been ready and willing to enter satisfaction. Plaintiff executed and acknowledged a deed to W. for the land, but never delivered it. In ejectment against the tenants of W.’s grantees, held, that while plaintiff has the bare legal title, she holds it in trust for defendants’ lessors, and cannot maintain the action.</p> <p>2. Same—Pleading—Equitable Defense.</p> <p>Defendants denied plaintiff’s ownership and right of possession, and alleged ownership in their lessors. Under this answer proof was admitted without objection to establish the equitable title, and plaintiff expressly requested the referee to find most of the facts which supported such title. Held, that a judgment for defendants would not be reversed on the ground of the insufficiency of the answer.</p> <p>8. Same—Evidence—Conclusion of Witness.</p> <p>The court required plaintiff on cross-examination to answer the question, “Was there an understanding between you and W. that he should eventually have a deed” of the land in question? Held that, inasmuch as it was apparent that the word “understanding ” was used as synonymous with “ agreement, ” and that the effect of the question was to inquire for a fact and not the mere conclusion of the witness, there was no prejudicial error in allowing it, particularly as the fact of such agreement was amply proved by other testimony.</p>

MartinS. Gray, having procured the assignment of a judgment rendered against James Seeber, in the supreme court, November 17, 1873, commenced this action to recover on said judgment March 4,1887. The defense was that .the action was barred by the statute of limitation. The case was heard by the court without a jury, and, judgment being rendered for plaintiff, defendant appeals. For concurring opinion of Hardin, F. J., see post, 917.

Action by Maria E. Woodman against Thomas D. Penfield, sheriff of Oneida county, for the conversion of goods. Judgment for plaintiff for $1,328.72, and defendant appeals.

The defendant, John B. Dunn, was indicted for grand larceny in the first degree with one Bichard S. Scott.

