Volume 61 — New York Appellate Division Reports

Appeal by the plaintiffs, Joseph H. Drake and others, and by the defendants Sila Campney and others, from a judgment of the Supreme Court in favor of the defendants Alonzo T. Drake and others, entered in the office of the clerk of the county of Jefferson on the 17th day of October, 1900, upon the dismissal of the complaint as to the said Alonzo T. Drake and others after a trial at the Jefferson Trial Term.

Appeal by the defendant, the Rochester 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 Monroe on the 10th day of July, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 13th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Highway —fa/ilure to use it — the statute applies to all highways—.evidence of abandonment for the jury.</p> <p>Section 3 of chapter 311 of the Laws of 1861, amending the Revised Statutes relating to the effect of a failure to use a highway for six years, which provides “ The provisions of this act shall apply to every public highway and private road laid out and dedicated to the use of the public within the last six years, and to every such highway hereafter to be laid out,” does not limit the effect of the act to such highways as were laid out within six years prior to the. passage of the act and those laid out subsequent thereto, hut the act applies to a highway laid out in 1800.</p> <p>What evidence in relation to the abandonment or non-user of an alleged highway for a period of six consecutive years presents, a question for the jury.</p>

Appeal by the plaintiff, Henry J. Rosche, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 31st day of January, 1901, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the complaint.

<p>Corporation —stockholders and trustees personally liable to 'its creditors may be made parties to an action to set aside a fraudulent conveyance by it and to sequestrate its property — what creditors may enforce liability for filing a false certificate — what averment of such liability is sufficient.</p> <p>Stockholders and trustees of a corporation may, if a personal liability is claimed to exist against them, be made parties to an action by a judgment creditor of the corporation to sequestrate its property.</p> <p>A judgment creditor of a corporation, organized under chapter 40 of the Laws of 1848, who brings an action to set aside as fraudulent a trust deed executed by the corporation and judgments obtained against it, and to sequestrate property of the'corporation and have it appropriated to the payment of its debts, may, under section 1790 of the Code of Civil Procedure, enforce in the same action the liability of the shareholders of the corporation- arising out of their failure to pay for the capital stock subscribed for by them, and to enforce the personal liability of the trustees for filing a false certificate to the effect that the capital stock was all paid in.</p> <p>Section 15 of chapter 40 of the Laws of 1848, making officers of a corporation, who knowingly sign a false certificate or report, “ jointly and severally liable for all the debts of the company contracted while they are stockholders or officers thereof,"-is not available to creditors whose debts were incurred before the making of the certificate or report, and who, consequently, did not rely upon the credit thereof.</p> <p>An allegation in the complaint in an action to enforce the liability imposed by that section, which alleges “ That by force of the statute under which said Fonda Lake & Port Leyden Paper Company was incorporated, all of the said trustees signing such false certificate became jointly and severally liable for all the debts of the said company, contracted while they were stockholders or officers thereof, and the indebtedness for which plaintiff’s judgments were received was incurred while said defendants were trustees and stockholders,” is sufficient to authorize proof that the indebtedness to the plaintiff was incurred subsequent to the making of the alleged false certificate.</p>

<p> Complaint —form of in an action to establish a lost codicil. </p> <p>The complaint in an action brought under sections 1861-1867 of the Code of Civil Procedure to establish a lost codicil alleged to contain the following provisions: “I give and bequeath to my friend and former servant, Mary C. Donlon (the plaintiff), unless I shall have settled such sum on her in my lifetime, one hundred thousand dollars,” need not show affirmatively that the sum bequeathed was not settled upon the plaintiff during the life of the testator; the fact that upon'the face .of the codicil the plaintiff has a probable interest in its establishment, is sufficient to entitle her to maintain the action.</p> <p>Such .a complaint need not negative subdivision 1 of section 1861 of the Code of Civil Procedure which provides that the codicil in question must have been lost or destroyed “ before it was duly proved and recorded within the State.”</p>

Appeal by the defendant, the Lehigh Valley Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 4th day of December, 1900, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling said defendant’s demurrer to the plaintiffs’ complaint.

<p>Negligent me of an automobile — injury to a horse frightened thereby—, reversal of the Municipal Court of Rochester on a question of fact.</p> <p>In an action brought in the Municipal Court of the city of Rochester to recover damages for injury to a horse, wagon and harness belonging to the plaintiffs, resulting from the fact that the horse became frightened at the approach off an automobile owned by the defendant’s testator, there was evidence that the automobile was of somewhat crude and unusual construction and was propelled by steam generated by a gasoline burner; that it gave forth a loud puffing noise and could be heard ■ for two blocks and that the odor was pronounced; that steam or smoke issued from the exhaust and that teams had been tightened by it; that at the time of the accident it was passing the plaintiffs’ horse, at a speed of ten or twelve miles an hour and did not moderate its speed until the horse became frightened.</p> <p>The Municipal Court rendered a judgment in favor of the plaintiffs, but this judgment was reversed by the County Court as being against the weight of evidence.</p> <p>Held, that- there was some evidence justifying the conclusion of the Municipal Court, and that as the judgment of reversal was rendered prior to the amendment of section 3063 of the Code of Civil Procedure, the County Court had no v power to reverse the judgment of the Municipal Court as against the weight of evidence.</p>

Appeal by the defendant, The City of Geneva, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 5th day of November, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 2d day of November, 1900, denying the defendant’s motion for a new trial made upon the ■ minutes.

Appeal by the defendant, the Lehigh Valley Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of Ontario on the 20th day of December, 1900, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 22d day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Jonathan Sternberg, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 13th day of November, 1900, upon the verdict of a jury for $500 damages, and also from an order entered in said clerk’s office on the 14th day of November, 1900, denying said defendant’s motion for. a new trial made upon the minutes.</p>

Appeal by the plaintiff, Calvin L. Stowell, and by the defendant, The Manufacturers and Merchants’ Insurance Company of Pittsburgh, Pennsylvania, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the Yth day of November, 1900, upon 'the verdict of a jury for $469.98, rendered by direction of the court after the jury had passed upon the question of damages.

Appeal by the defendant, Edward H. Walworth, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 18th day of May, 1900, striking out a portion of said defendant’s answer as sham or frivolous and giving judgment for the plaintiff thereon.

Appeal by the defendants, Walter Cary 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 Erie on the 25th day of October, 1900, upon the decision of the court rendered after a trial at the Erie Special Term.

■ Appeal by the defendant^ The Board of Trustees of the Tillage of Albion, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Orleans on the 9th day of November, 1900, directing the issuance of- a peremptory writ of mandamus requiring the said board of trustees to forthwith remove Daniel Sweeney from the position of janitor of the village building and to reinstate and reappoint- the relator to-said…

