Volume 61 — New York Supplement

Action by George W. Cooley against | the Trustees of the New York and Brooklyn Bridge. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. Affirmed.

Proceeding by Harriet E. Stevens against Nathan C. Reed, as executor and trustee under the will of Mary E. Harmon, deceased, to compel an accounting. From a decree of the surrogate’s court settling his accounts, defendant appeals. Affirmed. Mary E. Harmon, the testatrix, died on the 20th day of November, 1886. She was a maiden lady, and a sister of the wife of the appellant, and resided in his family at the time of her death, where she had resided since 1867.

<p>Appellate Courts—Jurisdiction—Residence of Defendant—Record.</p> <p>In an action in the municipal court of New York City, for a money judgment, the failure of the record, on appeal, to show defendant’s residence within the jurisdiction of the court, is fatal.</p>

<p>Appeal from municipal court, borough of Manhattan, Ninth district.</p> <p>Action by E. H. Wolf & Co., Limited, against Edward and James Eitt. Judgment for plaintiff, and defendants appeal. Reversed.</p>

<p>Appeal from trial term, Clinton county.</p> <p>Action for injuries by Thomas ¿Vincent against John F. Alden. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Municipal Courts—J urisdiction—Appeal.</p> <p>A judgment of the municipal court for plaintiff will be reversed, where the record fails to show that defendant resides within the jurisdiction of the court.</p>

Application Tby Francis A. Barry and others to place their names on the register roll of electors. From an order denying the application, they appealed. Affirmed. The following is the opinion at special term (BARNARD, J.): The petitioners are pursuing a course of instruction in St. Joseph’s Academy, Yonkers.

Injunction by Warren N. Goddard and others against the American Queen, Incorporated, and others. From a judgment dismissing the complaint (59 N. Y. Supp. 46), plaintiffs appeal. Reversed.

Action by Margaret Fitchett, as administratrix of George H. Fitch-' ett, deceased, against Thomas J. Murphy, Bernard Link, William P. Fay, and the American Billposting Company of the City of Brooklyn, to restrain defendants Murphy, Link, and Fay from paying to themselves salaries alleged to be exorbitant. From a judgment for plaintiff (56 N. Y. Supp. 322), defendants appeal. Reversed.

Action by George Palliser against Joel B. Erhardt and others to recover for services as an architect. There was a verdict for plaintiff, and defendants move for a new trial on exceptions. New trial ordered.

Action by William P. Taylor, receiver of the Buffalo Ice Company, against the Citizens’ Ice Company, to recover for ice sold to defendant. From a judgment for plaintiff, defendant appeals. Reversed.

<p>Appeal from taxation of costs.</p> <p>For former opinion, see 58 N. Y. Supp. 146.</p>

<p>1. Act of Public Officials—Presumption.</p> <p>. The presumption is in favor of the acts of public officials, and, until the contrary appears, it will be assumed that they have obeyed the law.</p> <p>2. Judicial Notice—Civil Service Rules.</p> <p>Judicial notice will not be taken of the rules and regulations of the civil service commissioners of the city of New York, prescribed in accordance with the civil service law.</p> <p>8. Mandamus—Motion for Peremptory Writ—Opposing Affidavits.</p> <p>On a motion for a peremptory writ of mandamus, the statements of opposing affidavits on a disputed question of fact will be taken to be true.</p>

<p>Appeal from Kings county court.</p> <p>Action by Douglas A. Park against Henry I. Hayden. Prom a judgment dismissing the complaint, plaintiff appeals. Reversed.</p>

Action- by Ella Darling against G-. Everett Hunt to recover possession of a certain horse and carriage alleged to be the property of plaintiff. From a judgment entered on the report of a referee in favor of plaintiff, defendant appeals. Affirmed.