Actions by Martin V. B. Smith against Elizabeth J. Clarendon and Joseph Talbot, comprising the firm of Clarendon & Talbot, and James P. Clarendon, their assignee, to set aside an assignment for the benefit of creditors, on the ground of fraud, and against the same defendants and Matthew E. Clarendon and Edward C. Moore, to have a chattel mortgage adjudged void. Judgments being given for plaintiff, the defendants appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Charles G. Stevens and George F. Richardson, trustees of Marietta R. Stevens, against John L. Melcher and Charles G. Stevens, executors, and Marietta R. Stevens, executrix, of the last will and testament of Paran Stevens, deceased; MariettaR. Stevens, individually; Ellen S. Melcher, Henry Leiden Stevens, Mary F. Paget, and Arthur H. F. Paget, her husband, Arthur Leary, Henry Leiden Stevens, Alfred Henry Paget, and George Cecil Stew-Art Paget, as trustees under the marriage settlement of said Mary F. Paget and her said husband; Marietta R. Stevens, Charles G. Stevens, and John L. Melcher, as trustees of said Mary Fiske Paget under said will; Charles G. .Stevens, John L. Melcher, and George F. Richardson, as trustees of Henry Leiden Stevens; and George F. Richardson and Charles G. Stevens, as trustees of Ellen S. Melcher. The complaint alleges, in substance, that Paran Stevens died April 25, 1872, leaving him surviving his widow, Marietta R. Stevens, And three children, to-wit, Ellen S. Melcher, wife of John L. Melcher, Mary Fiske Stevens, wife of Arthur H. F. Paget, and Henry'Leiden Stevens. That under a marriage settlement between Mr. and Mrs. Paget her interest in the million trust legacy was vested in trustees, thereby appointed, who were made parties to the action. That by his will he appointed his wife, Charles G. Stevens, his nephew, and John L. Melcher, his son-in-law, executors and executrix.' He also appointed said Charles G. Stevens and George F. Richardson, who married the sister of Mrs. Stevens, trustees for her under the will. He gave his wife the use of certain real and personal property in New York city and at Newport, and a legacy of $100,000, and he also gave the town of •Claremont, N. H., a legacy of $40,000. After making these and other bequests, all of which have been satisfied, except the Claremont legacy, and the legacy for the benefit of Mrs. Stevens, he directed the remainder of his estate to be divided into three equal parts, for the benefit of his three children, and Appointed said Charles G. Stevens and G. F. Richardson trustees for Mrs. Melcher, and appointed Mrs. Stevens, Charles G. Stevens, and Mr. Melcher trustees for Mrs. Paget, and appointed Mr. Richardson, Mr. Stevens, and Mr. Melcher trustees for his son, Henry Leiden Stevens. The complaint then alleged that the testator gave to said Richardson and Stevens, as trustees for Mrs. Stevens, $1,000,000, in which should be included, at a fair valuation, No. 1 State-Street block, Boston, to be applied to her use during life, and at her death the principal to be equally divided among his three children, the issue of any deceased child' to take the parents’ share; and, in case at the deatli of his wife tliere should be no descendants of the testator living, the principal of the legacy was given to collateral relatives and other parties named. That the testator owned a large amount of real estate in the city of New York, most of which was unproductive, and that his personal estate (which consisted largely of interests in hotels in New York, Boston, and Philadelphia) was insufficient to discharge all debts and all legacies, but wras sufficient to pay the debts and legacies, except said $100,000 legacy, and said million trust "legacy, the payment of which legacies would require all the personal estate, and a sale of the hotel interests, and still leave a deficiency to be made good from the real estate; and that as said hotel interests yielded a large income in proportion, to their pecuniary value, or to what could be realized on a sale</p> <p>thereof, it was to the interest of all parties that the same should, if possible, be retained.</p> <p>The complaint then sets up the so-called “construction action,” or action No. 1, commenced in this court in December, 1872, and the proceedings therein, including .the interlocutory judgment of April 15,1873, and the final judgment of July 23, 1873, whereby it was, in substance, adjudged that the hotel interests (provided his other estate was sufficient to meet the other requirements of the will) should be held for the benefit of the three residuary estates, and the proceeds thereof treated as income and be paid to his children, and that the balance of the million legacy might be paid by the conveyance by the executors to said trustees of such portions of the real estate of the testator as might be agreed upon at the valuations reported by the referee in said action and adjudged by the court; and it was thereby further adjudged that, if it should become necessary to sell any of the said real estate to satisfy debts or legacies, any party to the action might apply to the court on the footing of said judgment. That by said judgments the value of the State-Street store was fixed at $105,000; the value of the apartment house premises on Broadway, Twenty-Seventh street, and Fifth avenue was fixed at $850,000; and the interest of the testator in the adjacent premises, Nos. 228 and 230 Fifth avenue, over and above the mortgages thereon, was fixed at a nominal sum; and the value of No. 3 East Twenty-Eighth street was fixed at $25,000. That the apartment house premises were subject to a mortgage of $425,000 held by the Dime Savings Bank, No. 228 Fifth avenue was subject to a mortgage