Appeal by the defendant, Richard J. Manaban, from a judgment of the County Court of Oneida county in favor of the plaintiff, rendered on the 10th day of May, 1900, convicting him of the crime of felony for a willful injury to a feeder of the Black Elver canal, with notice of intention to bring up for review on such appeal an order denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Anna Corning, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 28th day of November, 1900, upon the decision of the court rendered after a trial at the Monroe Special Term, certain issues having been submitted to a jury, and also from two orders made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 6th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to obtain a mandatory injunction requiring defendant to abate a nuisance consisting of obstructions placed by them in a natural watercourse causing the overflow of plaintiff’s lands, and permanently restraining them from obstructing such watercourse as it existed prior to the year 1895, and for damages to plaintiff’s crops caused by such overflow. The issues were brought to trial at a Special Term on the 5th day of April, 1900, and at the close of the evidence relating to the existence and history of the watercourse, the court, at the request of counsel, framed certain issues of fact for submission to a jury. The issues so framed were tried at a Trial Term commencing on the 4th day of May, 1900. The questions, together with the determination of the jury thereon, were as follows:</p> <p>“ Did the defendants or either of them obstruct the creek or ditch mentioned in the plaintiff’s complaint ? Answer: Tes.</p> <p>“Second. If either of the defendants did obstruct the creek or ditch, which one obstructed it? Answer: Both.</p> <p>“ Third. When were the several obstructions, if any, made, and by which defendant respectively were they made ? Answer: Miss Anna Corning, in the years 1895-96-97 and ’98. F. T. Peart assisted in 1897.</p> <p>“ Fowrih. Did the defendants or either of them obstruct the stream more than was necessary to place back into the creek or ditch what had been excavated in the year 1895, and if ¡so, which one? Answer: Tes, both. Anna Corning in the years 1895-96-97-98: F. T. Peart assisted in 1897.</p> <p>“ Fifth. Was the plaintiff damaged in consequence of said obstructions?' AnswerTes.</p> <p>“Sixth. How much were the damages caused by the defendant Anna Corning? Answer: ($500:00.) Five hundred dollars.</p> <p>“ Seventh. How much were the damages Caused by the defendant Frank T. Peart ?. Answer: ($1.00;) One dollar.</p> <p>“Eighth. If the plaintiff was damaged, state the nature of the crops damaged ? Answer: Potatoes, carrots, onions, wheat, corn, oats, buckwheat and grass. . •</p> <p>“Ninth. Did the plaintiff go upon defendant’s; property and excavate the rock in said stream without the consent of Anna Corning? Answer: No.”</p> <p>. ‘Thereupon defendant’s counsel made a motion for a ■ new trial upon the minutes of the court, upon all the grounds specified in section 999 of the Code of Civil Procedure, at said Trial Term. The motion was denied, but without prejudice to renew the same at Special Term, where it was reviewed and denied. The hearing before the Special Term was thereupon resumed and a decision containing findings of fact and conclusions of law was made and filed. The decision followed the findings of the jury upon the questions submitted to them. The court also found that plaintiff was, and since.the 28th day of March, 1888, had been, the owner in fee and possession of the premises described in the complaint consisting of thirty-nine acres and thirty-four and a half rods of land in the town of Penfield, county of Monroe; that defendant Corning, on or about-the 24th day of January, 1893, became the owner of the premises in said town consisting of thirty-two and three-fourths acres situate next westerly of and adjoining plaintiff’s said premisesthat on April ls 1893, defendant Corning entered into a land contract by which she agreed to sell and convey said premises to defendant Peart, who Thereupon went into possession pursuant to said contract and remained in possession until April 1, 1900, at which time ■ he removed therefrom; that “ there is and has been for a great many years a natural stream of water flowing through the plaintiff’s said property onto and through defendant’s said property, with well-defined bed and banks, and the channel to said stream, as it flows through defendant’s property, was and has been for over twenty years from 2£ to 3-¡- feet wide and to 3-¡- feet deep; ” that, “ for more than twenty years, said channel was of sufficient width and depth to carry the water off from plaintiff’s low land, and sufficiently drained the same so as to enable the plaintiff to till and crop said low land; ” that the defendant, by wrongfully and unlawfully damming and filling up and .obstructing the stream, as found by the jury, caused the water to overflow plaintiff’s premises to his damage - in the sum of $500 by the acts of defendant Corning, and to his damage in the sum of one dollar by the acts of defendant Peart; that in the year 1895 plaintiff deepened said stream by excavating rock from the bottom of the channel on the said premises of defendant Corning, by her paroi consent and license, which she subsequently revoked, and she thereafter built a dam across the stream and obstructed the same more than was necessary to restore the stream to the condition in which it was before such excavation of rock. In the conclusions of law the court awarded a mandatory and permanent restraining injunction, as- prayed for, and damages in accordance with the verdict of the jury.</p> <p>Plaintiff gave evidence tending to show, and which would have justified findings, that this creek or stream drained a watershed comprising from 1,000 to 1,600 acres of land; that the natural slope of the ground was toward defendant’s premises ; that with the bed or channel of the creek through defendant’s premises dammed up level with the surface of the banks, the surplus water from this watershed would flow over defendant’s premises along the line of this stream, where there was a slight depression, making a natural outlet for this watershed; that for more than fifty years there has been a natural watercourse, with well-defined banks, through the premises of both plaintiff and defendant, which drained this watershed and was a running stream some years throughout the season, but drying up through the premises of plaintiff and defendant for one, two or three months most seasons; that such stream was supplied by several large living springs situate more than a mile above plaintiff’s premises, one of which was never known to dry up or freeze, but the others ceased to flow in very dry seasons, and by rain and the melting of snow, and also by the water from a small tract of this watershed consisting of low, marshy, muck lands, known as a.. tamarack swamp, from which the water does not flow.readily; that prior to forty-two or forty-three years ago, and before anything had been done, toward artificial drainage or to interfere with the natural com dition of the. locus w, quo, these springs ran into this marshy muck ground, through which the waters found their way over the surface irregularly, and in no defined channel for along distance; then reaching harder soil, the flowing water came together and formed a natural, channel which extended through plaintiff’s lands and those of defendant also ; that after leaving plaintiff’s lands and passing a few. hundred feet through defendant’s premises the bed of the stream, descended considerably and quite abruptly so that there was a fall, of more than ten feet in. eight hundred; that in those early days,, more than fifty years ago, a saw mill was erected from about a half to three-quarters of a mile below defendant’s premises, which for.along period was run by water power from three to five months each year, -principally supplied by the watér that came through this-stream, which ultimately,- by natural watercourse, reached Lake. Ontario; that in this vicinity there is a rock bottom, and on defendant’s premises the rock comes within about a foot of the surface of', the ground, but it is in layers and is lower than the surface of plaintiff’s premises; that about forty-two or forty-three years ago the owners of the lowlands of this watershed, including the then owner of defendant’s premises, for their mutual benefit and to enable them to clear, improve and till their respective premises, agreed upon a-plan of cleaning out, deepening and straightening the channel of this natural watercourse from the springs referred to, to and through, defendant’s premises, a distance of more than a mile, which plan was. carried into execution by them; that the- witnesses who participated in or observed such cleaning out, deepening and straightening,' say nothing was done at that time along the line of this slight-natural depression in defendant’s premises where ■ .the bed of the: stream was, except to remove the loose stone and. earth, but other witnesses, from subsequent appearances, say that the surface rock was likely cracked, loose and broken and was removed with pickaxes or crowbars, thereby enabling the water to pass off more, readily and in a certain sense deepening the channel, and others say that the: rock had the .appearance of having been blasted out; that after the-.doing of this work forty-two or forty-three years ago the creek through plaintiff’s premises was from three and a half to four feet wide and about the same depth, and it was about the same width, but a foot or so less in depth through defendant’s premises; that ordinarily in the spring and fall the water flowing through this creek was between two and two and a half feet deep; that thereafter said channel remained in precisely the same condition, excepting as it was affected by the natural flow of water, until 1895, when plaintiff and others undertook, as stated in the findings, to deepen the channel by blasting rock from the bed of the stream; that lateral ditches emptying into this creek had been constructed upon either side, so that tho lands drained more readily and rapidly into the bed of this stream. The evidence fairly warranted the findings that plaintiff’s crops were damaged to the extent found by the jury, and that such ' damage was caused by the obstructions placed in the bed of this stream. It appeared that ever since plaintiff owned the premises, a period of thirty-three years, he has tilled and cultivated the same lands without any previous loss or damage from the overflowing of water, and the surface of such lands was above the bed of the stream through defendant’s premises, as it existed before being so obstructed.</p>

<p>Appeal by the plaintiff, Irving O. Barker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 10th day of August, 1900, upon the decision of the court, rendered after a trial before the court without a jury at the Oneida Trial Term, dismissing, the complaint upon the merits.</p>

<p>Appeal by the defendant, Frank S. Wood, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 13th day of February, 1901, denying the defendant’s motion for an order of reference, and granting the plaintiff’s motion for temporary alimony and counsel fees, and awarding the custody of the defendant’s child by a former marriage to its grandfather.</p>

Appeal by the plaintiff, James A. Wilson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Livingston on the 4th day of J une, 1900, upon the decision of the court rendered after a trial before the court without a jury at the Livingston Trial Term.

Appeal hy the defendant, George Southaclc, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1901, denying said defendant’s motion to resettle an order theretofore granted in the action.

<p>Appeal by the defendant, The Department of Health of the City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, bearing date the 25th day of October, 1900, and entered in the office of the clerk of the county of New York, overruling a demurrer to the complaint and granting a permanent injunction restraining the defendant from enforcing against the plaintiff any of the provisions of the act of the Legislature of the State of New York entitled “ An Act to amend section 1212 of chapter 378 of the laws of 1897, known as the Greater New York charter in relation to offensive trades in the borough of Brooklyn.”</p> <p>The subject-matter of this appeal is the constitutionality of an act of the Legislature of the State of New York which was passed without the acceptance of the city, but became a law April 25, 1900, with the approval of the Governor. (Laws of 1900, chap. 663.) The act amended section 1212 of the Greater New York charter, and was to take effect immediately. That section now reads as follows:</p> <p>“ § 1212. Offensive trades.— It shall not be lawful for any person or persons, incorporated or unincorporated, or any corporation or corporations, to carry on, establish, prosecute or cpntinue, within the borough of Manhattan, the occupation or trade or bush ness of bone boiling, bone burning, bone grinding, horse skinning, cow skinning, or the skinning of dead animals, or the boiling of offal; and it shall not be lawful for any person or persons, incorporated or unincorporated, or any corporation or corporations, to carry on, establish, prosecute or continue within the borough of Brooklyn the occupation or trade or business of rendering or treating with. ■steam or boiling garbage, swill or offal; and any such establishment or establishments or place of such business existing within the said boroughs respectively shall be! forthwith removed out of said boroughs, and such trade, occupation or business shall be forthwith abated and discontinued, provided that nothing in this section contained shall apply to the slaughtering or dressing of animals for sale in said city. It shall be the duty of the board of health to ascertain whether any such trade or business is carried on, or continued or established, within the limits aforesaid, and to make and cause an order to be served in the same manner as other orders of said department are made and served, directing the discontinuance of such' trade or business, and the removal of all offensive or unwholesome materials or things appertaining to such trade or business. Any business hereby prohibited in any borough, if carried on in other boroughs within the city of New York shall be subject therein to reasonable regulations to be prescribed by the board of health, and may, upon its recommendation, be prohibited in any borough or part of any borough by the municipal assembly; but the board of health may, upon application, extend the time of discontinuing the business of rendering or treating with steam or boiling garbage, swill or offal, in the borough of Brooklyn for a period of not exceeding twelve months from and after the passage of this act.”</p> <p>The plaintiff, a corporation organized under the laws of the State of New Jersey, brought this action to restrain the department of health of the city of New York from taking any steps to enforce against it the provisions of the section of the amendment to the charter above quoted, and in its complaint it alleges that, on the 6th of Juné, 1896, it entered into a contract with the then corporation of the city of New York whereby it agreed, among other things, to receive at certain places in the then city of New York, all garbage and kindred refuse collected and delivered by carts of the health department and by private carts authorized to collect such material and to finally dispose of the same in such manner as to render it unobjectionable in any and every respect; that thereafter it began the erection of a plant for the disposal of such material upon Barren Island, which said island was situated in Jamaica bay, in the borough of Brooklyn, in the present city of New York; that .such plant was completed on or about January' 1, 1897; that prior to the completion of the said plant, the then city of Brooklyn had awarded contracts of a similar character to certain persons in that city, and that those persons subsequently made arrangements with the plaintiff to receive garbage and kindred refuse of the city of Brooklyn and to convey the same to Barren Island, there to be disposed of on practically the same terms and conditions as are imposed by the contract between the plaintiff and the city of New York, continuing for a period of five years from the 1st of January, 1897, that on January 1, 1897, the plaintiff began the performance of the requirements of those contracts and has received and conveyed from both cities of New York and Brooklyn all garbage and kindred refuse to its plant on Barren Island and has there disposed of the same in accordance with the terms and conditions of the contracts and has continued so tó do ; that the location of this plant on Barren Island was not chosen by the plaintiff, but by the then commissioner of street cleaning of the city of New York, and that Barren Island was selected for the location of the plant as the most appropriate place, and that the contract was awarded to the jfiaintiff upon condition that it would secure property upon Barren Island upon which it could erect and maintain its plant; that that island is far distant from any residential districts or inhabited portions of the city of Greater New York, or of any city or village, being three miles distant from the nearest village, namely, Hammel’s Station; that the population of Barren Island is made up almost entirely of employees of the plaintiff and of two other factories engaged in the rendering of dead animals collected from the present city of New York, as at present constituted, and of one factory engaged in the manufacture of fertilizer; that the process used by the plaintiff in the disposition of garbage is known as the Arnold utilization system, said process being treating by steam at high pressure of the garbage in sealed tanks ; the destruction of the gases arising from said process by condensation ; the pressing of said material after sterilization in the above manner, and the reclaiming of a certain portion of the residue divided into two products — crude grease and fertilizer; that prior to the letting of the contract by the city of New York the question of the disposition of the wastes of the said city had become a serious problem to the city authorities, and that in or about the year 1894 the then mayor of the city of New York appointed a commission of expert persons to consider and report upon some other system of disposition than the one then in use, namely, towing and dumping of the combined wastes at sea, which said method resulted in the pollution of the seacoast of Long Island on'the one side, and New Jersey on the other, as far as Atlantic City; that such commission, after examining over seventy systems, unanimously reported that garbage should.be destroyed by the process now in use and operated by the plaintiff, and that under subsequent administrations of the city of New York and after investigation for over a year by the then commissioner of street cleaning and his engineers of all the known methods of disposing of garbage and refuse, the system operated by the plaintiff was accepted ; that such system is in operation in other cities of the United States; that the plaintiff is carrying on its business and operating its plant without creating a nuisance and in a manner in no way prejudicial to the comfort of the inhabitants and entirely to the satisfaction of the commissioner of street cleaning of the city of New York, the board of health of the city of New York and the Board of Health of the State of New York, under the jurisdiction of which latter board Barren Island is placed; that the business is carried on as aforesaid without creating any nuisance and without affording any injury to any locality or individual; that the plant erected by the plaintiff on Barren Island has cost the plaintiff between $500,000 and $600,000 and that it could not be operated or used by the plaintiff if said act should be declared to be constitutional and operative; that Barren Island is the only place or locality in or near the city of New York for the destruction of garbage or dead animals in the city and is the only proper place for the rendering of the same; that to remove said plant to any other location would cost nearly or quite as much as the original construction thereof. It also appears by schedules annexed to the complaint' that one of the terms of the contract between the city of New York and the plaintiff secures to the city of New York the right of purchasing the plant at the expiration of the contract or at any time within three months thereafter either at an agreed price or a price fixed upon an appraisal of three disinterested parties; that the board of health, although application has been made to it by the commissioner of street cleaning of the city of New York, has not extended the time of the contract between the plaintiff and said city ; that by the amendment to the Greater New York charter above quoted, it is made a mandatory duty on the part of the board of health to ascertain whether the trade or business now carried on by the plaintiff in the manner above referred to is so carried on or is established within the borough of Brooklyn, and thereupon to cause the removal of the same out of said borough, and that the department of health intended and proposes to enforce the provisions of the act in accordance with the requirements thereof, as against the business and property of the plaintiff, and that plaintiff is apprehensive and'verily believes that there is imminent danger that said department of health will so enforce the provisions of said act as against its business and property, unless restrained therefrom by the order of the court, and that such action would result in irreparable injury to the plaintiff, which could not be compensated by money damages; that a considerable period of time will be necessary to the erection and putting in operation of any plant or plants proper for the disposal of the refuse of the city of New York, whether the same be in a separated or unseparated condition; that the amount of garbage disposed of by the plants of the plaintiff at Barren Island from the boroughs of Manhattan and Brooklyn, under its contracts, averages 900 tons per day throughout the year, and that during the summer months the amount of said garbage per day will approximate 1,500 tons, which said material must be disposed of daily, and that the rules and regulations' of the War Department of the United States, under the jurisdiction of which said department the harbor of New York is placed, forbid the conveying of said garbage through said harbor for the purpose of dumping the same in the waters adjacent to said harbor, and that it would be impossible to remove said garbage from the. water front of the boroughs of Manhattan and Brooklyn for said purpose, or to dispose of the same in any other manner than the one now in use “ during the approaching summer.”</p>

