Volume 60 — New York Appellate Division Reports

Appeal by the plaintiff, the Playa de Oro Mining Company, from a judgment of the Supreme Court in favor of the defendant Otis S. Gage, except from so much thereof as dismissed the said defendant’s seventh counterclaim, entered in the office of the clerk of the county of New York on the 30th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits and establishing a counterclaim of the…

<p> Bill of particulars—when proper as to alleged misrepresentations inducing a defendant’s execution of a guaranty. </p> <p>Where a corporation sues two persons upon a guaranty executed by them, and one of such persons interposes an answer setting up, as a defense, that the guaranty was obtained by fraud and misrepresentations made by one Higgins on behalf of, and with the authority of, the corporation, the corporation, upon presenting an affidavit from which it appears that no one connected with the corporation has had any dealings with Higgins, except the affiant, and that he never saw the answering defendant or dealt with her and had no knowledge whatever regarding her defense, and that neither he nor any officer of the corporation knows anything regarding the alleged fraud or misrepresentations, or when or where they were made, is entitled to a bill of particulars showing what the alleged representations were and when and where they were made.</p> <p>Appeal by the plaintiff, The H. B. Claflin Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1th day of December, 1900, denying the plaintiff’s motion for a bill of particulars.</p>

Appeal by the defendants, the New York Produce Exchange and ' others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of December, 1900, upon the report of a referee declaring void an amendment to the by-laws of the defendant, the New York Produce Exchange, and enjoining the defendants, the trustees of the gratuity fund, from carrying out the provisions of such by-law.

Appeal by the defendant, Hugh O’Neill, from.a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of May, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s- office on the 21st day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Henry P. Booth and another, from an interlocutory judgment of the Supreme Court in favor of the, defendants, entered in the office of the clerk of the county of Hew York on the 29th'day of January, 1901, upon the decision of the court rendered after a trial at the Hew York Special. Term sustaining the several demurrers of the defendants to the complaint.

Appeal by the defendant, Matthew Baird, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county-of Hew York on the 26th day of December, 1900, denying the defendant’s motion for a review of the taxation of the bill of costs in the action and the dis-allowance for $349.50 paid for stenographer’s minutes.

Appeal by the defendant, The Ransom Gas Machine Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of January, 1901, denying the defendant’s motion to set aside the service of the summons as not in compliance with section 432 of the Code of Civil Procedure, said defendant being a foreign corporation.

Appeal by the defendant, the National Exhibition Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of June, 1900, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Irving T. Bush, from an interlocutory judgment of the Supreme Court in. favor of the defendant, Bird S. Coler, as comptroller of the city of Hew York, entered in the office of the clerk of the county of Hew York on the 8th day of December, 1899, upon the decision of the court, rendered after a trial at the Hew York Special Term, sustaining said defendant’s demurrer to the complaint.

Appeal by the plaintiff, William Urbauer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day óf. June, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Irving T. Bush, from, a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 10th day of April, 1900, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by Hugh Douglas, individually and as executor and trustee under the last will and -testament of Mary E. Bird, deceased, from certain portions of a decreei of the Surrogate’s Court of the .county of Hew York, entered in said Surrogate’s Court on the 25th .day of June, 1900, in a proceeding for the settlement of his accounts .as such executor and trustee.

Appeal by the plaintiff, the Hew Jersey Steel and Iron Company, from an interlocutory judgment of the Supreme Court in favor of the defendant Andrew J. Robinson, entered in the office of the clerk of the county of Hew York on the 10th day of January, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term overruling the plaintiff’s demurrer to the amended answer of the defendant Andrew J. Robinson.

Appeal by the defendants, Nicholas H. De Nyse and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 8th day of December, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered, in said clerk’s office on the 13th day of December, 1900, denying the defendants’ motion for a new trial made upon the minutes. ■

Appeal by the defendant, John Y. Signell, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1901,. denying the defendant’s motion to vacate a warrant of attachment.

Appeal by the defendant, Bird S. Coler, as comptroller of the city of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of Hovember, 1900, granting a peremptory writ of mandamus.

Appeal by the defendant, William Lansing, from an order of the ■Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of November, 1900, denying the defendant’s motion to change the place of trial of. the action from the county of New York to the county of Albany for the convenience of witnesses.

Appeal by the defendant, Gustave Huerstel, individually and as trustee, etc., of Sara Huerstel, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of February, 1901, overruling exceptions to the report of a referee, and denying a motion to set aside and vacate such report.

Appeal by the defendant, James T. Lane, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 1th day of November, 1900, and entered in the office of the clerk of the county of New York overruling a demurrer to the complaint.

Appeal by the plaintiff, Robert Flaherty, from a judgment of the Supreme Court in favor -of the defendants, entered in the office of the clerk of the county of Hew York on the 21st day of April,-' 1900, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.

Appeal by the defendants, George J. Gould and others, as trustees under the last will and testament of Jay Gould, deceased, from an order of the Supreme Court, made at the ISTew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of January, 1901, continuing an injunction pendente lite,

Appeal by the defendant, James Petersen,, from a judgment ¿f the Court of Special Sessions of the Peace in and for the city of New York, in favor of the plaintiff, rendered on the 29th day of December 1899, convicting him of conspiracy for conspiring falsely to institute and maintain an action.