of $70,000, and No. 230 Fifth avenue was subject to two mortgages, aggregating $70,000. The complaint then alleged the making of an agreement of October 28, 1873, executed by the executors, and by Mrs. Stevens as executrix and individually, and by her trustees; and that in pursuance of said judgments and agreement the executors and Marietta R. Stevens, as executrix, executed to the plaintiffs as her trustees two deeds, dated October 30, 1873, by one of which was conveyed as of April 25, 1872, the date of the testator’s death, the State-Street store, for the sum of $105,000, and by the other deed were conveyed as of May 1, 1873, “the apartment house,” and the interest of the testator in the adjacent premises, Nos. 228 and 230 Fifth avenue, and also No. 3 East Twenty-Eighth street, in said city, for the expressed consideration of $875,000, subject to said several mortgages; and said property was, as stated in the agreement of October 28, 1873, applied as of May 1, 1873, on the million legacy, as a payment of $555,000 over the mortgage, which sum consisted of $425,000 for the apartment house, $105,000 for the State-Street store, $25,000 for 3 East Twenty-Eighth street, and of $1 for interest in 228 and 230 Fifth avenue. That under said agreement Mrs. Stevens entered into possession of said premises, and received the income thereof, and continued so to do until October 1, 1879, and that her trustees were thereby left without money or funds; and that, notwithstanding she had violated the agreement by refusing to pay the taxes, interest, insurance, etc., and the trustees had given the 10 days’ notice required by the agreement, she refused to surrender the premises.</p> <p>It also appears that in December, 1873, another action, known as “Action No. 2,” was commenced in this court under the advice of Mrs. Stevens’ then counsel, in which the executors and executrix, and the same parties individually and as trustees, were plaintiffs, and George F. Richardson and others were defendants, to procure a judgment for the sale of real estate to pay the balance of the million trust legacy, and that said action is still pending. That Mrs. Stevens, without the authority, consent, or knowledge of said trustees, tore down two houses on 228 and 230 Fifth avenue, and erected a new building, which was added to and incorporated in the apartment house, and that after the said conveyance to her trustees one of the foundation walls of the apartmept house premises settled, which necessitated the expenditure of</p> <p>$33,707.31 to restore and uphold said wall; and that, her trustees being without money, the executors, at their request, furnished said sum, and charged it to the plaintiffs as trustees; and that other sums, amounting to about $7,000, ■expended for repairs to the apartment house between April 26, 1873, and the date of the conveyance to her trustees, were, under the agreement of October •28, 1873, also charged to her trustees, and that Mrs. Stevens objected to such charge. That in violation of the agreement of October 30, 1873, Mrs. Stevens refused to pay the interest on the savings bank mortgage, and her trustees, ■still being without funds, applied to the executors to pay said interest on their account, and in accordance therewith the executors paid $14,875, November 16, 1877, and $13,433.29, May 8, 1878, for svtch interest. That in December, 1887, the Dime Savings Bank called in said mortgage, and it became necessary to pay thereon $125,000 so as to reduce it to $300,000, at which sum the trustees had, through the employment of one Wood, a broker, procured the New York Life Insurance Company to take it; and that said trustees, being still without funds, requested the executors to furnish said sum; and they, at the request and on the account of said trustees, paid on said mortgage $40,000, January 19, 1878, $35,000, January 26, 1878, and .$50,000 on May 11, 1878; and that said executors also, at the like request, paid $5,995.50 to Wood for his commissions and the expenses of examining the title; and they also paid $2,552.22, being the interest on said mortgage up to JunelS, 1878, when it was transferred to the New York Life Insurance Company. That the trustees claimed that said $125,000 so paid on the mortgage should be charged to the trustees as payment on account of the principal of the million dollars trust legacy. That Mrs. Stevens, as executrix, had collected large sums of money which she had not applied to the purposes of .the estate, but had retained, claiming to apply them to her legacy of $100,-.000, and to the interest thereon, and to the interest on the unpaid balance of the million dollars legacy, and refused to allow such moneys to pass through the hands of the executors, or of her trustees, but ignored them entirely. That the amounts so collected and chargeable to her up to May 1, 1874, were settled by a decree of the surrogate, entered July 29, 1876, at $123,538.68, without including any interest chargeable to herthereon; and that the amount retained by her from May 1, 1874, to May 1, 1878, was, exclusive of interest, $360,460.08, as appeared by accounts filed with the surrogate, and then un settled; and that the amount retained between May 1, 1878, and the commencement of such action, was $74,257.70; and the plaintiffs claimed that these sums should be charged to Mrs. Stevens as payments on account of interest on the million legacy. The complaint then demanded judgment that an account be taken of the sums paid plaintiffs for and in respect of the $1,000,000 legacy, and of the sums which the widow had received, or which she should be charged on account, either of the principal or interest of said legacy, and how much thereof is invested in the real estate conveyed to plaintiffs by the executor of Paran Stevens, deceased, etc.