Appeal by the relators, Hermann H. Cammann and another, as executors and trustees under the last will and testament of Margaretta H. Ward, 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 20th day of February, 1901, dismissing a writ of certiorari theretofore entered in the proceedings and affirming an assessment against the relators in their representative capacity, and…

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on • the 16th day of February, 1901, denying the defendant’s motion to quash a writ of certiorari and directing a reference of the issues raised by the petition and the return thereto.

<p> A contract to procure legislative action is illegal. </p> <p>The general rule is that any contract which has for its object the procuring of legislative action is void as against public policy.</p> <p>A salesman and a firm of stock brokers entered into a contract by which the salesman undertook to procure the passage of a resolution which would result in a congressional investigation of the affairs of a corporation, of the methods of business of which he had acquired certain knowledge, the purpose of such investigation not being to secure the passage of remedial legislation, but to cause a depreciation in the value of the securities of the corporation, in consideration of which the brokers agreed to sell for the salesman and his associates a number of shares of the stock’of the company with the understanding that if the salesman’s efforts resulted in a decline in the price of the stock, the brokers would cover their short sales upon the decline and share the profits with the salesman and his associates. .</p> <p>Held, that the contract was illegal, and that the salesman could not maintain an action against the brokers to compel them to account for the profits made by them in the enterprise.</p>

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of October, 1900, vacating an assessment on the property of the relator.

<p>Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 17th day of April, 1900, upon the verdict of "a jury for $5,000, and also from an order bearing date the 12th day of April, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This appeal was transferred from the second department to the first department.</p>

<p>Appeal by the defendants, Samuel Simon, Jr., and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of April, 1899, denying the said defendants’ motion for a new trial made upon the mimites.</p>

Appeal by the defendant, the Press Publishing 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, 1901, denying defendant’s motion for leave to serve a supplemental answer.

Appeal by the petitioner, Thomas F. Murphy, 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 June, 1900, denying the petitioner’s motion for a peremptory writ of mandamus.

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

Appeal by Theodore G. English, as trustee, substituted for Isaac H- Williamson, as trustee, etc., of Benjamin Williamson, 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 25th day of February, 1901, appointing a referee to take proof and report the compensation to be allowed the petitioners in proceedings to enforce an attorney’s lien.

Appeal 'by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments of the city óf New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1901, denying a motion to quash a writ of certiorari to review the action of the tax commissioners in assessing for the purposes of taxation for the year-1899 certain real estate belonging to…

<p>Admissions, construed in view of the circumstances — competency of testimony as to personal transactions with a decedent—what communication to a managing clerk is not confidential.</p> <p>Admissions contained in an executor’s account and in the-answer interposed by him in an action brought against him are to be taken in their, entirety, coupled with the circumstances and conditions existing at the time the account was rendered and the answer served.</p> <p>A person is not interested in the event of an action within the meaning of section 829 of the Code of Civil Procedure unless some legal right of his would be affected by the event of the action or unless the record of the judgment might be used against him to establish a legal right charging him with liability.</p> <p>The chamberlain of the city of New York, in pursuance of an order made in surplus money proceedings, drew a check to the order of an executor and delivered it to one Huerstel, his attorney. The latter indorsed the executor’s name upon the check and delivered it to one Kling.</p> <p>In an action brought by the administratrix of the executor against Kling and the bank in which he deposited the check to recover the amount thereof upon the ground that Huerstel had no authority to indorse the check and had never accounted for the proceeds thereof,</p> <p>Held, that Huerstel' was not interested in the event of the action, as no legal right of his would be affected by the event of the action, nor could the record of any judgment recovered therein be used against him to charge him with liability;</p> <p>That, if the plaintiff’s theory that Huerstel had no authority to indorse the check was correct, the defendants did not derive title from, through or under Huerstel (Ingraham, J., dissented);</p> <p>That Huerstel was, therefore, competent, under section 829 of the Code of Civil Procedure, to testify on behalf of the defendants to personal transactions with the deceased for the purpose of proving that he had authority to indorse the check;</p> <p>That Huerstel’s managing clerk might testify to a communication made to him by the executor in Huerstel’s absence, where it appeared that such communication was made openly in the presence of two other persons and not secretly and confidentially.</p>

<p>Escape— liability under an undertaking given to admit a judgment debtor to the jail liberties — it is not affected by his insolvency, nor by his voluntary return after service .of process on him outside the limits.</p> <p>Where a judgment debtor, arrested under a body execution, is admitted to the jail liberties upon giving the usual undertaking, and subsequently escapes therefrom, the surety upon the undertaking is liable to the judgment creditor for the amount of the debt for which the judgment debtor was committed, notwithstanding the fact that the judgment debtor is insolvent.</p> <p>The fact that the judgment debtor voluntarily returned to the jail limits does not constitute a defense to an action on the undertaking, where it appears that the action was commenced by the service of the' summons upon the judgment debtor when he was actually outside of the jail limits.</p>

Appeal by the defendants, Mary E. Jones and another, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 14th day of December, 1900, granting the plaintiff’s motion for a new trial after the dismissal of the complaint by direction of the court.

<p>Appeal by the defendant, Emily L. Felt, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1901, denying said defendant’s motion for leave to serve an amended answer, and also from an order entered in said clerk’s office on the 18th day of March, 1901, denying a motion for a reargument of said motion.</p>

<p>Marketable title — what title is too doubtful to sustain an action for specific perfoi'mance.</p> <p>A will, which, as a whole, did not disclose any particular testamentary scheme beyond the fact that the testator intended to give a life estate to his wife as long as she remained his widow and the remainder to the children and their issue, some of the children being given an estate in fee simple and the others a life estate or an interest in income, provided as follows: “ Mfth. And the remaining five parts or five seventh parts thereof to be used and disposed of as follows, viz.: I will and bequeath to my son, William R. Soper, one-fifth of the five seventh parts for his use, benefit and behoof in trust for his children.”</p> <p>Held, that the question whether William R. Soper took an estate in trust or a life estate with remainder to his children or an estate in fee simple absolute was so doubtful that the court, without construing the will, considered that a person who, during William R. Soper's lifetime, had agreed to purchase property passing under the will from a person who had thus acquired title to the same would not acquire a marketable title and should not be required to take title to the premises, it appearing that children might subsequently be bom to William R. Soper who would take an interest in the premises.</p>

Appeal by the defendant, George C. Clausen, as president of the department of parks in the city of New York, and as park commissioner of the boroughs of'Manhattan and Richmond in said city, 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, granting the relator’s application to amend an alternative writ of mandamus.