<p>Appeal by the claimant, Frederick Booss, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of July, 1897, confirming the report of commissioners of estimate and assessment appointed in the proceeding to acquire title to property for a road or “ driveway ” along the westerly bank of the Harlem River in the borough of Manhattan, city of New York.</p> <p>This road or “ driveway ” was constructed under authority of an act of the Legislature of the State of New York. (Laws of 1893, chap. 102.) By section 10 of that act it is provided, among other things, that no portion of the road or “ driveway ” shall be used for any other purpose than, for riding by equestrians and driving of carriages, and all trucks, carts and vehicles of all kinds for the transportation of merchandise or freight of any description shall be excluded therefrom, and that no street or other railway shall be laid down on the “driveway” or any portion thereof. The claimant Booss is the owner of land on the westerly side of Harlem river. The speedway, as constructed, is built in front of his land. It is constructed partly in what is generally called the tideway of the Harlem river, and partly over land under water beyond the tideway belonging to the city of New York. The effect of the construction is to shut off direct access to some of the claimant’s lots from the river. Prior to the construction and when the speedway was projected, the tide ebbed and flowed in front of the claimant’s land. He insisted before the commissioners that he was entitled to compensation for the destruction of his easements as a riparian owner, but the commissioners rejected that claim and made no allowance for the easements taken. The present appeal involves only the question of his right to such compensation.</p>

Appeal by the defendant, Charles A. Tucker, individually and as executor, etc., of George W. Tucker, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of November, 1900, upon the decision of the court rendered after a trial at the New York Special Term overruling a demurrer to the complaint.

Appeal by the defendants, Charles V. Culver and others, from an interlocutory judgment of'the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 7th day of February, 1901, upon the decision of the court rendered after a trial at the Few York Special Term, overruling the •demurrers to the complaint.

Appeal by the plaintiff, James L. Montgomery, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of January, 1901, vacating an order directing the service of the summons by publication, or personally, without the State.

Appeal by the plaintiff, Max Mittenthal, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of March, 1901, denying the plaintiff’s motion to restore the action to the Special Term calendar for trial after it had been marked “ reserved generally.”

Appeal by the plaintiff, Stevens Voisin, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of New York on the 12th day of September, 1900, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial.

■ Appeal by- the plaintiffs, John W. Jones and another, from a judgment of the Supreme Oourt in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of July, 1900, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

<p>Administrators bond—liability of his surety for judgments against him inf aw o1 his intestate — burden of proof as to his insolvency — examination of evidence by the appellate court to-sustain a judgment.</p> <p>In an action brought upon an administrator’s bond to recover the amount of three judgments recovered by the intestate against the administrator, it appeared that the- administrator’s liability to the estate upon the judgments was litigated on his accounting, and that the matter was referred to a referee, who found that the administrator was liable for the amount of the judgments and that he should have accounted for them as debts due the estate; that the decree of the surrogate charged the administrator with the amounts of the three judgments, and that the execution issued thereon against the administrator was . returned unsatisfied. The surety alleged as a defense that the administrator was insolvent and unable to pay. The trial court found that the surrogate’s decree determined that the administrator should have accounted for the judgments as debts due to the estate “as he was able to pay them,” but made no-further finding upon the question of the' insolvency of the administrator, although requested so to do. Judgment was rendered against the surety for the amount of the judgments.</p> <p>Held, that the decree of the surrogate was prima facie conclusive upon the question of the surety’s liability, and that if the latter sought to relieve himself from such liability it was incumbent upon him to show that the administrator was insolvent;</p> <p>That a finding that the administrator was solvent was not necessary to sustain a judgment against the surety, but that if it were, the evidence in this case was sufficient to warrant such a finding;</p> <p>That the court might, for the purpose of sustaining the judgment, examine the evidence for the purpose of ascertaining whether it would sustain such a finding.</p> <p>Semble, that it could not do so for the purpose of reversing the judgment. O’Brien, J., dissented on the ground that the trial court failed to consider or pass upon the defense of insolvency interposed by the surety.</p>

Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of December, 1900, resettling the decision and-judgment entered in the action.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of November, 1900, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 10th day of December, 1900, 'denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of October, 1900, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 30th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p> Amendment on the trial—a cause of action for negligence cannot be changed into one for an assaMlt. </p> <p>Where the complaint in an action against a street railroad company to recover damages for personal injuries, alleges that such injuries were caused “by reason of the carelessness, negligence and .neglect of the defendant, its servants or agents,” and upon the trial it appeared that the injuries were caused by the defendant’s conductor assaulting the plaintiff, the court has no power, under section 723 of the Code of Civil Procedure, to amend the complaint so as to make it conform to the facts proved, as such an amendment would effect an entire change in the scope of the action.</p>

Appeal by the plaintiff, John T. Farley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 11th day of December, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Hew York Trial Term dismissing the complaint upon the merits.