</p> <p>Mrs. Stevens, individually, and as executrix, served her answer, March, 13, 1880. Mrs. Melcher, Mrs. Paget, and Alfred H. F. Paget, and George or Gerald Cecil Stewart Paget, trustees under her marriage settlement, appeared in this action, but put in no answer. Henry Leiden Stevens appeared in said action by attorney, and put in a general answer individually, and as one of the marriage settlement trustees of Mrs. Paget. Mrs. Stevens answered said complaint individually and as executrix, and in her answer claims, in substance, that neither the $33,707.31, for repairs of the apartment house, nor the $5,995.50 paid Wood on the transfer of said mortgage, nor the $125,-000, should be charged to her of her trust legacy; also that an alleged expenditure of $130,000 made by her in the construction of a new building on 228 and 230 Fifth avenue, in the place of that which she had torn down, should be reimbursed to her from the capital of said trust; and that, notwithstanding the judgment of this court, the children were not entitled to the hotel interests, but that the same were applicable to the payment of said million trust legacy. She admits that she received and collected considerable sums of money belonging to the estate, and claims to apply the same to the payment of her legacy of $100,000, and the interest on that portion of the million dollars trust legacy which had not been paid over to her trustees, and also admitted that, if said moneys were so applied, said legacy of $100,000 was paid.</p> <p>The trial of the action commenced before a referee in March, 1882; the testimony was closed on November 10,1883, the referee decided that the million legacy drew interest from the death of testator, and decided that the $125,000 and the $33,707.31 and the $5,955.50 were to be charged to the trustees, and credited to the executors as so much paid on account of the principal of the million trust, and that Mrs. Stevens was not entitled to be reimbursed for her expenditure in constructing the new buildings on 228 and 230 Fifth avenue; that the real estate of the testator was the primary fund for the payment of the balance of the million legacy and other unpaid legacies, and that it was amply sufficient to pay the same; and that (the real estate being sufficient) the hotel interests were not applicable to the payment of said legacy. That this action does not involve the settlement of the accounts of the executors in New York or in Boston, nor of the accounts of the trustees of the three residuary estates, nor of the accounts of the trustees of Mrs. Stevens relating to the Boston property, nor of Mrs. Stevens’ accounts relating to the property in Boston or the property in Newport, and that no other accounts are involved or are to be investigated in this action save the accounts between the plaintiffs as trustees, and Mrs. Stevens as their cestui que trust, in respect to tile New York property, and the accounts of Mrs. Stevens in respect of the moneys collected by her from the estate, and retained by and chargeable to her on account of the $100,000 legacy and interest thereon, and interest on her $1,000,000 trust legacy. Since the decision of the said referee the only proceedings before him (other than the settlement of the findings) have been the taking of said accounts between the plaintiffs as trustees and Mrs. Stevens as ■cestui que trust, and the determination (on the principles settled by him) how much has been paid for principal on said million legacy, and how much has been paid or is chargeable (to these plaintiffs or Mrs. Stevens) as payments for interest on the said million legacy. A motion was made by defendant Marietta It. Stevens before the referee to stay all proceedings until the plaintiff should bring in the executor of Henry Leiden Stevens and the infant children of Mr. and Mrs. Paget, and the parties who may ultimately become interested in the million legacy under the fifth clause in case of the death of Mrs. Stevens without leaving descendants of the testator, and that said motion was denied. The fact that the parties ultimately entitled to the principal of the million legacy after the death of Mrs. Stevens without leaving descendants of the testator were not parties to the action was brought to the notice of the referee prior to his decision of June 4, 1884, and that Henry Leiden Stevens died July 19, 1885, and that his death was known to all the panties immediately thereafter, and was brought to the attention of the referee in October, 1885, and was noted on the minutes on January 6, 1887, and that no suggestion has at any time been made that his executor, nor any of the persons before named, should be made parties. The referee, on June 8,1888, ordered Mrs. Stevens to bring down her accounts as executrix to May 1,1887, and to file such additional accounts on or before September 15, 1888; and the reference, on the application of Mrs. Stevens and her counsel, was adjourned to October 8, 1888; whereupon a motion was made for a stay of all proceedings until the plaintiffs should bring in the successor of Alfred H. Paget as marriage trustee, (he having died in August, 1888,) the infant children of said Mary Fiske Paget, and the ultimate distributees under the will of said Paran Stevens, deceased; and that said motion was denied on November 10th,</p> <p>and the reference adjourned to November 24th, previous to which date all proceedings herein were stayed by the order to show cause granted by the judge at special term.</p> <p>On the hearing at chambers, Judge Lawrence denied the motion, and defendant Marietta B. Stevens, individually and as executrix, appeals.</p>