Appeal by the defendant, John Guilfoyle, as commissioner of buildings of the city of New York for the borough of Brooklyn, 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 February, 1901, granting the relator’s motion for a peremptory writ of mandamus requiring the defendant to reinstate the relator in the position of Violation Hotiee Server in the department of buildings…

<p> Inte/rpleader—a mutual benefit association which has issued several certificates allowed to bi’ing in, but not to substitute, in its place, another claimant. </p> <p>A mutual benefit association issued to a member thereof a certificate for §2,000, in which his daughter, Honora Dalton, was named as sole beneficiary. Subsequently the member, as alleged, represented to the secretary of the local branch that the Honora Dalton certificate was lost. A new certificate was thereupon issued, pm-porting to be a duplicate thereof and naming Nora Dalton as the beneficiary. Upon the surrender Of the duplicate a new certificate was issued, ■naming as beneficiaries Catherine J. Fanning in the sum of §1,200, John Brophy in the sum of §300, and Honora Dalton in the sum of §500. Honora Dalton had no notice of the issuing of the duplicate certificate, and she then had in her possession the certificate represented to have been lost. Upon the death of the member, Catherine J. Fanning brought an action against the association upon the certificate in which she was named as a beneficiary, and the association thereupon made a motion asking that Honora Dalton, who claimed to be entitled to the full amount of the benefit under the certificate in which she was named as sole beneficiary, be substituted as defendant in its place and stead upon paying into court to the credit of the action the sum of §2,000, less counsel fee, costs and disbursements.</p> <p>Held, that, under the circumstances, the association should not be released from. ■ liability upon payment of the sum of §2,000, but that its rights would be amply-protected by bringing in Honora Dalton as an additional party defendant.</p>

<p>Conversion—voluntary surrender by a warehouseman of goods not described, in replevin process does not pi'otect the sheriff— effect, as an election, of a motion by the owner to vacate an ex parte order directing their delivery— the owner is not obliged to fie an affidavit of claim with the sheriff— the full value and interest is recoverable by one who has made advances.</p> <p>In an action against a sheriff for converting merchandise to which the plaintiff held the legal title, the fact that the sheriff acted under an ex parte order made in a replevin action against the plaintiff’s vendors, directing the warehouseman with whom the goods were stored to deliver to the sheriff the goods “ stored with them by the defendants, or any of them,” and that the warehouseman voluntarily delivered the goods to the sheriff, does not constitute a defense to the action where it appears that the property converted was stored by the plaintiff and not “ by the defendants, or any of them,” in the replevin action, and that it was not included in the property described in the replevin process, and that the transfer by the warehouseman to the sheriff was made against the protest of the plaintiff.</p> <p>The fact that the present plaintiff made a motion to vacate and set aside the ex parte order, upon which motion the court, as stated in its opinion, held that the motion should be granted unless the present plaintiff was made a party to the replevin suit and permitted to litigate therein his title to the property in question, does not constitute an election of remedies which will estop the present plaintiff from prosecuting the conversion action, where it appears that no order was ever entered upon the motion nor any attempt made to comply with the conditions mentioned in the opinion.</p> <p>Sections 1709 and 1710 of the Code of Civil Procedure, authorizing a person • claiming to own property replevied by a sheriff to file an affidavit of claim specifying the chattels alleged to he owned by him, were intended for the benefit of an officer who replevied the property called for by the replevin papers and not for the protection of an officer who took into his possession property not covered by those papers.</p> <p>In an action for the conversion of merchandise kept for sale upon which the plaintiff has made advances, the full value of the merchandise may be recovered together with interest on such value from the date of the conversion.</p>

Appeal by the defendant, the Union Railway Company 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 on the 20th day of Hovember, 1900, upon the verdict of a jury for $3,000, and also from an order,, entered in said clerk’s office on the 13th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Emma J. Richardson and another, as administrators, etc., of. Joseph Richardson, 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 10th day of August, 1900, upon the report of a referee.

. Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of November, 1900, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 12th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Mandamus—to compel payment to a city contractor—defense that the eight-hour Labor Law has not been complied with—constitutionality of theLabor Law — when a mandamus will issue to enforce payment of a debt.</p> <p>Where the comptroller of the city of New York, in answer to a motion for a peremptory writ of mandamus requiring him to draw a warrant upon the chamberlain of the city for the amount alleged to be due the relator under a contract with the city, submits an affidavit to the effect that the relator, in violation of his contract, failed to comply with the Labor Law (Laws of 1897, chap. 415) in that he had compelled or permitted his employees to labor more than eight hours a day, and that he had not paid them the prevailing rate of wages, the motion is properly denied as it does not appear that the relator has a clear legal right to the amount claimed.</p> <p>Semble, that the constitutionality of the eight-hour provision of the Labor Law has not been determined by the Court of Appeals.</p> <p>The payment of a debt'will be enforced by mandamus only where, upon both the facts and the law, it clearly appears that there cannot be a defense to the claim.</p> <p>Ingraham, J., dissented.</p>

<p>Pi'ojecting wall — when its removal will not he decreed — damages for the encroachment—projection of cornice.</p> <p>In an action to compel the removal of a wall of the defendant’s building, together . with the iron shutters and cornices upon the said walJ, upon the ground that they projected over the plaintiff’s boundary line and overhung and encroached upon the plaintiff’s adjoining property, it appeared that the plaintiff owned a parcel of land which was entirely covered by a four-story brownstone building, and that the defendant was the owner of the adjoining parcel and had erected thereon, at a cost of between §4,000,000 and §5,000,000, a sixteen-story building. The defendant admitted the encroachment of the cornices and of the window shutters when open, but denied the overhanging of its wall. It also alleged that the plaintiff's wall encroached upon the defendant’s property and asked for a mandatory injunction for its removal.</p> <p>Upon the trial the court found that the defendant’s wall, from the roof of the plaintiff’s building to the top of the wall, overhung the plaintiff’s building for a distance varying from one and one-eighth to five and seven-eighths inches.</p> <p>It further appeared that the value of the plaintiff’s building was §500,000, and that with the overhanging of the defendant’s building as it existed at the time of the trial it was worth §495,000.</p> <p>It also appeared that the overhanging of the defendant’s wall was unintentional; that it was impracticable to chip off the wall to the extent of the overhanging, and that to take the wall down and rebuild it would require an expenditure, according to the defendant’s testimony, of §250,000.</p> <p>Held, that, as both parties had invoked the equitable jurisdiction of the court, it had power to require the plaintiff to grant the defendant an easement to maintain the wall upon the payment of §5,000;</p> <p>That as the defendant was chargeable with knowledge that the shutters and the projecting cornices encroached upon the plaintiff’s property the plaintiff was entitled to a mandatory injunction compelling their removal.</p>

Appeal by the defendant, Hugh J. Grant, late sheriff of the county of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of February, 1901, granting the relator’s motion for a peremptory writ of mandamus.

<p>Appeal by the plaintiff, Mary E. Craft, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Greene on the 4th day of December, 1899, upon a nonsuit granted by the court after a trial at the Greene Trial Term.</p>

Appeal by the defendant, The State of New York, from an order of the Court of Claims, bearing date the 29th day of January, 1901, and entered in the office of the clerk of said court, denying the defendant’s motion made at the opening of the trial for a dismissal of the complaint.

<p>Appeal by the defendants, Delbert A. Taylor and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 17th day of August, 1900, upon the report of a referee.</p> <p>This action was brought by plaintiff as trustee in bankruptcy, to set aside the transfer of property from the bankrupt Taylor to the defendant Frank Fish as fraudulent and void, and to recover from him such property or the proceeds thereof; and also to recover as against the defendant Brown certain property alleged to have been fraudulently transferred to him by said bankrupt; and also to recover as against the defendants Elizabeth Fish, Howland Fish and Oora F. Taylor certain sums received by them, or paid for their benefit, in violation of the provisions of section 60 of the Bankrupt Law.</p> <p>The issues were referred to a referee to hear, try and determine, and this appeal is taken from the judgment rendered on his decision thereon.</p>

<p>Contract of sale of chattels—under what “ delivery ” by the vendor the title passes under a 'provision that it is to pass only on delivery “ psi ca/rs.” ■</p> <p>Edward Borst, being the owner of a quantity of lumber at his mill', entered into an executory contract to sell the same-toi A. D. &.M, S. ¡Squires, under which the title to the lumber, was to. pass from. Borst to A. D. & M. S. Squires only . as it was delivered “on cars at Genesee Forks.” Thereafter A. D. & M. S. Squires entered into a contract by which'they assumed to sell the lumber to Earkhurst, French & Beard. Bepresentatives of the two' firms visited Borst’s mill, and after being shown the contract between the two firms,- Borst, in reply to an inquiry made by the representative of Earkhurst, French & Beard, stated,</p> <p>' that he had no objections to delivering the lumber “in pursuance or subject, to ” such contract. Thereupon the representatives of the two firms assisted by Borst went through the mill yard and counted all the lumber therein which was sawed and applicable to the description in the contract; counted the amount thereof in each pile, numbered each pile and marked it as follows: • “ This lumber has been sold and delivered * * * to E., F. &"B.” Subsequently Borst sold and delivered all the lumber then at his mill to Newton</p> <p>J. Feck and others.</p> <p>In an action by the assignee of A. D. & M. S. Squires and Earkhurst, French & Beard against Feck and others to recover for the conversion of the lumber,</p> <p>Held, that under the law of Fennsylvania, which controlled the rights of the parties, the marking' of the piles of lumber and, Borst’s assent to such a “delivery” did not change the obligations of either Borst or A. D.. & M. S. Squires under the contract between them, and did not operate to change that contract from an executory to an executed one;</p> <p>That so long as Borst. could demand the purchase price ’ only upon delivering the lumber ón cars at Genesee Forks, the sale was executory and the title to the lumber passed only as to that portion which he so delivered;</p> <p>That the title to the lumber which Borst delivered to the defendants never passed to A. D. & M. S. Squires or to Parkhurst, French & Beard, and that the defendants were not liable for its conversion.</p> <p>Semble, that a similiar rule prevails in the State of New York.</p>

Appeal by the defendant, Timothy Dinneen, from a judgment of the County Court of Montgomery county in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 18th day of December, 1900,. upon an order of the county judge entered in said clerk’s office on the. 18th day of December,. 1900, affirming a judgment of a justice of the peace in favor of the plaintiff. The action is to replevy a wagon wheel in a Justice’s Court.

<p>France—law of, as to marriage—judicial notice taken that the common law is not in force in France — divorce in State of Dakota—legitimacy of the offspring-of a subsequent marrriage there.</p> <p>Alice Maude Eithian, an American girl, who had been placed in a school at Milan, eloped from there at the age of nineteen with Alberto Martinez, a citizen of the Argentine Republic.' They went to Paris where some form of a marriage service was performed and "stayed there not more than four days when they departed for the Argentine Republic. . After living at Buenos Ayres as husband and wife for eighteen months Martinez sent her to her father in England and deserted her. Thereafter she went with her father to Dakota where she obtained a judgment of divorce against Martinez. She subsequently married Richmond Kingman in Dakota and had a child by him in that State.</p> <p>It appeared that the marriage service at Paris was not performed in accordance .with the Civil Code of France by which marriages are regulated. The Civil Code of France, however, provided:</p> <p>“ Art. 201. If a marriage has been declared void, not only the parties to the marriage, but the issue thereof shall, nevertheless, enjoy all civil rights resulting therefrom, if the marriage was contracted in good faith.</p> <p>■“Art. 302. If only one party was in good faith, only the party in good faith and the issue of the marriage shall be entitled to the civil rights resulting therefrom.”</p> <p>Held, that the quoted sections of the Civil Code of France only awarded property rights to the innocent party to the void marriage and legitimacy to the issue thereof, and did not make the Paris marriage valid as a putative marriage;</p> <p>That assuming that the formalities required by the marriage law of France did not apply to foreigners temporarily in that -country, the Paris marriage was not valid as a common-law marriage, in the absence of proof that the common law was, under such conditions, applicable in France so as to render valid a common-law marriage;</p> <p>That the court would take judicial notice that the common law is not and never was in force in France;</p> <p>That assuming the marriage to have been contracted at a consulate, it would not be valid unless it was performed in accordance with the laws of the domicile of the contracting parties, and that the facts would not justify a finding that the marriage at Paris was contracted in accordance with the laws of the Argentine Republic, the domicile of the husband;</p> <p>That'.a finding that the Dakota court did not have jurisdiction to grant the decree of divorce on the ground that Alice Maude Fithian had not acquired a legal domicile in Dakota prior to the commencement of the action was overborne by the clear weight of evidence;</p> <p>That after the entry of the decree of divorce Alice Maude Fithian was, at least in the State of Dakota, an unmarried woman, and might contract a legal marriage in that State;</p> <p>That the issue of such marriage born in the State of Dakota was legitimate in that State and that as such issue was legitimate at the time and place of its birth, it was legitimate everywhere and might take personal property in the State of New York as the next of kin of its mother.</p>

Appeal by the plaintiff, Mary J. Brennan, as administratrix, etc., •of John Brennan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 18th day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term. Plaintiff’s action is for negligence.