<p> Valse representations to the maker of a note—when not a defense to accommodation indorsers. </p> <p>In an action brought upon a promissory note, allegations that the note was given to the plaintiffs for a balance of account due to the plaintiffs from a bankrupt ' debtor, which was assigned to the maker of the note upon the representation and warranty of the plaintiffs that the account was a valid and subsisting claim against the bankrupt, and would be provable and allowable- as such in the bankruptcy proceedings, and that the referee in bankruptcy determined that the claim was not provable because the plaintiffs had received an illegal preference, do not constitute a defense to accommodation indorsers of the note who were not parties to the alleged contract.</p>

Appeal by the defendant, the Twenty-third Ward Bank of the City of Rew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 7th day of December, 1900, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, Virginia Wood, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of- November, 1900, upon the decision of the court rendered after a trial at the New York Special Term overruling said defendant’s demurrer to the complaint. .</p>

<p> Insurance—allegations that a fi/re occurred “ on or about” a day stated—proofs of loss in the case of a continuing fire, when filed in time. </p> <p>Where the complaint, in an action upon a policy of fire insurance providing that-proofs of loss should be served upon the defendant “ within sixty days after the fire,” alleges that the fire occurred “ on or about the 18th day of February, 1898,” arid “that the plaintiff duly1 fulfilled all the conditions of said insurance, and within sixty days after the fire—to wit, on or about the 20th day of April, 1898,” gave proof of the loss, the plaintiff may show that the fire continued for several days after February 18, 1898.</p> <p>Motion by the plaintiff, the National Wall Paper Company, for a. new trial upon a case containing exceptions, ordered to be heard at, the Appellate Division in the first instance upon the dismissal of the* complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the plaintiff, the Citizens’ Savings Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th ■day of October, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the plaintiff, William B. Steiner, as president of Washington Council, No. 19, Order of Chosen Friends, from an order of the Supreme 'Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of March, 1901, granting the defendant’s motion to inter-plead William J. Martin and Benjamin H. Reeve, as receivers of the Order of Chosen Friends, as defendants in the place and stead of the defendant, the East…

Appeal by the defendant, Barnet Rubenstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of November, 1900, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 20th day of November, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Ohemical National Bank, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 6th-day of October, 1900, upon the report of a referee. The action was brought to recover a balance of $3,800 of deposits which the plaintiffs had made and which the defendant claims to-have paid and settled.

<p> New York street cleaning department—the drivers are entitled to pay for work done in excess of eight hours a day. </p> <p>The Labor Law of 1870(Chap. 885), providing that “eighthours shall constitute a legal day’s work for all classes of mechanics, workingmen and laborers (employed by the State or any municipal corporation) except those engaged in farm and domestic labor,” applies to the street cleaning department of the city - of New York.</p> <p>A driver in that department is either a workingman or a laborer within the meaning of that statute.</p> <p>Where the commissioners of the street cleaning department in the city of New York, who by chapter 415 of the Laws of 1892 are authorized to “require any driver to work over time, in which event such driver shall be entitled to receive extra and additional compensation at the rate of twenty-five cents per hour for each hour of such over time,” deem it necessary for the proper administration of the department to require the drivers to work more than the statutory period of eight hours a day, and inform them that they will receive pay for such over time, and the drivers work the over time expecting to receive pay therefor, each of them is entitled to receive from the. city compensation for such over time, although the' commissioners knew at the time they ordered the men to work over time that there was no available appropriation from which to pay therefor, and although the contract of employment did not expressly provide for such payment.</p> <p>Yan Brunt, P. J., and Rumsey, J., dissented. .</p> <p>The effect of section 47 of the Consolidation Act (Laws of 1882, chap. 410), limit, ing the expenditures for any purpose to the amount appropriated for such purpose, was not. considered because it was not pleaded.</p>