Action by Fritz Grossman against the Supreme Lodge of Knights and Ladies of Honor, as beneficiary under a certificate issued by defendant to Mina Grossman (deceased) upon her life. On the trial at circuit the jury found for the plaintiff, and defendant moved for a new trial. The motion was denied, and defendant appeals therefrom, and from the judgment entered upon the verdict.

Action by Christian Tobias and another against Lazarus Lisberger, to recover the difference between the contract price on the sale of old iron. A judgment was entered at circuit dismissing the complaint, and plaintiffs appeal. For opinion on former appeal, see 12 N. E. Rep. 13.

This was an action in replevin by Jacob Ackerman and others to recover the possession of a quantity of boots, shoes, and rubbers, held by the defendant O’Gorman as assignee under the general assignment of Dennis Murphy, who obtained possession of the goods by virtue of purchases, which the plaintiffs claimed were fraudulent, so that no title passed. Murphy was engaged in business at the city of Oswego, and also at Oswego Falls.

Action to enjoin a nuisance, and for damages, brought by John M. Olmsted against Bobert S. and Stephen W. Bich. The action was commenced May 15, 1886.

The action was brought by Lanie M. Petrie against Morgan Petrie and others, for the partition of certain real estate in the town of Vernon, Oneida county, owned by Nicholas H. Petrie at the time of his death. Petrie died on May 23, 1883, aged about 87 years. The plaintiff is one of his heirs at law, and as such claimed to own an undivided one-fourth of the real estate. The other heirs at law are made parties defendant.

John Price was indicted for grand larceny in the first degree, charged as a second offense, under Pen. Code 21.

This was an action commenced in justice’s court, and appealed to the county court, where plaintiff recovered a verdict and judgment for $55.

Lawrence county. Action by Catherine McGovern, as administratrix of the estate of Thomas McGovern, deceased, against the Central Vermont Railroad Company for damages sustained by her through the death of said Thomas McGovern, caused by the negligence of defendant. McGovern was employed by the defendant to work in its grain elevator at Ogdensburg. The elevator has 144 grain bins, some double and some single. Bin Bo. 101 was a double bin 50 feet deep, with sides 11 by 12 feet.

Action by Luke Cox against the Albany Brewing Company, to recover damages for breach of a contract of employment, alleged by the plaintiff to have been made by and between him and the defendant for the plaintiff’s personal services for one year, at two dollars per day. The plaintiff served ten weeks and one day, and then was discharged; being paid in full for the time of his actual service.

Action by Margaret Meífally against the city of Cohoes to recover damages sustained by the plaintiff by falling on an icy sidewalk on February 7, 1885, on Factory street in the city of Cohoes.

Action by Nelson B. Whitney against the town of Ticonderoga, to recover for injuries sustained by the plaintiff “by reason of a defective highway.” The evidence tended to show that on May 4, 1888, after dark, the plaintiff, while riding in a “Frazer Road-Cart,” and driving the horse attached to it, along Main street, in the village of Ticonderoga, came in collision in the dark with a road-scraper belonging to the defendant, which had been left in the roadway near the…

This was an action at law' by Henri M. Braem and Albert Tower, to recover damages which plaintiffs claimed to have sustained by the wrongiful acts of the defendant. The plaintiffs were copartners. The defendant was a corporation duly organized under the laws of the United States. The Syracuse Iron-Works was a corporation duly organized under the general manufacturing laws of the state, and doing business at the city of Syracuse.

Holt, Referee. Action by Milo Hine against Nathan Cushing, owner in fee of a certain building in Brooklyn, a portion of which was leased to plaintiff, to recover $9,777.91 damages sustained by reason of the fall of the building, and a fire resulting therefrom, which destroyed plaintiff’s machinery, tools, stock, and business, and which was alleged to have been caused by defendant’s negligence.

Action by Julius Leszynsky against Samuel H. Leszynsky, for $10,000 money loaned. Defendant admitted giving plaintiff a certificate of deposit for the amount claimed, but alleged that it was done to give plaintiff a reputat.on as a business man. Case tried by jury, and verdict for plaintiff. From the judgment entered on the verdict and the order denying a motion for a new trial defendant appeals. For disposition of motion to dismiss appeal, see 5 N. Y. Supp. 946.

Action by Adeie Bernheimer against Thomas Kilpatrick for damages to a building, caused by excavations made by defendant on his adjoining lot to a deptli of more than 10 feet. Trial by jury, and verdict for plaintiff. From the judgment entered on the verdict and from the order denying his motion for a new trial defendant appeals.

<p>Evidence—Pakol to Explain Whiting.</p> <p>In an action for the price of goods sold, in which defendant contended that all the goods had not been delivered, it appeared that plaintiff signed an agreement to deliver to defendant “about 200 bushels of buckwheat. ” Held, that it was competent to show, by paroi evidence, that plaintiff informed defendant’s agent, with whom</p> <p>the contract was made, that it was “partnership buckwheat, ” in which his share would be about 100 bushels; that the agent wrote the contract for 200 bushels, and told plaintiff that, if the quantity fell short, there would be no trouble about the pay for what was delivered,—as such evidence is not necessarily inconsistent with the writing, but relates to the time and manner of payment, as to which the contract was silent.</p>