Appeal by the defendant, Agnes M. Dougall, as administratrix, etc., of John H. Van Vechten, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 15th day of October, 1900, upon the report of a referee. The issue made is upon a claim made by the plaintiff against the defendant as administratrix, etc., of John H. Van Vechten, deceased, for moneys loaned upon two occasions.

Appeal by the defendant, The Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on'the 3d day of July, 1899, upon the verdict of a jury for $2,062.50, and also from an order entered in said clerk’s office on the 11th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Uriah Safford, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 1st day of August, 1900, upon the report of a referee.

Motion by the defendants, Bradford R. Wood, individually and as executor, etc., of Bradford R. Wood, deceased, and others, to amend a decision of the Appellate Division of the Supreme Court, third department.

Appeal by the plaintiff, Lena Garrett, from an order of the Supreme Court, made at the Albany Special Term, bearing date the 11th day of February, 1901, and entered in the office of thé clerk of the county of Albany, denying the plaintiff’s motion for a new taxation of costs. Plaintiff demurred to one of three defenses. This demurrer was sustained with leave to the defendant to amend upon the payment • of costs of the demurrer. .

Appeal by the Utica Trust and Deposit Company from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 28th day of November, 1900, directing that the Utica Trust and Deposit Company, Charles M. Friend, as receiver of the D. J. Hamburger & Sons Company and the D. J. Hamburger & Sons Company be substituted as defendants in the action in the place of the Albany Terminal Warehouse Company.

<p>Appeal by the plaintiffs, Henry Chambers and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Warren on the 23d day of October, 1900, upon the decision of the court, rendered after a trial at the Warren Trial Term before the court without a jury, adjudging that an instrument, bearing date September 23, 1896, purporting to be the will" of Clarissa Ordway, deceased, was her last will and testament, and dismissing the complaint.</p>

Appeal by the defendant, Orneldo Satchwell, from a judgment: of the County Court of Tioga county in favor of the plaintiff, rendered on the 11th day of June, 1900, upon the verdict of a jury convicting him of a violation of the Excise Law, also from an order ‘entered in said clerk’s office on the 12th day of 'June, 1900, overruling a plea of a former conviction, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the…

<p>Mortgage — what proof is required to show that a deed absolute on its face is a mortgage.</p> <p>A deed absolute upon its face may in equity be shown by paroi or other extrinsic evidence to have been intended as a mortgage.</p> <p>A written defeasance is not essential, but if an oral defeasance is relied upon it must be established by clear and conclusive evidence beyond a reasonable doubt.</p> <p>Such evidence need not be the direct testimony of a witness, but may consist of extrinsic facts.</p>

Appeal by the plaintiff, George A. Kent, an abutting owner on Court street and a taxpayer of the city of Binghamton, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of .Broome on the 10th day of December, 1900, upon the decision of the court rendered after a trial at the Broome Special Term dismissing the complaint.

<p>Appeal by the plaintiffs, Henry B. Hardenburgh and another, from a judgment of the County Court of Washington county in favor of the defendant, entered in the office of the clerk of the county of Washington on the 19th day of December, 1900, upon the decision of the court reversing a judgment of a justice of the peace in favor of the plaintiffs.</p> <p>This action was brought in a Justice’s Court by the personal service of a summons and verified complaint on the defendant.</p> <p>The complaint alleged the copartnership of the plaintiffs and the sale and delivery by them to the defendant on or about May 11, 1899, of goods, wares and merchandise of the value of twenty-one dollars, for which the defendant has not paid ; and further alleged that there was due and owing .the plaintiffs the sum of twenty-one dollars, with interest from May 11, 1899.</p> <p>The defendant appeared in person on the return day and filed a verified answer which “ denies that he has any knowledge or information Sufficient to form a belief as to the truth of the allegation of the complaint as to the copartnership of plaintiffs, and denies that he owes said plaintiffs twenty-one dollars.”</p> <p>The answer further alleged that certain goods furnished defendant by plaintiffs were not as represented to be; that the defendant refused to accept said goods and offered to return them and plaintiffs refused to receive them; that the defendant has tendered to - plaintiffs the sum of eleven dollars and ten cents, the amount defendant owes plaintiffs, and hereby again tenders said amount to plaintiffs.</p> <p>By consent of the parties the case was adjourned from time to time until March 9, 1900, at nine a. m. On that day, at about nine forty-five a. m., the defendant appeared at the office of the justice and left before ten a. m. and did not return. The .case was called at ten a. m., when Mr. Northup, an attorney, appeared at the request of the plaintiffs’ attorney, and stated to the justice that Mr.</p> <p>Arnold, the plaintiffs’ attorney, would appear in a few minutes and asked to have the case held open until his arrival. The case was held open by the justice and within ten minutes after ten o’clock the plaintiffs’ attorney appeared, put in his evidence, and on the following day judgment was entered for the plaintiffs for the amount of then* claim, from which judgment an appeal was taken to the County Court.</p> <p>The County Court, on appeal, reversed the justice’s judgment, and from the judgment of reversal this appeal is taken.</p>

<p>The failure of a surrogate for more than ninety days to pass upon the report of a referee confirms it — an omission to move for confirmation is not a waiver of the right thereto.</p> <p>Under section 3646 of the Code of Civil Procedure, which provides “ Unless a referee’s report is passed upon and confirmed, approved, modified or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course, and a decree to that effect may be entered by any party interested in the proceeding upon two days’ notice,” the omission of a surrogate to pass upon a report for five months after its submission to him operates to confirm'it and to give any party interested a legal right to a decree of confirmation, although a portion of the delay resulted from the inability of the surrogate, by reason of serious illness, to perform his duties.</p> <p>The omission of an interested party to- move for a confirmation of the report after the expiration of ninety days does not constitute a waiver of his statutory right.</p>

Appeal by .the defendants, Nathan Hanford and another, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chemung on the 14th day of December, 1900, denying the defendants’ motion to change the venue of the action from Chemung to Tompkins county. This action was brought to recover damages for an alleged false imprisonment.

<p> Municipal corporation—liability of, for injury to the property and health of an abutting owner from the escape of sewage from a negligently constructed city sewer—what act is governmental and what ministerial. </p> <p>A municipality, in determining whether it will build a sewer, its location and general plan, acts judicially and is not ordinarily liable in a civil action for its decision in matters connected therewith. Such an action is governmental and public and not ministerial and private; but the act of building and maintaining the sewer is ministerial, in the prosecution of which the municipality incurs the same liability for negligence causing injury as does an individual.</p> <p>Where the basement of a-house draining into a city sewer, with which by a city ordinance the owner is required to connect her drain, is flooded with sewage, and upon an investigation it is found that the tiles composing the city sewer are crushed in and filled up with earth and solid matter owing to the fact that the sewer was constructed in a negligent and improper manner, and not according to the plans and specifications which were adequate and sufficient, the municipality is liable to the owner of the property for the damage done thereto, and, also, for the damage done to her health in consequence of the escape of sewage therefrom and its discharge upon her premises.</p>

Appeal by the defendant, the Atlanta Home 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 Rensselaer on the 29th day of October, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by, John W. Dwight, as assignee for the benefit of creditors of Albert B. Fitch and Charles D. Aldrich, individually and as copartners of the firm of Fitch & Aldrich, and another, from an 'order of the County Court of Chemung county, entered in the office of the clerk of the county of Chemung on the 14th day of July, 1900, on the final accounting of John W. Dwight, as assignee for the benefit of creditors of Fitch & Aldrich.</p>