Appeal by the defendant, William Park, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of January, 1901, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 28th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lily Cohen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of' the county of New York on the 26th day of January, 1901, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, James Brennan, Jr., by John W. Roche, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the plaintiff, Charles McSorley, as administrator, etc., of James McSorley, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of July, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p> <p>The action was brought to recover for injuries which resulted in the death of plaintiff’s intestate, James McSorley, who was struck by defendant’s south-bound passenger train on the afternoon of May 20, 1898, while driving a delivery wagon westerly along the highway and across the railroad tracks at Teaneck, N. J. .</p> <p>At the trial the plaintiff, who was the father of James McSorley, testified that the latter for seven years prior to his death had been employed by the firm of Lord & Taylor, first as a wagon boy and then as a driver and at the time of the accident was following a regular route through Teaneck. This was corroborated by the manager of Lord & Taylor, who testified that the deceased “ had been on this route where he was killed since 1895, about three years; he went over that route every day except Sunday; ” and, further, that he was of good health and habits — “a very reliable young man, attentive and alert in his business.” From the testimony of a co-employee who had frequently been with the plaintiff’s intestate in the delivery wagon, it appears that the route led west from Englewood through Teaneck to Hackensack over “ the main road between those two places,” both of which were large towns. As to the configuration of the ground and the conditions at the place of the accident, the witness testified that going westerly along the highway it was down grade approaching the track for a long distance so that it was necessary to use a brake, but at the track and to the west of it the ground was level; that the tracks ran north and south and the road east and west, and on the north side of the road approaching the "tracks from the east there was a growth of trees and also a growth of trees northward along the railroad; that any person not acquainted there would have to get pretty near the tracks to see them or to see a train approaching; that the day of the accident he “ went after the horse,” but the wagon was all smashed up.</p> <p>Neither this witness nor others were allowed to testify how much travel there was upon this highway, and though he testified that it was a regular dirt road, others were not allowed to state whether or not it was macadamized. Testimony was also excluded as to whether there were street lamps, whether there was a flagman; what was the condition of the wagon after the accident; where the pi aim tiff’s intestate was lying; and exceptions, were- duly taken by the plaintiff.</p> <p>Another employee of Lord & Taylor who had traveled several times a week over the road and who lived at Hackensack, N. J., testified that at the time of the accident the growth of trees on the north side of the highway extended to within twenty-five feet of the easterly rail of the middle track, there being in all three tracks at the crossing, the westerly or south-bound track, the middle, northbound, track and the easterly, which was a switch, track; that for the whole of a quarter of a mile going down towards the crossing one could not see the track north of the crossing; about 150 feet north of the crossing there was a freight house very close to the track and the station was about a quarter of. a mile north of the highway; that at only one point about 300 feet from' the crossing could the station be seen from the highway; that there was no gate at the crossing; that just above the depot to the north the track made a turn, but it was possibly straight for a quarter of a mile. An inhabitant of Teaneck also testified that the first tree north of the highway and east of the track was twenty or thirty feet away from the easterly up rail, and another witness who lived in Teaneck testified that the trees referred to extended back five hundred feet from the highway; that the latter had to his knowledge been open for travel for thirty years and “ from this point to Hackensack this is the principal road, the only way.”</p> <p>Testimony was given by passengers of the train to the effect that no bell was rung nor any whistle blown until the moment of the accident. Some testify that they did not hear any such, but others assert that they are positive that there was none. One passenger testified that the train when he boarded it at Newburgh, forty miles from Teaneck, was fifteen minutes late, which he ¡ascertained by comparing the time table with his watch. He stated that he had considerable experience in traveling, but was not allowed to say whether or not the train at the time of the accident was going faster than the ordinary rate. The plaintiff’s intestate, he said, was picked up from “ between the two tracks ” and put in the baggage car. It was further testified that the day was bright and clear and the accident happened early in the afternoon. Another passenger stated by deposition that from one side, of the train he saw the injured ■ man and the wagon and from the other “ saw a farmer leading a white horse down * * * and he seemed to be in good condition.” There was put in evidence the New Jersey statute providing for the recovery of damages in cases where the death of a person is caused by wrongful act, neglect or default and also the statute providing that a railroad company shall cause a bell to be rung or a steam whistle to be blown at least 300 yards from the place where such railroad crosses a turnpike, road or highway upon the same level and that such bell shall be kept ringing or such whistle shall ” continue to be blown until the engine has crossed the highway.</p> <p>At the close of the plaintiff’s case a motion was made to dismiss the complaint, which was granted, the court holding that “there is not enough to send the case, to the jury.” From the .judgment thereupon entered the plaintiff appeals. '</p>

<p>Appeal by the defendant, Isaac A. Hopper, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1900, granting a preliminary injunction.</p> <p>The complaint alleges the recovery by the plaintiffs of judgments against the Hoagland & Robinson Company, a domestic corporation; that executions have been issued upon said judgments, which executions are outstanding and unsatisfied; that theretofore, in two actions brought by the defendant Hopper against one Henry P. Robinson, the sheriff, under warrants of attachment issued in said actions, seized all the tangible property of said Hoagland & Robinson Company and attached various claims due to the said company; that under order of this court a part of said property so seized was sold, and that the sheriff threatens to pay over the proceeds thereof to the defendant Hopper under executions issued or to be issued upon. the judgments, recovered or to be recovered in said actions. The relief asked is that the rights of the plaintiffs with respect to the said moneys, chattels and accounts may be determined ; that the court ascertain the existence of any other liens upon said property; that it adjudge the' seizures by the defendant Hopper and the sheriff to be void as against the plaintiffs; that the defendants account for all the property held by them and the plaintiffs’ claims be paid out of said fund and moneys collected upon said accounts; that the defendants be meanwhile enjoined, from interfering with said fund, chattels and accounts, and that a receiver be appointed.</p> <p>Hpon the complaint and affidavits a motion was made and a preliminary injunction granted against the defendants, and from the order so entered this appeal is taken.</p>

Appeal by the relator, the Eden Musee Americain Company, Limited, from an order of the Supreme Court, made at the New York Special Term and entered in the. office of the clerk of the county of New York on the 26th day of November, 1900, quashing a writ of certiorari theretofore obtained by the relator.

Appeal by Leslie Pell-Clarke, as administrator with the will annexed of Walden Pell, 1st, deceased, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 2d day of July, 1900, denying his application.to declare the estate of Walden Pell, 1st, deceased, exempt from the payment' of , the transfer tax.

Appeal by the defendants, W. Bayard Cutting and another, as trustees under the last will and testament of Charles Kennedy Hamilton, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1901, continuing an injunction order dated the 3d day of December, 1900, and restraining the prosecution of proceedings instituted by said defendants in the Surrogate’s…

Appeal by the plaintiff, Mary James, as administratrix of Charles F. James, from so much of an order of the Supreme Court, made at the New. York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1901, opening the defendant’s default, as prescribed the terms and conditions upon, which the default in pleading should, be opened and permitted the defendant to serve an answer or demurrer.