Belators, as trustees of the First Congregational Church of the village of Phoenix, appeal from an order affirming an assessment against the relators and dismissing a writ of certiorari obtained, under the provisions of chapter 269 of the Laws of 1880, to review an assessment upon certain real property .belonging to said First Congregational Church, known as the “Parsonage.” The facts, as stated in the opinion of the special term, {ante, 771,) are as follows: The relators…

Action for mortgage foreclosure by Henry J. Burchell against Susannah Osborne and others. The mortgage foreclosed was a “blanket” mortgage covering eight houses and lots. The decree, which was entered by consent of all parties, directed that the mortgaged premises should be sold in eight separate parcels, and that the order of sale should be inverse to that in which the mortgages, which were held by the defendants, had been given.

Action by Augustus G. Wood and William G. Percival against James Carleton. In the fall of 1882 plaintiffs agreed with defendant to manufacture and deliver to him at his mill in Camden a turbine water-wheel, for the price of $300. The wheel was manufactured and delivered about the 9th February, 1833. Defendant, on the 24th May, 1883, by note, which was afterwards paid, paid on the price the sum of $200.

Action by James G. Kitchen to set aside as fraudulent and void as against plaintiff a general assignment made by the defendants Samuel S. and George M. Lowery, and also two chattel mortgages ma le by them,—one to the defendant Sheard, and the other to the defendant Kora K. Lowery. The defendants Samuel S. and George M. Lowery were partners under the firm name of S. S. Lowery & Son.

Case submitted on agreed statement. Plaintiff, Catherine B. Palmer, claims to recover the sum of $5,000 as the amount of an insurance benefit payable to her as the beneficiary of her husband, Joseph H. Palmer, a deceased member of defendant association.

Sarah A. Merchant, administratrix of the estate of David Merchant, deceased, appeals from a decree of the surrogate directing the sale of real estate for the payment of debts. David Merchant died intestate, April 14, 1887. Letters of administration were on August 23, 1887, issued to the appellant, his widow. On September 15, 1887, she filed an inventory, showing that there was personal property to the amount of $446.10, applicable to the payment of debts.

<p>Appeal from judgment on report of referee.</p>

Action by Joshua Kuh against Clarence Barnett, sued as John Barnett, for an injunction. A. preliminary injunction was granted, and on defendant’s motion was vacated. Plaintiff appeals.

Action by Samuel Merwin and others against Andrew J. Rogers, to recover damages for misconduct of defendant as the justice of the tenth district court in the city of Hew York. The special term of the city court sustained a demurrer to the complaint, ( 1H. Y. Supp. 211,) and this judgment was affirmed by the general term, (2 H. Y. Supp. 396.) Plaintiffs again appeal.

Action by James L. McMulIin against John Mackey, in a justice’s court. A judgment of the justice in favor of plaintiff, on default of defendant, was affirmed by the county court, and defendant appeals. The complaint before the justice was in writing, and verified, and after the title was as follows: “ The plaintiff, for cause of action again'st the defendant, alleges that the defendant above named is a resident of the city of Watertown.

Action by Alfred C. Lewis and Alvin R. Smith against William H. Douglass, to recover damages for the negligence of defendant in failing to complete a levy on real estate, under an attachment issued to him in an action brought in the supreme court by plaintiffs against one Thomas H. Clarke. Defendant, during the year 1885, was sheriff of Delaware county. Clarke was indebted to plaintiffs in the sum of $215, with interest from April 25, 1885, on two promissory notes.

Plaintiffs sought to establish and enforce an equitable mortgage upon certain real estate of Dennis Murphy, the assignor of defendant O’Gorman.

Action by Flora E. Graves against Frederick L. Santway, a physician, for alleged malpractice. Verdict, $500 for the plaintiff. Motion for a new trial on the minutes, on the grounds—“First, that the verdict is contrary to law; second, that the verdict is contrary to the facts; and, third, on exceptions taken at the trial.” Appeal from the order denying the motion for a new trial, and also from the judgment entered upon the verdict.

A. B. Cohn, executor, sued Joseph Husson, defendant, who pleaded a promissory note by way of counter-claim. From an order that the jury find a ver-« diet for defendant, plaintiff appeals.