<p>Appeal by the plaintiffs, John It. Young and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 3d day of April, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Broome Tidal Term, and also from an order entered in said clerk’s office on the 6th day of October, 1899, denying the plaintiffs’ motion for a new trial made upon the minutes.</p> <p>Prior to the commencement of this action plaintiffs were copartners, doing business under the firm name of Young & Newman as tobacco merchants in the city of Philadelphia, Pa., and in the year 1889 the firm of Scott & Clark were cigar manufacturers in the city of Binghamton, N. Y. The plaintiffs sold Scott & Clark leaf tobacco, and in December, 1889, Scott & Clark were indebted to them on account thereof in the sum of $1,226.24, for which Scott & Clark had given them six promissory notes. On the 19th day of December, 1889, one of the said notes amounting to $214.18 having been protested for non-payment, Mr. Newman, one of the plaintiffs, went to the city of Binghamton to look after the interest of the plaintiffs with reference to their claim. The firm of Scott & Clark were at that time indebted to a large number of persons and they could not meet their liabilities. On the morning of the twentieth day of December the plaintiffs procured an attachment to be issued in an action against Scott & Clark, founded upon the note which had matured. The affidavits on which the attachment was issued were made by Mr. Newman and Mr. Hanlon, the plaintiff’s selling agent. In Mr. Newman’s affidavit he says : “ That the said defendants are about to dispose of their property with intent to defraud their creditors.” And he further says that his information was obtained from Mr. Hanlon. In Mr. Hanlon’s affidavit he details the information received by him including the following: “That defendants would execute a bill of sale to a certain party" in this city on the 20th day of December of their entire stock of goods and all of their effects and property, and this party to whom the bill of sale was to be given would then try to compromise with the creditors, otherwise they would not get anything.” He further states in his affidavit “ That numerous creditors have been pressing the defendants for the payment of their claims within the past four days and defendants have stated to deponent that they had a large number of debts outstanding and could not meet their liabilities.”</p> <p>On the morning-of December twentieth Mr. Newman, together with his attorney and a deputy sheriff of the county with the warrant of .attachment in his possession, went to the place of business of Scott & Clark and very soon thereafter an instrument was executed by one of the partners and delivered to the plaintiffs of which the following is a copy:</p> <p>“ Binghamton, N. Y., December 20th, 1889.</p> <p>“ Know All Men By These Presents:</p> <p>“ That I, Lyman Clark, one of the firm of Scott & Clark of the City of Binghamton, N. Y., do hereby bargain, sell and transfer and-set over, and by these presents does bargain and sell to John R. Young and Geo. W. Newman, comprising the firm of Young & Newman of Philadelphia, Penna., all the tobacco unmanufactured and in process of manufacturing, cigars, labels, boxes, fixtures for manufacturing cigars, and all the fixtures and goods of every kind aiid description belonging to said firm of Scott & Clark, located at No. 164 Susquehanna Street in Binghamton, N. Y., together with all the personal property of every kind and name belonging to. said firm of Scott & Clark. Said bill.of sale is made by said firm in consideration of $1,227.00 and $73.00 costs of attachment, in all $1,300.00, due said Young & Newman by said Scott & Clark for notes given to secure said goods above set forth, and to secure the other creditors that Scott & Clark are owing, and said goods are to be held and collected by said Young & Newman for their own purpose and benefit, and to secure other creditors.</p> <p>“ Dated Binghamton, N. Y., December 20th, 1889.</p> <p>“SCOTT & CLARK.</p> <p>“ Per Lyman Clash.”</p> <p>The notes owing by Scott & Clark to the plaintiffs were surrendered to Mr. Clark at the time of the execution and delivery of the writing. The keys of the factory were delivered to Mr. Newman and he made an inventory of the stock and property in the factory, after which he locked up the building and left for the night.</p> <p>Among the other creditors of Scott & Clark was one Frank Keyes, to whom they were indebted in a sum exceeding $1,500. Mr. Keyes obtained a judgment against Scott & Clark December 20, 1889, and an execution was issued thereon and placed in the hands of ¿the defendant. When Mr. Newman returned to the factory on the morning of December twenty-first, he found it unlocked and the defendant in charge, who told him that he had levied on the property of Scott & Clark by virtue of the execution in favor of Keyes. The defendant refused to turn over the property to the plaintiffs and subsequently sold it under said execution.</p> <p>This action was brought by the plaintiffs against the defendant for conversion of the goods so levied upon by the defendant, and an answer was interposed by the defendant. The action was first tried in February, 1891, and resulted in a verdict of a jury in favor of the defendant. After the trial a motion was made on a case and exceptions for a new trial which was granted. The defendant appealed from such order to the General Term of the Supreme Court where the order granting a new trial was affirmed. (77 Hun, 395.) The action was again tried in May, 1895, and resulted in a verdict of a jury in favor of the plaintiffs. A motion for a new trial upon a case and exceptions was made and denied, and an appeal was taken from such judgment and order and the same were reversed by the Appellate Division of this court and a new trial ordered. (33 App. Div. 261.) The action was again tried in September, 1899, and at the close of the plaintiff’s case the court, on the defendant’s motion, granted a nonsuit and the complaint of the plaintiff was dismissed. A motion was made for a new trial, which was denied, and this appeal is from the judgment and order so entered in favor of the defendant.</p>

Certiorari issued out of the Supreme Court, and attested on the 1st day of May, 1900, directed to William J. Morgan, as Comptroller, of the State of New York, commanding him to certify and return to the clerk of the county of Albany all and singular the accounts and all the evidence had before him on the application of the relator for the revision and readjustment of the corporation franchise tax imposed upon the relator for the year ending October 31, 1898, together with…

<p>Appeal, by a defendant in condemnation proceedings — it lies only after- Hie order confirming the report of commissioners has been made.</p> <p>The defendants in a condemnation proceeding cannot appeal from the interlocutory judgment authorizing the condemnation of the property sought to be acquired, hut may, under section 3375 of the Code of Civil Procedure, review such judgment on an appeal taken from the order confirming the report of the commissioners appointed to ascertain the compensation to he paid by the. plaintiff.</p>

<p> Action to enjoin a trespass—where the title is in dispute the trial judge may view the premises with the parties and their counsel. </p> <p>Where the issue, litigated man action to enjoin a trespass upon land, is whether such land is owned by the plaintiff or by the defendants, and the descriptions contained in the conveyances offered in evidence are not entirely clear and some of the trees and other monuments mentioned in such descriptions have disappeared, making it impossible to decide, upon the evidence, which particular tree or pile of stones was referred to in the deeds, or whether the trees or stones referred to in the oral testimony were the same as those described in the deeds, it is proper for the trial judge, at the request and in the company of the parties and their counsel, to make a personal examination of the premises in dispute.</p>

Appeal by the defendant, the Providence Washington 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 West■chester on the 23d day of May, 1900, upon the decision of the court rendered after a trial at the Westchester Trial Term before the ■court without a jury.

<p>Appeal by the plaintiff, Charles W. Sparks, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Richmond on the 8th day of March, 1900, upon the dismissal of the complaint by direction of the court ■ after a trial at the Richmond Trial Term.</p>

<p>Appeal by the defendant, The Supreme Council of the Order of' Chosen Friends, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 21st day of February, 1901, upon the decision of the court, rendered after a trial at the Queens County Special Term, overruling a demurrer to the complaint.</p>

<p>Assessment for tax — increase thereof after the roll is completed—complaint of other taxpayers.</p> <p>Assessors in villages of the third class must, under sections 104-108 of the Village Law (Laws of 1897, chap. 414); complete, verify and file the assessment roll on or before the second Tuesday in May,, and they have no power thereafter to increase an assessment. .</p> <p>The fact that they adjourn the meeting held on the second Tuesday in May, at the request of the person whose assessment they subsequently increase, does not authorize such increase.</p> <p>Qiuere, whether an assessment can be increased upon the complaint of other taxpayers.</p>

<p>Appeal by' Thomas Rogers from an order of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 20th day of March, 1899, opening a decree and authorizing the .petitioners to take further proof upon the merits.-</p> <p>Also a motion by Thomas 'Rogers to resettle a former order of the Appellate Division, second department,. made and entered on the 11th day of July, 1898.</p> <p>Also a motion by Thomas Rogers asking that the Appellate Division, second department, enter a final decree, based Upon its decision entered on the 27th day of March, 1900.</p>

<p>Appeal by the defendant, William.Alwang, from a judgment of. the Court of Special Sessions of the city of New York in favor of the plaintiff, rendered on the 30th day of June, 1899, adjudging the defendant, to be the father of the .complainant’s unborn child-,. and requiring him to give an undertaking for its support.</p>

Appeal by the defendant,. Frederick L. Hine, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendent, rendered on the 24 th day of January, 1901, upon the decision of the'court.

Appeal by the defendant, Raymond F. Almirall, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor- of the plaintiff, rendered on the 15th day of October, 1900, upon the decision of the court. .

<p>• Appeal by the defendant, James Everard’s Breweries, 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 30th day of June, 1900, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 29th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Monsuit—when it will be set aside—what is a decision on the merits. </p> <p>Upon a trial before a referee the plaintiffs called as witnesses the only persons, who were in any way related to the transaction or were familiar with the facts, and the defendant, upon the cross-examination of such witnesses, brought out the facts which it deemed necessary to establish its defense. At the close of the evidence the plaintiffs formally rested and the defendant made a motion to dismiss the complaint upon the ground that the plaintiffs had failed to show facts constituting a cause of action. The referee then said: “ That motion will be decided when I go over the motion and decide the case. If on all this proof I think he has made out his. case, I shall deny the motion and decide in his favor. T don’t Know of anything else but that question involved here, whether, the plaintiff has made out his case. That is the question on all his testimony.’ The plaintiffs’ counsel then stated his theory of the case, and the defendant, without formally resting, made a motion to dismiss the complaint upon the merits upon the following grounds: Mirst, that the evidence failed to establish a cause of action; second, that the evidence affirmatively established that the plaintiff had no good cause of action against the defendant; third, that the evidence clearly establishes the following facts, etc.</p> <p>The matter, without objection on the part of the plaintiffs, was then left in the hands of the referee, who subsequently filed a short decision dismissing the complaint upon the merits, to which the plaintiffs filed an exception.</p> <p>Held, that the plaintiffs could not be heard to assert that the referee’s decision was in effect a nonsuit and not a determination of the case upon the merits.</p> <p>Senible, that if it were a nonsuit, the plaintiffs would be entitled to‘a reversal of the judgment entered upon the decision, if there was any evidence in the case sufficient to support.a finding of a jury in favor of the plaintiffs.</p>

<p>Action by an abutting ownm' for am, injunction and damages against am, elemted railroad company — complaint dismissed where no money damage is shown.</p> <p>Where an owner of property abutting upon an elevated railroad brings an action against the railroad company for an injunction and damages, but fails to establish any money damage to his property, the court will not retain jurisdiction of the action for the purpose of awarding nominal damages, but may properly dismiss the complaint upon the merits. Such a disposition of the case merely operates to leave the plaintiff tó his remedy at law and is an adjudication only upon the question of damages up to the time of bringing the action.</p>

<p>Appeal by the defendant, The Village of Forth Pelham, 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 16th day of May, 1900, upon the decision of the court rendered after a trial at the Westchester Special Term, and also from an order entered in said clerk’s office on the 16th day of May, 1900, appointing commissioners to assess damages.</p>

<p>Appeal by the defendant, Lizzie McConnell, from a judgment of the County Court of Orange county in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 30th day of April, 1900, affirming a judgment of a justice of the peace, and also from an order entered in said clerk’s office on the 30th day of April, 1900, affirming said judgment of said justice of the peace.</p>

<p>Beal estate broker's commissions — that the contract for an exchange of real estate was signed by the husband of the owner is no defense to a claim therefor—nonsuit in the Municipal Court of the city of New York.</p> <p>In an action, brought by a broker to recover commissions on an exchange of real estate, the defendant in such action cannot escape liability by attacking the validity of the contract of exchange, on the ground that it was signed by the husband of the owner of the property to be conveyed to such defendant, where it appears that the contract has been fully executed and he has acquired a good title.</p> <p>When the plaintiff’s evidence is sufficient to require a submission of the case to a jury, had the trial been by jury, a justice of the Municipal Court has no power to grant a nonsuit, notwithstanding that the case is tried before him without a jury.</p> <p>Goodrich, P. J., dissented.</p>

Appeal by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New York, from. • an order of the Supreme Court, made at the Queens County Special. Term and entered in the office of the clerk of the county of Queens-on the 5th day of November, 1900, confirming the report of a referee and correcting and reducing an assessment upon the real property of the relators for the year 1899.