<p>Assessment insurance — a refusal of the company to accept an amount due—the assured cannot recoverall that he bos'paid—his right to continue the policy or claim, damages — measure of damages.</p> <p>A member of an assessment insurance company, who refuses to pay an assessment levied by the company for an amount in excess of the sum which he contracted to pay in his certificate of membership and tenders to the company the amount which he did contract to pay, which tender the company rejects^ is not entitled to recover the amount paid by him to the company prior to the breach.</p> <p>Semble, that if the tender was sufficient the policy was still in force, and that the member could maintain an action in equity to establish its continued existence, or could maintain an action to recover damages for the breach of the contract and recover therein the cost of replacing the policy on the same terms in a sound company.</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the defendant, Joel B. Erhardt, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of January, 1901, as denied the said defendant the right to a discovery and inspection and permission to take copies of the two partial assignments of the alleged cause of action made by the Brussels Tapestry Company.

<p> Counterfeit labels—comiction of one who acts under the unauthorized direction of cm agent of the owner—when the allowance of a demurrer to an information is not a ba/r. </p> <p>Where'a person knowingly prints counterfeit labels, the fact that he does so at the request of a special agent of the owner of the label, who has no authority to cause genuine labels to be printed, from plates furnished by such agent, does not prevent his being convicted of the crime of knowingly and falsely making or counterfeiting a trade mark in violation of section 364 of the Penal Code.</p> <p>Assuming that section 327 of the Code of Criminal Procedure, relating to the effect of the allowance of a demurrer to an indictment, applies to an information in the Court of Special Sessions of the city of New York, the allowance of a demurrer to an information in that court on the ground that it does not charge an offense is not a bar to another prosecution for the same offense where the court, in sustaining the demurrer, granted leave to resubmit.</p> <p>Qumre, whether section 327 of the Code of Criminal Procedure does apply to an information.</p> <p>Van Brunt, P. J., and O’Brien, J., dissented.</p>

<p>Power of attorney to “grant” land executed by a husband and wife—it authorizes a transfer of the wifds inchoate dower right— appointment of a gua/rdiam, ad litem for an infant served by publication—bu/rden of proof that a title is unmarketable.</p> <p>Where a. wife joins with her husband in. executing a power of attorney, authorizing the attorney to sell and convey certain real property owned by the husband, and to “grant in our names good and sufficient deeds and leases therefor,” and the attorney, in pursuance of such power of attorney, executes in the name of the husband and his wife a conveyance of such real property .“ together with the appurtenances and all the estate and rights of the parties of the first part in and to said premises,” such conveyance is sufficient to transfer the inchoate dower interest of the wife, although the power of attorney .did not specifically mention such interest.</p> <p>An application for the appointment of a guardian ad litem for a non-resident infant defendant, made by the plaintiff after the infant has been served by publication, and the time to appear has expired, is governed by section 471 of the Code of Civil Procedure, and not by section 473 of that Code which requires that the order shall designate a person to be appointed guardian ad litem unless the infant or some one in his behalf procures a guardian to be appointed within a specified time after service of the order.</p> <p>Semble, that a purchaser at a foreclosure sale will not be relieved from his purchase upon showing that the execution of a quitclaim deed of the property executed by two grantors was defective as to one of the grantors, without showing that such grantor had some title to the property.</p>

Appeal by the plaintiff, Edward J. Green, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 21st day of January, 1901, upon the verdict of a jury, and also from an order entered in said clei-k’s office on the 21st day of January, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, the Magnolia Metal Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of March, 1901, denying the plaintiff’s motion to be relieved from a stipulation.</p>

<p>Appeal by the plaintiffs, Joseph W. Thompson and Charles H. Bellows, as copartners, doing business under the firm name and style of Thompson & Bellows, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of November, 1900, upon the decision of the court rendered after a trial at the New York Special Term sustaining a demurrer to the complaint.</p>

Appeal by the defendant, the Fifth Avenue Baptist Church of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York… Held: by the Fifth Avenue Church, upon the following trusts: “ I. During the continuance of its ownership of the said bonds to leave the same on deposit for safe keeping with the Farmers’ Loan & Trust Company of the City of New York. “ II.

Appeal by the plaintiff, the Johnstown Mining Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of March, 1900, denying the plaintiff’s motion to continue a preliminary injunction theretofore granted in the action, and also from an order made at the New York Special Term and entered in said clerk’s office on the 27th day of April, 1900, denying the plaintiff’s motion…

Appeal by the defendant, The Sterling Iron and -Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 7th day of April, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term, except from that part thereof which declares that the provision of said judgment in respect to the easement therein referred to is “ granted without prejudice to the…

<p>Set-off— what allegations constitute an equitable counterclaim—when the trial of the issues at the Trial Term will not be stayed until the issue raised by an equitable counterclaim can be tried at Special Term.</p> <p>The answer interposed in an action to recover damages for the breach of a contract for the sale of real property alleged that it was agreed between the parties that, if the title to the property was objectionable to the plaintiff, the money paid upon the contract at the time of its execution should be refunded and that thereupon such contract should become null and void; that such agreement, although made, was not incorporated in the written contract, and judgment was demanded that the contract be reformed so as to include the terms of the agreement omitted from the written instrument, and that, after such reformation, the agreement be delivered to the defendant for cancellation.</p> <p>Held, that the answer set up an equitable counterclaim, and that, under the provisions of section 974 of the Code of Civil Procedure, the defendant was entitled to have the issue raised by such counterclaim tried at the Special Term;</p> <p>That, as it appeared that the defendant, in the exercise of ordinary diligence, could have the issues presented by the counterclaim tried at the Special Term before the issues presented by the complaint could be reached for trial, the defendant was not entitled to a stay of the plaintiff’s proceedings at the Trial Term until the determination of the issues presented by the counterclaim.</p>

Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from an order of the Supreme Court, made' at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of November, 1900, granting the motion of W. H. H. Hull and K. Eugene Bunnell, who purchased the property involved in the suit after the commencement of the action, to be made parties plaintiff.