Action by William Y. Mortimer and Richard Mortimer, executors, etc., of Richard Mortimer, deceased, against the New York Elevated Railroad Company and the Manhattan Railway Company, to recover for injuries done to plaintiffs’ land by the construction and operation of an elevated railroad on the adjacent street. Verdict and judgment for plaintiffs, and defendants appeal.

Action by Burton W. Atwater to recover from the town of Veteran damages for the accidental killing of a horse and injuries too wagon belonging to-the plaintiff, a resident of the town of Dix, Schuyler county.

<p>1. Attorney and Client—Contracts between.</p> <p>Plaintiff, 80 years old, sued to set aside a foreclosure of a mortgage, which she alleged she owned, and in which suit had been brought and judgment had been obtained without her knowledge or consent, subjecting the property to two tax-leases and a tax certificate, in favor of the wife of her attorney. Her attorney, one of the defendants, claimed to be the owner of the mortgage, though it ran-to plaintiff, alleging that She owed him $3,000 on an old agreement that he should have all a certain piece of land brought over $3,000 at a foreclosure of amortgageof $6,000 which plaintiff held thereon,and alleged that the land sold at foreclosure for $6,000. Held that, in view of the inequitable nature of the contract set up by the attorney, and the relations existing between the parties, the judgment in foreclosure would be set aside.</p> <p>2. New Trial—Newly-Discovered Evidence.</p> <p>A new trial on account of newly-discovered evidence will not be granted where on such trial no different result could be expected.</p>

From an order setting aside an attachment issued on the ground that defendant kept himself concealed to avoid service, plaintiffs appeal.

The Syracuse & Baldwinsville Railroad Company executed its mortgage to the Central Trust Company, bearing date July 1, 1886, to secure the bonds of the road, amounting to $160,000, and the coupons attached thereto, which mortgage was recorded in the clerk’s office of the county of Onondaga on September 2, 1886. A default having occurred, this action was commenced to foreclose the said mortgage.

<p>Appeal from circuit court, Onondaga county.</p> <p>The plaintiff, Charles II. Hart, alleges in his complaint that .he is the -owner of lots 17 and 18, in block 82, in Syracuse; that in April, 1884, the defendants, John E. Ryan, Dominick Rafferty, and Peter Iilink, wrongfully and negligently excavated the land adjacent to plaintiff’s said land on the east side thereof, and took away soil therefrom without leaving sufficient support for the soil of the plaintiff’s land in its natural state, and that plaintiff’s land sank away; and plaintiff also alleges that in the month of April, 1884, defendants took away the soil without leaving sufficient support for plaintiff’s land and buildings, and that thereby plaintiff’s house and appurtenances thereto fell in and were destroyed, and the goods and chattels of plaintiff damaged and broken. The complaint alSo alleges that defendants wrongfully broke and entered on plaintiff’s lands and premises, and removed soil therefrom, and undermined certain buildings thereon, and caused them to fall and give way. The defendants, in addition to denials, alleged that Ryan & Raf-</p> <p>ferty took a contract to build a five-story brick building adjacent to the premises of plaintiff, and that Ryan & Rafferty sublet to the defendant IClink the work of excavating. There was some evidence that Klink was employed by Ryan & Rafferty to dig out the cellar under their direction, and receive so-much a yard. The precise terms of the arrangement between him and Ryan & Rafferty do not very clearly appear. There was some evidence to show that plaintiff’s buildings stood from one to two inches inside of his east line, and that defendants dug under his wall for the purpose of laying their footing-courses along his east line. There was a conflict in the evidence whether the wall was erected on the middle of the footing-course, (as is usual,) or whether it was erected on the edge of the footing-course. There was some evidence that the footing-course was to be about three feet. There was a conflict in the evidence as to the precise location of the footing-course. Verdict being given for plaintiff for $800, judgment was entered thereon. Defendants’ motion for a new trial was overruled. From the judgment, and from the order denying the motion for a new trial, defendants appeal.</p>

Action by Wesley B. Holmes and Edwin McDonald against Harvey Toung, to recover damages for alleged slander of plaintiffs’ title to what is known as the “Chyle Cheese Factory.” It was built on lands belonging to the defendant, in the town of Springfield.

On petition for injunction. Actions by William W. Thompson, as tenant by the curtesy, and Pell Thompson and others, as remainder-men, against the Manhattan Railway Company and others for damages.