<p>Building and loan association—when its shares mature — the withdrawal value cannot be recovered unless the prescribed notice is given. '</p> <p>A certificate of stock issued by a building and loan association contained an agreement on the part of the association to pay the shareholder the sum of $100 a share at the end of seventy-eight months, and provided that the agreement to pay was “in consideration of the membership fee, together with agreements and statements contained in the application for membership in the. association, and full compliance with the terms; conditions and by-laws printed on the front and back of this certificate, which are hereby referred to and made a part of this contract.” It also provided that the shareholder should pay to the association a monthly installment of , seventy-five cents on each share “ until such share matures or is withdrawn.” The by-laws printed upon the certificate of stock showed that the shares would hot mature until the association received or earned sufficient to pay the sum of $100 per share,</p> <p>jHeld, that the agreement on the part of the association to pay the par value of the shares at the end of seventy-eight months should be understood to be conditional upon the assumption that the receipts and profits would mature the stock by that time.</p> <p>It seems, that such an association has no power to issue a certificate having a.fixed period of maturity.</p> <p>Where an action is brought by the shareholder at the end of seventy-eight months to recover the par value of the shares, and it appears that the receipts and profits of the association are not sufficient to mature the stock at that time, the plaintiff is not entitled to recover the withdrawal value of his stock unless he has complied with the requirements of the association as to the giving of notice, etc., made a preliminary to such payment.</p>

Appeal by the defendants, Theodore Smith and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 18th day of June, 1900, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, The City of New 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 10th day of April, 1900, upon the decision of the court, rendered after a trial at the Queens County Trial Term, before the court without a jury.</p>

<p>Appeal by Camille E. Archibald, third party, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 18th day of January, 1901, denying a motion for a modification of an order directing the said Camille E. Archibald to pay $150 to the receiver of the property of the judgment debtor, Merritt L. Archibald, by striking therefrom the provision directing such payment. ,</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff rendered on the 16th day of November, 1900, upon the decision of the court.

<p>Appeal by the defendants, Mary Anna Steward and others, from a final order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 8th day of April, 1901, confirming the report of commissioners appointed in condemnation proceedings, with notice of an intention to bring up for review 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 4th day of December, 1900, upon the decision of the court rendered after a trial at thé Orange Special Term confirming the report of a referee. '</p>

Appeal by the plaintiffs, Peter V. Rovnianek and another, from a judgment of the Supreme Court in favor of the claimant j Katie Constant, entered in the office of the clerk of the county of Queens ón the 12th day of November, 1900, upon an order of the Supreme Court, made at the Kings County Special Term confirming the report of a referee.

<p>Appeal by- the plaintiff, Alfred P. Wright, from a judgment of the Supreme Court in favor of the defendant, entered in the office ,óf the clerk-of the county of Queens on the '8th day of January, 1900, upon the report of a referee dismissing the¡ complaint upon the merits. . .</p>

Appeal by the defendant, Mary A. Denike, 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 5th day of March, 1901, upon the decision of the court.

<p>Railroad compa/ny—duty of, to restore culverts constructed, when its tracks were laid, to connect land fronting the Hudson river with land on the other side of the tracks — statements on information and belief cure of 'no mail against positive' sworn statements in proceedings for a mandamus.</p> <p>The duty imposed upon a railroad corporation, by the act under which it was incorporated, to restore to its former state of usefulness, so far as practicable, any stream, watercourse, road, highway, dock or wharf interfered with by it, so that “ In all cases where such railroad shall intersect the lands of any individual, or pass between such lands and the usual place of access to the river, and cannot be. conveniently crossed by reason of high embankments, deep cuts or otherwise, the said corporation shall at their own expense construct and sus- » tain convenient passes or roads across or under the railroad, for the passage of persons, cattle, carriages and teams, for the purposes of farming or managing such lands, and giving to them their usual access to-the river,” is a continuous duty, the performance of which may be compelled by mandamus, notwithstanding that the act commanded to be done is for the benefit of an individual and not for the benefit of the general public.</p> <p>Where the railroad embankment intersects a parcel of land fronting on the Hudson river, and the railroad company constructs, in conformity with the requirements of the statute, culverts affording access to the river from the land on the other side of the embankment, the temporary failure of the landowner to make use of the river and of the culverts does not authorize the railroad company to fill up a portion of the latter.</p> <p>Statements on information and belief contained in the papers, submitted in opposition to a motion for a peremptory writ of mandamus, are of no avail against positive sworn statements of facts contained in the moving papers.</p>

Appeal by the defendant, Edward Clark,, from a judgment of the Court of Special Sessions of the city of New York, second division, borough of Brooklyn, rendered on. the 25th day of January, 1901, convicting him of selling liquor in violation of the Liquor Law.

<p>iSpecific performance—the absence of proof of service, by publication, on next of kin, ; | of the citation to attend the proof of a will—when it is not, alone, of itself, suf'dent ground for the rejection of a title.</p> <p>December 8, 1897, an order was entered in a proceeding for the probate of a will, directing the service of the citation, by publication or personally without the State', upon two of the heirs at law and next of kin of the testator. January 31, 1898, the will was admitted to probate. June 13, 1898, a person, who had ■contracted to purchase real property'passing under the will, rejected the title on the ground that there was no proof of service upon such heirs at law and next of kin. June 16, 1898, proofs of such service were filed in the surrogate’s office, pursuant to an order of the surrogate, nunc pro tune as of January 31, 1898. These proofs were in existence duly executed and ready for filing June 13, 1898.</p> <p>In an action brought by the contract vendee to recover the deposit paid by him and the expense of examining the .title,</p> <p>Held, that he could not recover;</p> <p>That the surrogate had jurisdiction.of the probate proceeding and that the decree admitting the will to probate was conclusive uptil revoked or reversed;</p> <p>That the counsel who examined the title was not justified in rejecting it upon discovering the absence of the proofs of service, but was bound to exercise the ■ reasonable care and diligence of a good and faithful expert in that business to ascertain the vendor’s true title.</p>

<p>Appeal by the defendant, Reuben Beck, 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 6th day of December, 1900, upon the verdict of a jury for $2,125, and also from an order entered in said clerk’s office on the 13th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Edward Hall, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 18th day of September, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Nassau Trial Term, and also from an order entered in said clerk’s office on the 26th day of September, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p> Will—when an equitable conversion of real estate into personalty does not take place. </p> <p>The will of a testatrix, whose estate consisted of $15,000 in realty and $70,000 in personalty, and who left her surviving three grandchildren, one of whom, was an infant, gave her residuary estate, both real and personal, to her grandchildren “for their own use and benefit forever, share and share alike. But if any of my grandchildren hereinbefore named shall not be twenty-one years of age at the time of my decease, the share in my estate hereinbefore bequeathed or devised to such grandchild shall be held by the trustee hereinafter named or his successor, in trust to invest the same and keep the same invested until such grandchild shall attain the age of twenty-one years, and then to pay over to such grandchild the said principal sum with the interest - and accumulations thereon; and, in the event that such grandchild shall die before attaining the age of twenty-one years, then to pay the said principal sum and the interest and accumulations thereon to the survivors among the said grandchildren in equal proportions, the share in such fund of such survivor as shall then be of the age of twenty-one years to be paid forthwith; and, if either survivor shall then be under the age of twenty-one years, his share therein to be paid when he shall become of such age.”</p> <p>The will further provided: “ I hereby authorize and empower my said executor and trustee to sell, at public or private sale, and at such time or times and in such manner, and for such sum or sums, and upon such terms as to him, in the exercise of his best judgment, may seem most expedient, and to convey all or any part of my real and personal, estate as he may consider it necessary or proper to do for the payment of my said debts and of said legacies and for any other purpose or purposes whatsoever.”</p> <p>Held, that the will did not effect an equitable conversion of the real estate into personalty.</p> <p>An equitable conversion will not result where only a discretionary power to sell is given, and the scheme of the will can be carried out without such conversion.</p>

<p>Appeal by the defendants, Amelia Flege and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of November, 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 27th day of November, 1900, denying said defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Mack Paving Company of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rockland on the 24th day of July, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term, restraining the defendant, a domestic corporation, from continuing or permitting to be continued upon the premises described in the complaint such blasting of rock as has been done and carried on upon said premises since it acquired possession, and perpetually enjoining and restraining the defendant and its officers, agents, servants and representatives “ from so operating and carrying on the business of quarrying, crushing and screening of trap rock, and from permitting the same to be done in such a manner as to cause fragments of rock or stone or dust to be carried to, over and upon plaintiffs’ premises, or into any. of the buildings upon said premises, or any injury to plaintiffs’ premises by shock or jar, and from causing or. permitting any fragments of stone or rock to be thrown upon plaintiffs’ premises from its said premises, or any dust from its said premises or quarry or crushers or screens to be carried upon, over or into plaintiffs’ said premises and from causing or permitting to be caused any injury by shock or jar to plaintiffs’ premises.”</p>

Appeal by the defendant, John H. O’Rourke, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office- of the clerk of the county of Kings on the 27th day of July, 1900; npon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Á single and entire contract for the erection of a windmill—what must he shown to sustain an action for the contract price — right to substitute a new tower for one which hasproved to he defective.</p> <p>In an action to recover the contract price of a windmill and appurtenances which the plaintiff, alleged that he had erected upon the premises of the defendant, complete and in good working order, it appeared that the plaintiff submitted to the defendant a proposition to “furnish all material and labour to compleat the windmill as we decided on,” stating in detail the specifications of the work and concluding “I will guarantee work and all material to be first-class, and will compleat the job as we talked it over for 337 60-100; ” that at the same time and as a part of the offer, the plaintiff gave the defendant an itemized bill or statement of the amounts to be paid by her for the various parts of the windmill, amounting in the aggregate, including an item of $33.50 for labor in erecting the mill, to the sum of $337.60; that, when the mill was completed, it was found that the tower was not strong enough to support the tank, and the defendant refused to accept the mill, and that the plaintiff then commenced to take it down for the purpose of removing it and on the following day was . notified by the defendant to remove the mill and consider the' contract terminated.</p> <p>Held, that the contract was a single and entire contract for the sale and delivery of a, windmill, and not to furnish material and perform labor upon it for the defendant;</p> <p>.That, in order to be entitled to recover any part of the contract price, the plaintiff was obliged to allege and prove the substantial completion of the windmill according to the terms of the contract;</p> <p>That the defect in the performance of the contract being of a material character, the defendant had the right to terminate the contract and to require the plaintiff to remove the mill without regard to the intention of the plaintiff to remedy the defect;</p> <p>That it was, therefore, error for the court to charge that, if the plaintiff offered to substitute a new tower, in the place of the one which had proved to be insufficient, and was unreasonably prevented from doing so, he was entitled to recover.</p> <p>Semble, that it would be otherwise had the defendant assented to the substitution of a new tower and thereafter prevented its erection.</p>

Appeal by the relators, William M. Mullen and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Eichmond on the 21th day of January, 1901, denying the relators’ application for a.peremptory writ of mandamus.