Appeal by the defendant, Joseph Wilhelm Gleitsmann, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of January, 1901, upon the decision ■ of the court, rendered after a trial at the New York Special Term, overruling said defendant’s demurrer to the complaint.

Appeal by the plaintiff, Barbara Schwind, as committee of the person and estate of Emma Schwind, an alleged incompetent person, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county Of Kings on the 9th day of July, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, R. Walter Bell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 12th day of March, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the Ith day of April, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Clarence A. Samson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of February, 1901, granting the petition of the receivers of the defendant Anglo-American Savings and Loan Association of New York for instructions respecting a proposal by the Empire State Realty Company to purchase certain perishable property for the benefit of shareholders of the association, and authorizing and directing the said receivers to accept such proposal.</p>

<p>Appeal by the plaintiff, Mae Y. Retling, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 28th day of January, 1901, vacating an injunction, and denying plaintiff’s motion for the appointment of a receiver.</p>

Appeal by the plaintiff, Michael H. Foy, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the l'2th day of November, 1900, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the defendant, Archer-Pancoast Company, from a judgment of the Municipal Court, of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 8th day of January, 1901, upon the decision of the court.

Appeal by the plaintiff, Albert W. Seaman, as trustee of the estate of Eliza Eagle, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 18th day of December, 1900, upon an order of the Supreme Court made at the Nassau Special Term on a motion for a new trial, and entered in the office of the clerk of the county of Nassau on the 18th day of December, 1900, which order dismissed the…

<p>Appeal by the defendant, the Metropolitan Life Insurance .Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 30th day of August, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of August, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the' defendant, Thomas Nelson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of November, 1899, upon the decision, of the court rendered after a trial at the Westchester Trial-Term, a jury having been waived.

Appeal by the defendant, John Wanamaker, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of October, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term overruling a demurrer to the complaint.

<p>A gift by will of “ the income of my said estate” gives the income from, the testator’s death — commissions in the capacity of executor and of trustee—waiver of commissions on income.</p> <p>A decedent, whose estate consisted chiefly of the capital 'invested by him in a copartnership, where it was drawing seven per cent interest at the time of his death, left a will by which he gave his entire estate to executors in trust to convert it into money and to invest the proceeds in certain specified securities.</p> <p>' He then directed that “ the income of my said estate ” should be paid to certain persons during their lives.</p> <p>Held, that the life beneficiaries were entitled to all the income accruing from the date of the testator’s death.</p> <p>In such a case the executors are entitled to commissions in that capacity and also as trustees. They are also entitled to commissions on the annual income; but, if they pay over the entire annual income to the life beneficiaries without making any deduction for commissions, they cannot deduct such commissions from the principal which passed to another set of beneficiaries.</p>

Appeal by the defendant, Max Gross, as marshal of the city of New York, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered on the 13th day of November, 1900, upon the verdict of a jury awarding to the plaintiff nossession of certain chattels, with damages for their detention.

Appeal by the defendant, Hoses Bard, from an order of a justice of the Hunicipal Court, city of ¡New York, borough of Brooklyn, entered in the office of the clerk of said court on the 3d day of December, 1900, setting aside the verdict of a jury rendered in favor of the defendant and granting a new trial.

<p>Appeal , by the defendant, Francis A. Fitzelle, from a judgment of the City Court of Yonkers in favor of the plaintiffs, entered in the office of the clerk of said court on the 12th day of May, 1900, upon .the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 15th day of 'March, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Ellen O’Brien, as administratrix, etc., oí Thomas H. O’Brien, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of Hay, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of June, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Appeal by the. defendants, A. Bleecker Banks and others, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of October, 1900, upon the verdict of a jury, and also from an order entered in said' clerk’s office on the 24th day of October, 1900,. denying the defendants’ motion for a new trial made upon the minutes.

<p>Change in a mtness’ testimony, on a second trial, from that giren on the first one — it presents a question for the jury.</p> <p>Where the Appellate Division reverses a judgment in favor of the plaintiff and orders a new trial upon the ground that upon the plaintiff’s own testimony a recovery was impossible, and upon the new trial the plaintiff changes his testimony so as to obviate the criticism of the Appellate Division, the question of his credibility is solely for the jury.</p>