The following is the substance of the referee's report, from a judgment on which defendants appeal: The plaintiffs were partners, as attorneys, in NTew York, under the firm name of Stanley, Clarke & Smith. The defendants were partners in business in New York, under the name of William Pickhardt & Kuttroff. The defendants were engaged in importing from foreign countries dyes, which were subject to duty.

Petition by William H. Bard against the administrators of William Elliott, deceased, to vacate a decree entered in 1866, adjusting and settling accounts of executors of the estate of one Lorentus Salisbury, deceased, and distributing funds and property on hand among next of kin,

<p>Special Guardian—Fees.</p> <p>A special guardian, who has fitly discharged his duty, must be paid a proper fee therefor.</p>

Action by board of supervisors of Oswego county against Charles B. Betts to recover the possession of real property situated in the city of Oswego, described in the complaint.

Daniel I. Richards and D. J. Palmers, as assignees of Martin 0. Rockwell, commenced an action to foreclose a mortgage made by E. La Tourette to secure a part of the purchase money upon certain premises conveyed, to-wit, to secure the sum of $1,700 in 10 years from the 30th day of March, 1880.

The plaintiff, Jacob Deach, sued defendant, William H. Perry, to recover money due for labor accounts; the greater portion of the claim being demanded by plaintiff on alleged assignments by the original claimants. J udgment on default was entered. The inquest as taken was set aside, and the ■cause ordered to be referred. The referee afterwards made a report in favor of plaintiff and against defendant for $60.50, and ordered judgment for that .amount.

By order of court Alfred A. Holmes was authorized to institute and prose■cute to judgment, as committee of the property of Alanson R. Lewis, an action against J. Henry Abbott, Duane Spalsbury, and Polly Butler, “and to join such other parties as defendants therein as are related to the transactions involved in the action, and such as have or claim to have an interest in the property of said Lewis; such action to be prosecuted for the setting aside of liens upon the said…

<p>Appeal from special term, New York county.</p>

<p>Appeal from circuit court, Suffolk county.</p>

<p>Appeal from special term, New York county.</p>

<p>Appeal from circuit court, Kings county.</p> <p>Action by Henry C. Brown against the German American Insurance Company.</p>

Action by Hattie S. Crowell against Henry E. Wells and others, to foreclose a mortgage. The surplus arising upon the sale was awarded to defendant William H. Bierds, and defendant Daniel Doody appeals.

<p>Appeal from circuit court, Kings county.</p> <p>Action by Phoebe A. Cousins against the Third Avenue Railroad Company.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Ida L. Tooker against John S. Ackerly.</p>

<p>Appeal from Kings county court.</p> <p>Action by Conrad Lobhardt against Annie Gilbert.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Asa W. Parker against Theresa B. Collins and others.</p>

<p>Appeal from special term, Kings county.</p>

<p>Appeal from circuit court, Westchester county.</p>

<p>Appeal from an order of the special term, Queens county, confirming report of a referee, and directing the payment to C. P. Huntington of $4,000 advanced by him to the reorganization committee of the Rockaway Beach Improvement Company.</p>

<p>Appeal from special term, Dutchess county.</p>

<p>Appeal from special term, Dutchess county.</p>

Action by James Cochrane against Cacilie Bauer, (sometimes called Cacelia Baure,) Thomas C. Shannon, and Antonie Silverstone, to foreclose a mortgage executed by defendant Shannon to Moritz Bauer. The mortgage, by mesneassignments, passed to plaintiff.

<p>Appeal from court of sessions, Saratoga county.</p>

<p>Appeal from special-term, Hew York county.</p>

For statement of facts see opinions on appeals from the surrogate’s decree and from an order denying an application for a stay of proceedings, ante, 635,638. This appeal is from an order refusing to insert certain reservations in the decree.

<p>Appeal from special term, Hew York county.</p>

<p>Appeal from judgment on report of referee. Action by Algernon S. Baxter against Edward B, Wesley.</p>

<p>Appeal from special term, Richmond county.</p>

<p>Appeal from trial term.</p>

This same order was before this court at the December, 1888, term, and an order was then made by this court, reversing the special term order, so far as it suspended the operation of the j udgment or relieved the defendant from the duty of immediate obedience to the injunction contained in it, on the ground that the court had no power to make the same. See 4 N. Y. Supp. 633.

<p>Appeal from judgment on report of referee.</p>

<p>Appeal from special term order denying defendant’s motion to set aside default and inquest taken.</p>