<p>Appeal by the defendant, Aaron Hilfman, from a judgment of the Court of Special Sessions of the city of New York, second division, borough of Brooklyn, in favor of the plaintiff, rendered on the 27th day of April, 1900, convicting him of a misdemeanor for a violation of section 364 of the Penal Code, and sentencing him to pay a tine of $500 or to stand committed to the Kings county jail for six months.</p>

Certiorari issued out of the Supreme Court and attested on the 10th day of December, 1900, directed to the board of supervisors of the county of Genesee, commanding it to certify and return to the clerk of the county of Genesee all and singular its proceedings in auditing a claim presented to such board by the relator.

Appeal by the defendants, Olaude C. Jones and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 11th day of October, 1900, upon the verdict of a jury for $12,264.17, rendered by direction of the court after a trial at the Erie Trial Term.

<p>Appeal by the defendant, Arnold Bates, from a judgment of the County Court of Ontario county, rendered in favor of the plaintiff on the 11th day of March, 1901, convicting him of the crime of violating the Liquor Tax Law.</p>

<p>Appeal by Lucina Miles, individually, and by Lucina Miles and another, as administrators of the goods, chattels and effects of John 0. Miles, deceased, from a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 8th day of January, 1901, directing said administrators to pay to Rose Leroy the sum of $1,720.22, with interest.</p>

Appeal by the defendants, Robert A. Pinkerton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th 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 13th day of December, 1900, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, David Beck 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 7th day of March, 1901, denying the defendants’ motion for leave to serve a supplemental answer.

Appeal by the defendant, Charles Ward Hall, 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 April, 1901, denying the' defendant’s motion to compel the plaintiff to serve a further bill of particulars.

Appeal by the defendant, Leonard F. Fish, 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 3d day of April, 1901, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Montgomery for the convenience of witnesses.

. Appeal by Anthony McOweh, the purchaser at the foreclosure sale in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered in Che office of the clerk of the county of New York on the 19th day of April, 1901, denying a motion to be relieved' from his purchase.

<p>Marketable title — what is-such convincing proof of death that the acceptance of a title based thereon will be decreed..</p> <p>Albert A. Demarest, who died October 21, lá36, left the remainder of his real and personal property to his four children, Mary Ann Elizabeth, Margaret, Harriet and Albert in equal shares. Albert Demarest, the son, was born October 81, 1831, was married in 1849 and procured a divorce from his wife on November 13,1852, without having had issue. From 1851 to 1860 he lived with his sister Mary Ann Elizabeth, who saw him daily and knew of his associations and acquaintances and his daily manner of living, and up to the last-mentioned year he remained unmarried and without issue. In 1860, by the advice of his physician he embarked on the ship Charlescmd Bdwa/rd, from New Bedford, Mass., bound on a whaling voyage of uncertain duration, communicating with his sisters from time to time. In January, 1865, his sister Mary Ann Elizabeth received a letter addressed to her deceased father, bearing the official seal of the United States consulate at Callao, Peru, • signed by the person who was then Vice-Consul of the United States at that port. The letter stated that one Albert Demarest had died of consumption at Callao, Peru, and thoroughly identified him as the person who had sailed on the whaling ship Charles and Bdward. None of the relatives of Albert Demarest ever heard 6f him after that time.</p> <p>Harriet Demarest died September 6, 1878, unmarried and intestate. The petition for letters of administration upon her estate stated that she left no issue and no brother or sister or descendant of any deceased brother or sister except. Mary Ann Elizabeth and Margaret.</p> <p>■ Held, that the proof was convincing that Albert Demarest died intestate, unmarried and without issue in December, 1864;</p> <p>That the possibility that he might have married and had issue while he was on the whaling voyage was so remote and unreasonable that it should not be allowed as a valid objection to the title;</p> <p>That Mary Ann Elizabeth and Margaret could convey a marketable title to land devised by their father’s will, the acceptance of which, by a contract vendee, would be compelled by the court. . ...</p>

<p>Restoration to office — a demand therefor must be made before-a mandamus will issue ' against the successor of the officer making the removal.</p> <p>A person unlawfully removed from a position in the civil service of a city, who. does not institute proceedings to compel his reinstatement.until after, the officer removing him dies and his successor is ■'appointed, has no standing to'enforce his right t'ó reinstatement by a writ, of mandamus directed to the deceased ■ Officer’s successor, unless it appears that he made, a demand upon such succes-’ . sor for restoration- to his. position prior to the beginning of the. proceeding.</p>

<p>Insurance policy — measure of liability thereunder—effect of a building law preventing a building destroyed by fire being rebuilt of the same material.</p> <p>The provision of the New York standard fire insurance policy that the liability of the underwriter “ shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality,” is not limited to a case in which the underwriter elects to rebuild, but fixes the . measure of the underwriter’s liability in all cases. . . . :.</p> <p>Such provision of the policy is not rendered inapplicable by the fact that the Building burned, which was located in the city of New York, was over eighty feet in height, and that chapter 557 of the Laws of 1897 provides that every building the height of which shall exceed seventy-five feet, erected in the city of New York, .shall be fire proof.</p>

Appeal by Martha E. Cook and others from portions of a decree of the Surrogate’s Court of' the county of New York, entered in said Surrogate’s Court on the 18th day of December, 1900, judicially settling the accounts of James E. Hart and James H. Taft, as executors, etc., of Esther Woods, deceased.

<p>' Assignment of a chose in action — it is effective against subsequent assignees and attachment creditors although no notice thereof is given to the debtor.</p> <p>Notice' oí an assignment of a chose in action need not be given to the debtor within a reasonable time after the assignment in order to prevent bona fide creditors of the assignor from acquiring a valid lien on the chose in action by an attachment served'after the assignment has been made.</p>

<p>• Allowance to counsel assigned in capital cases — it does not include expert's fees.</p> <p>Section 308 of the Code of Criminal Procedure,- which provides, that the court may allow to counsel assigned in a capital case his personal and incidental expenses in addition to compensation for his services, does not authorize an allowance to the counsel for the services of expert witnesses called by him upon the trial.</p> <p>The personal and incidental expenses, for the payment of which provision is made, are those incurred by counsel on his personal account.</p> <p>Laughlin, J., dissented.</p>

<p>Appeal hy the defendants, John F. Betz 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 25th day of January, 1901, 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, 22d day of January, 1901, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Libel — if the meaning of the words used, is doubtful the question whether they were innocent or defamatory should be left to the jury.</p> <p>A newspaper article stating, “Mrs. Cignarale shot her husband in 111th street near Second avenue on October 20, 1886. She was walking with Antonio D’Andrea when the deserted husband confronted them. A fight followed and D’Andrea was being pummelled severely when Mrs. Cignarale drew a revolver and shot her husband. In February, 1887, she pleaded guilty to murder in the second degree, but a new trial was obtained. She was convicted and sentenced by Recorder Smyth to be executed. D’Andrea was tried for complicity in the crime, but was not convicted,” if not libelous per se as to the said D’Andrea, is of doubtful significance and the question whether the words were innocently used or were defamatory should be left to the jury.</p> <p>Semble, that the article would justify a jury in finding that D’Andrea was represented as holding a questionable relation With a married woman, and was libelous per se.</p>

<p>Judgment reversed upon the facts and new trial ordered, with costs to the appellant to abide event.</p> <p>Appeal from a judgment entered in the office of the clerk of the county of Niagara on the 17th day of September, 1900, upon the decision of the court at the Niagara Special Term. The action was commenced on tho 18th day of May, 2900, to foreclose a mechanic’s lien against a house and lot situate in the city of Lockport, in the county of Niagara, N. Y., owned by the defendant Moore, to secure the sum of $120, with interest thereon, the amount claimed to be due .and owing to the plaintiff from the defendant Allan, on account of painting the buildings on said premises and furnishing materials therefor, under a contract entered .into between the plaintiff and - said Allan, dated the 17th day of October, 1899.—</p>

Judgment affirmed, with costs. —Appeal from a judgment of the Monroe County Court, entered May 8,1900, affirming a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff.—

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Plaintiff’s exceptions overruled, motion denied and judgment ordered for the defendant on the verdict, with costs.</p>

Order affirmed, with ten dollars costs and disbursements. Appeal from an order of the Special Term continuing a temporary injunction.

Judgment modified by deducting therefrom the amount allowed to the plaintiff on the,second cause, of action set forth in her complaint, being the sum of $273.50, and which reduces such recovery to . $82.29, and as so modified affirmed, and as to such second cause of action judgment, is' reversed on the law and facts, referee discharged, action severed and a new trial of said second cáuse of action granted. No costs of this appeal are allowed to either party. 'AUcoñcurred.

<p>Judgment affirmed, with costs. All concurred, except Parker, P. J., and Chase, J., dissenting.</p>

Order reversed, wit-h ten dollars costs and disbursements, and the appellant may apply at Special Term, on notice, for a trial of the issues, or for a reference of the same.—Appeal from an order made at Special Term dismissing a petition and proceedings instituted for the condemnation of a right to erect telephone poles over defendants’ lands in the highway.—

Order reversed, with ten dollars costs and disbursements, and matter remitted to the surrogate of Westchester county for determination in accordance with per curiam opinion.

<p>Motion to confirm order of County Court denied, with costs.—Application for an order confirming an order of the Suffolk County Court, which order confirmed the report Of certain commissioners.</p>

Judgment affirmed, with costs. Appeal by the plaintiff, James McCormick, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Orange on the 19th day of November 1900, upon the decision dismissing the plaintiff’s complaint upon the merits, after a trial at the Orange Special Term.

<p>Judgment and order affirmed, witli costs.—Appeal from a judgment in favor of the plaintiff and against the defendant, and from an order denying a motion for a new trial.</p>

Order modified in accordance with' opinion of Jenks, J., without costs. Appeal from an order of the Special Term setting aside an order for the examination of the defendant before trial.

Judgment affirmed, ■ with costs.—Appeal from a judgment entered1 upon the decision of the court at Special Term dismissing the complaint upon the merits.

<p>Judgment affirmed on the opinion of Mr. Justice .Wilmofc M. Smith, at Special Term, with costs. All concurred.</p> <p>The following is the opinion of Smith, J., delivered at Special Term:</p>

Judgment and order reversed upon the facts and new trial ordered with costs to appellant to abide event.—Appeal from judgment entered in the office of the clerk of Erie county in favor of the plaintiff and against the defendant, and from an order denying a new trial.