<p>Appeal from special term, Dutchess county.</p> <p>Application for mandamus by the people, on the relation of Charles Clark, against John V. Treacy, town clerk of the town of Highlands. From an order granting a peremptory writ, defendant appeals. Affirmed.</p>

<p>1. Highways—Use por County Roads — Power op Supervisors and Local</p> <p>Authorities.</p> <p>Conceding that highways may be taken as county roads in counties of less than 200,000 square miles, under either Laws 1890, c. 555, or Laws 1893, c. 333, and Laws 1895, c. 375, the power of supervisors or of the local authorities over a county road must be found in the statute under which it is taken.</p> <p>2. Street Railroads—Use op Highways—Consent—Conditions.</p> <p>Where the consent of the commissioner of highways is a necessary prerequisite to the right of a street-railroad company to lay its tracks on the highways of a town, a condition attached to their consent, requiring the company to transport passengers for a given fare within its own territory, is not void, as conflicting with the right of highway authorities in other towns or villages to prescribe conditions for the construction of the road within their limits.</p>

<p>1. Attachment—Vacation—Decision of Motion.</p> <p>In deciding a motion to vacate an attachment, only the sufficiency of the papers before the court when it was granted should be considered.</p> <p>3. Same—Warrant—Sufficiency.</p> <p>A warrant of attachment recited that application had been made for it; that defendant was about to dispose of her property with intent to defraud her creditors; and that she had wrongfully converted plaintiff’s personal property, and was about to dispose of her property with intent to defraud her creditors, and thereby injure plaintiff’s personal property; on which grounds the warrant was granted. Held sufficient, under Code Civ. Proc. § 641, requiring the warrant to briefly recite the grounds of the attachment.</p> <p>8. Same—Vacation—Superfluous Averments.</p> <p>That the warrant of attachment contains superfluous averments would not justify its vacation.</p> <p>4. Same—Affidavit—Sufficiency.</p> <p>The affidavit for an attachment alleged that defendant was, to deponent’s knowledge, about to remove her property, or what she may have after disposing of it, from the United States; that she had frequently informed deponent that she would not pay her debts, and would, dispose of her property, and leave the United States; that she would sell her property, and “skip out,” if she was pressed by him; and that she had advertised her property for sale at one-fourth its value, stating that she</p> <p>. would soon leave for Europe. Held sufficient to justify a warrant on the ground that she was about to dispose of her property with intent to defraud, creditors.</p> <p>5. Same—Cause of Action—Incorrect Description.</p> <p>That the cause of action alleged in the affidavit for an attachment was incorrectly described in the warrant would not justify vacation of the latter, if a good cause was alleged in the affidavit.</p>

<p>Divorce—Judgment—Modification.</p> <p>After a judgment disposing of the question of the amount of alimony to be paid, and the conditions under which it shall be paid, without any reservation of power to modify it, it cannot be modified by insertion of such a reservation.</p>

Action by William T. Gilbert, as receiver of the Commercial Alliance Life Insurance Company, against Edward L. Finch and others. From an order denying plaintiff’s motion to place the case on the preferred calendar, he appeals. Reversed.

<p>Appeal from trial term, New York county.</p> <p>Action by Mina Hirschman against the Dry-Dock, East Broadway & Battery Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.</p>

Action by John H. Gass against Mary J. .Souther and others. Judgment for plaintiff, and defendant Mary J. Souther appeals. Affirmed if plaintiff, within 20 days after entry of order herein, pays the lien of the lienor whom he failed to make a party to this action; otherwise, to be reversed.

<p>1. Action by Guardian Ad Litem—Costs—Security—Time of Application-</p> <p>Laches.</p> <p>Under Code Civ. Proc. § 3268, providing that defendant in an action brought by a guardian ad litem may require the plaintiff to give security for costs, a defendant, 'knowing he is entitled thereto, who does not move for such security in an action by a guardian until after the cause has been tried, resulting in a dismissal of the complaint, is guilty of such loches as will justify refusal to require plaintiff to give such security.</p> <p>2. Action by Guardian—Security for Costs—Amount.</p> <p>Under Code Civ. Pboc. § 3272, declaring that, where security for costs is required, the court shall make an order requiring plaintiff either to pay the court the sum of $250, to be applied to payment of costs, if any, or, at his election, to file with the clerk an undertaking therefor, the court has no authority, in an action by a guardian ad litem, to require the plaintiff to give security for a greater sum than $250.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by the Insurance Company of the State of Pennsylvania against Jacob R. Telfair, as receiver of the Pacific Mutual Insurance Company. From a judgment for plaintiff (57 N. Y. Supp. 780) after trial without a jury, defendant appeals. Reversed.</p>