Appeal by the defendant, The Nassau Brewing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of April, 1900, upon the verdict of a jury for $3,500, and also from an order, entered in said clerk’s office on the 16th day of April, 1900, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Motion for a new trial in furtherance of justice — it need not be made before the judge who tried the case — when it should be granted—that judgment has been entered and an appeal taken is not a ba/r.</p> <p>A motion to set aside a verdict and for a new trial, not founded on an allegation of error in a finding of fact or ruling of law made on the trial, but upon the ground that a new trial should be granted in furtherance of justice, need not. be made, under section 1003 of the Code of Civil Procedure, at a Special Term presided over by the justice who sat at the trial.</p> <p>Where the counsel for the defendant in an action on trial before the court and a jury, after exhausting his witnesses, requests an adjournment on the ground of the absence of four disinterested witnesses who had not been subpoenaed, but-who had promised to attend the trial at an hour’s notice and whose absence was due to the fact that the defendant’s counsel erroneously supposed that the trial would last as long as two previous trials of the case, and the court denies the application and compels the defendant’s counsel to present his case to the jury, who render a verdict in favor of the plaintiff, the Appellate Division, upon a consideration of all the circumstances, considered that the defendant’s motion for a new trial should be granted upon condition that the defendant pay to the . plaintiff the costs of the trial as taxed.</p> <p>The fact that judgment has been entered on a verdict and that an appeal from the judgment is pending, is not a bar to the motion.</p> <p>Goodrich, P. J.-, dissented.</p>

<p>Negligence—injury i(from falling through a floor made of cement which had, not yet . set—duty of one independent contractor to the employees of another independent contractor working on the same'building. ■</p> <p>Where several independent contractors are working on a. building, each of them owes to the employees of the other contractors a duty to exercise due care in performing his work if it might otherwise be a source of danger to such employees while lawfully engaged in their own work on the building.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, while in the employ of a person who had contracted to erect the brick work upon a building, it appeared that the defendant corporation was a contractor engaged in laying a floor in the building, and that its method of operation was to lay. down a false wooden floor, then a metal netting and then a layer of concrete or cement; that after a few days the cement would harden and the floor would become fit for use, and that the false floor could then be removed.</p> <p>The evidence tended to show that on the day of the accident the plaintiff found it necessary to go into the room in which the defendant was laying the floor in order to finish some work therein; that the door of the room was open; that there were no barricades nor danger signals present; that the floor was apparently finished, and that the plaintiff entered the room and fell through the floor. The accident was due to the fact that' a portion of the false floor had been prematurely removed before the cement floor had hardened and become ready for use.</p> <p>It was not affirmatively shown that the defendant’s employees removed the false floor, but it did appear that the defendant always removed the false floor as a detail of its work, and that in order to remove the false floor it was necessary to go into the room under that in which the permanent floor was being laid, and that the lower room was kept locked.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be sustained;</p> <p>That the jury might properly find that the defendant had removed the false floor; That as it did not appear that the plaintiff knew, or should have known, that a part of the false floor had been removed, it could not be said, as matter of law, that he was guilty of contributory negligence in attempting to cross the apparently completed permanent floor.</p>

Appeal by the defendant, the Van Wie New York Grocery Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of October, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Motion by Foster L. Backus, special guardian of George Behr, an infant, in reference to the alleged professional misconduct of • Felix Reifschneider, Jr., an attorney and counselor of the Supreme Court.

<p>Municipal Court of New York city—judgment that “the defendant is subject to arrest ” — entry by the clerk toifhat effect in the docket and issue of an execution against the person—neither can be compelled 'by mandamus.</p> <p>Section 1386 of the Consolidation Act (Laws of 1883, chap. 410), now applicable to the Municipal Court of the city of New York, which provides: “When, a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it must be so stated in the judgment and entered in the docket,” imposes upon the court a judicial duty to determine whether the defendant “is subject to arrest and imprisonment.” If the judgment, as entered, does not contain such an adjudication, the justice cannot be required by mandamus to insert it therein.</p> <p>Such an amendment of the-judgment is not within the purview of section 733 of the Code of Civil Procedure.</p> <p>In such a case the clerk of the court cannot be compelled to make an entry in the docket of the judgment to the effect that the defendant is subject to arrest and imprisonment, or to issue an execution against the defendant’s person, under section 1405 of the Consolidation Act.</p>

Appeal by the plaintiff, Emily Sickles, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 4th day of May, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order, entered in said clerk’s office on the 1st day of June, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Partnership for the production of operas—dissolved by the court if the business be impracticable— what allegations to that effect are vat demurrable.</p> <p>A court of equity may dissolve a partnership if it be shown that the business is impracticable Or that it cannot be carried on save with loss.</p> <p>The complaint in an action to dissolve a partnership alleged that the plaintiff and the defendant entered into the partnership for a term of five' years to conduct the business of “making productions of operas, extravaganzas and for general amusement purposes.’1 The plaintiff, who agreed to furnish the necessary capital, was to be business manager and the defendant to be 'stage manager and director, his duties “ including the employment and discharge of the actors and the productions, and everything connected therewith, including the engagement and discharge of the musical director.” The complaint further alleged that immediately after the articles of copartnership were executed the plaintiff attempted to obtain engagements, but could not. obtain “ any sufficient places to promise a remuneration for the outlay.” He further alleged that while he was making such efforts the defendant, who was then engaged in similar business to that contemplated by the partnership, abandoned his company of singers without paying them and “became of such ill-repute in the business that a successful execution of the contract under him is hopeless for that reason alone.”</p> <p>Held, that the complaint was not demurrable;</p> <p>That it did not allege that the “ ill-repute ” of the defendant was the sole reason why the undertaking was hopeless, but also charged that the business was impracticable, - because the. plaintiff could find no field for exploiting the enterprise.</p> <p>Semble, that the allegation that the defendant’s “ill-repute” with the dramatic profession rendered the undertaking hopeless was an allegation of fact and not a mere conclusion.</p>

Appeal by the defendant, The American Wringer Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the llth day of October, 1900, upon the decision of the court'' rendered after a trial at the Kings County Special Term, overruling a demurrer to the complaint.