<p>Appeal from special term, New York county.</p> <p>Actions for divorce and separation between Abraham Israel and Tillie B. Israel. From orders denying motions to file nunc pro tune the deposition of a witness taken de bene esse, Abraham Israel appeals. Reversed.</p>

<p>Interpleader.</p> <p>Defendant's application to interplead M. in an action by R. as assignee of K. is improperly granted, it appearing merely that M., a judgment creditor of K., had served defendant with an order in supplementary proceedings to answer as to a fund belonging to K., and that, on the hearing, defendant testified to the filing of the assignment of the fund to R., and that the supplementary proceedings were then dropped,- though M.’s attorney makes affidavit that he believes M. intends to bring proceedings to set aside the assignment; -no facts being alleged showing that M. had any right to set aside the assignment.</p>

<p>Appeal from judgment' on report of referee.</p> <p>Action by William E. Sabin against William A. Kendrick. From a judgment for plaintiff on the decision of a referee, defendant appeals. Reversed.</p>

Action by Maria Moccia, as administratrix of Felix Moccia, deceased, against the New York Central & Hudson River Railroad Company, for the death of plaintiff’s intestate. From a judgment for defendant, dismissing the complaint, plaintiff appeals. Affirmed.

Action by Abraham Westheimer and others against Moses Mus-liner and others. From an order denying a motion to compel plaintiffs to separately number and state the causes of action alleged in the complaint, defendants appeal. Reversed.

<p>Appeal from trial term, New York county.</p> <p>Action by Robert S. Howard against Ira Van Gieson. From an order setting aside a verdict for plaintiff, he appeals. Affirmed.</p>

, against Howard T. Alexander and others. From a judgment entered on dismissal of the complaint on a trial before a jury, plaintiffs appeal. Reversed.

. Appeal from special term, New York county. Action by Lazard Kahn against Henry R. Mount to recover mon•®y paid on a contract for the purchase of real estate, and expenses incurred in searching the title. From a judgment dismissing the •complaint, and directing a specific performance of the contract, as prayed in defendant’s answer, plaintiff appeals. Affirmed.

<p>Appeal from special term, New York county.</p> <p>Action by Anna J. Lennon against Daniel Farrell and another. From a judgment for defendants (59 N. Y. Supp. 277), plaintiff appeals. Affirmed.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Mary L. Rusk against the Manhattan Railway Company. From a judgment on a verdict for plaintiff, and from an order denying motion for new trial, defendant appeals. Reversed.</p>