Appeal by the defendant, Josephine N. Oowperthwait, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester ■ on the 5th day of January, 1901, upon the decision of the court, rendered after a trial at the Westchester Special Term,, overruling a demurrer to the complaint.

Appeal by the claimant, James Y. Lawrence, from so much of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of West-Chester on the 20th day of October, 1900, as overruled exceptions taken, by him to a referee’s report, and directed payment by the county treasurer of Westchester county to the claimant William P. Fiero of the sum of $507.21, with interest.

Appeal by the plaintiff, 0. Albert Jacob, doing business as Jacob Brothers, from a judgment of the Municipal Court, city of Mew York, borough of Brooklyn, in favor of the defendant, rendered on •the 16th day of January, 1901. •

Appeal by the defendant, the Press Publishing Company,, from a. judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Kings on the 15th day of May, 1900, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 15th day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Yew York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Queens on the 21st day of February, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of March, 1900, denying the defendant’s motion for a new trial maáe upon the minutes.

Motion by the defendant, Fanny McKane, for a new trial upon, a case containing exceptions, ordered to be heard at the Appellate Division in the first instance after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Henry G. Strnbbe, from a judgment of the Supreme Court in favor of the defendant, The Kings County Trust Company, Guardian, etc., entered in the office of the clerk of the county of Kings on the 24th day of October, 1900, upon the decision of the court rendered after a trial at the Kings' County Special Term sustaining the said defendant’s demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

<p>Appeal by the defendant, Hugh Green, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, rendered on the 18th day of May, 1900.</p>

Appeal by the .plaintiff, Stark H. Inge, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of November, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the defendant, John Caulfield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of October, 1900, upon the verdict of a jury for $1,500, and also from orders entered in said clerk’s office on the 22d and 25th days of October, 1900, denying the defendant’s motions for a new trial made upon the minutes. • ■ •

Appeal by the plaintiff, Charles W. Trotter, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 2d day of April, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the defendant, James E. Brodhead, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 19th day of May, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Suffolk Trial Term.

Appeal by the plaintiffs, Maximilian Lewinson and another, from a judgment of the Supreme Court in favor of the defendants, The Montauk Theatre Company and William H. Reynolds, entered in the office of the clerk of the county of Kings on the 16th day of August, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint as to such defendants.

Motion by the plaintiff, Valentine Witkowski, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint after a trial at the Erie Trial Term.

Action Yo. 1. Appeal by the defendant, George H. McOhesney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 11th day of December, 1900, upon the decision of the court rendered after a trial at the Oneida Special Term pursuant to stipulation. ' The plaintiff is a canal boatman and the owner of two canal boats called the John Mahwr and the Craig & Crouch.

<p> Election of a commissioner of public works in the city of Buffalo—when it takes place where a vacancy exists—a general election as compared with a municipal election, considered. </p> <p>Section 5 of article 10 of the Constitution of the State of New York, providing that “The Legislature shall provide for filling vacancies in office, and in case of elective officers no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy,” applies only to offices created or provided for by the Constitution, and does not apply to an office created by the Legislature such as the elected commissioner of public works of the city of Buffalo, N. Y.</p> <p>Section 8 of article 12 of the Constitution of the State of New York, which provides: “All elections of city officers, including supervisors and judicial officers of inferior local courts, elected in any city, * * * except to fill vacancies, shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year,” neither enlarges nor restricts the right of the Legislature under section 5 of article 10 to determine the time for filling vacancies in municipal offices.</p> <p>The fact that a vacancy in a public office in the city of Buffalo, which is both constitutional and municipal in its character, may be filled at a general election held in an even-numbered year, does not transform the general election into a municipal election, which by section 370 of the charter (Laws of 1891, chap. 105, as amd. by Laws of 1895, chap. 805) is to be held in each odd-numbered year.</p> <p>Although section 1 of chapter 805 of the. Laws of 1895, amending the city charter, speaks of a “municipal election” as an “annual election,” it is clearly distinguishable from a “ general election.”</p>

<p>Appeal by Joseph Gr. Swales, as administrator, etc., of William H. Swales, deceased, from a decree of the Surrogate’s Court of the Bounty of Wayne, entered in said Surrogate’s Court on the 17th day ■of September, 1900, adjudging,</p> <p>“ First. That the petitioner, Mary E. Swales, known as Mary E. Trowbridge, and said decedent, William H. Swales, in this State, continued to be man and wife from the time of their marriage until the death of said decedent; that she is now the widow of said William H. Swales, and as such widow is entitled to administer the estate of said William H. Swales, deceased.</p> <p>“ Second. That the letters of administration issued and granted to said Joseph Gr. Swales be, and the. same hereby are, revoked, and said Joseph Gr. Swales is directed and required to render and file an account of his proceedings as such administrator of the estate of said decedent, within twenty days after the service of a copy of this decree upon him or his attorneys herein.</p> <p>“ Third. That letters of administration upon the estate of said William H. Swales, deceased, be issued and granted unto said petitioner.”</p>

Appeal by the plaintiff, James O’Horo, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 24th day of October, 1899, upon the verdict of a jury, and also from an order bearing date the 2d day of October, 1899, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.