<p>Appeal from equity term, Ontario county.</p> <p>Action by Myron Washburn and another against Robert R. Benedict, as administrator, etc., to set aside assignments of a mortgage, and recover payments made thereon. From a judgment dismissing the complaint on its merits, plaintiffs appeal. Affirmed.</p> <p>Myron F. Washburn, in 1872, owned a farm in the town of Gorham, in the county of Ontario, and in the month of April of that year he and his wife conveyed the same by warranty deed to their son, Ira G. Washburn, and this deed was recorded April 1, 1882. On April 1, 1877, the said Myron F. Wash-burn and wife executed and delivered to said Ira G. Washburn and his wife, Maggie B., a warranty deed of the same premises for the expressed consideration of $9,200. Of this consideration the deed states that $5,000 were paid by said Maggie B. Washburn, and contains this recital: “And it is hereby agreed by and between the parties to this instrument that she, the said Maggie B. Washburn, is to hold and own an interest to that amount in the above-described premises, and the said Ira G. Washburn to hold and own the balance of the same, with the appurtenances, and all the estate, title, and interest therein of the said party of the first part.” This deed was not recorded until February 18, 1887,—or five years after the recording of the first deed above mentioned. On the 12th of August, 1878, the said Margaret B. Washburn executed her last will and testament, whereby she bequeathed and devised to her husband, Ira G. Washburn, “the use of the interest I have in the farm in which we now reside until my children arrive at the age of twenty-one years. The amount which I paid on the farm is five thousand dollars.” She then directed her executor, to wit, her husband, to pay to each of the two children above referred to $2,500 when they severally attain the age of 21 years. At the time of the making of this will the sons were aged, respectively, 6 and 10 years. Mrs: Washburn died shortly after the execution of this will, and it was duly admitted to probate as a will of real and personal estate in the surrogate’s court of the county of Ontario, and was recorded therein as such, and letters testamentary were issued to the executor, Ira G. Washburn. Neither the will nor an exemplified record of the same was recorded in the office of the clerk of the county. On April 1, 1882, said Ira G. Washburn, by warranty' deed, conveyed a part of said premises to Emma A. Reid with a consideration of $4,890, and the grantee executed back a purchase-money mortgage for that sum to said Ira G. Washburn, “as executor of the last will and testament of Maggie B. Washburn, deceased, in trust for Myron and James T. Washburn, minor children of Maggie B. Washburn, of the second part.” By the terms of said mortgage $1,500 were to be due in one year from its date, and $250 annually thereafter; and the mortgagor possessed the privilege of paying, as she might elect, in excess of the absolute payments, whenever the stipulated sums were due. The right of sale in case of default was given to the party of the second part, “his executor, administrator, or assigns.” On the 1st day of December, 1884, Washburn, as executor and personally, assigned this mortgage by written assignment to Betsey Gorham. She paid the full amount of principal ($2,890) unpaid, together with all the interest to the date of the transfer. She 'died soon after, and on the 27th of March, 1889, her administrator assigned the mortgage to Margaret G. Benedict, and the defendant, Benedict, is her administrator, Both of these assignments are recorded. This action is brought by the legatees of Maggie B. Washburn to set aside these assignments, and for judgment against the defendant executor for the amount paid on said mortgage to him or to said Margaret G. Benedict.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Mary Kelly against the Supreme Council of the Catholic Mutual Benefit Association. From a judgment overruling demurrer to parts of the answer, plaintiff appeals. Affirmed.</p>

<p>1. Trusts—Construction—Validity.</p> <p>A deed absolute in form was given to defendant, with the understanding that such property should be held in trust by her for the purpose of satisfying therefrom her claim of $1,000, and that when a sale should be made of the property the surplus should be paid to the grantor, who remained in possession, received the income, paid the taxes, etc. Such property was afterwards sold for $1,500 above incumbrances. Held, that the agreement constituted a valid trust in favor of the grantor, as to the surplus, when the same was received.</p> <p>'2. Same.</p> <p>Where an agreement as to a surplus constitutes a valid trust as to such surplus, the payment of such surplus to the husband of the cestui que trust, having knowledge of such trust, does not deprive judgment debtors of the cestui que trust of their right to reach same.</p> <p>■3. Mortgages—Deed with Agreement to Reconvey—Parol Evidence.</p> <p>Although a deed is absolute in its terms, paroi evidence is admissible to show that it was given as security for an indebtedness, and that there was a paroi agreement that the balance should be returned to the grantor.</p>

Action by Anthony Schaffer against William F. H-olwill. From-an order overruling a' demurrer to the complaint, and from a judgment for plaintiff on the pleadings, defendant appeals. Reversed.

Action by Mary M. Dusenberry against the New York, Westchester & Connecticut Traction Company. From an order denying plaintiff’s motion to continue a temporary injunction, she appeals. Reversed, and injunction continued.

In the matter of proving the last will and testament of Augustus M. Purdy, deceased. From a decree of the surrogate (55 N. Y. Supp. 044) refusing probate, the proponent appeals. Affirmed.

In the matter of the application of the mayor, aldermen, and commonalty of the city of New York relative to acquiring title to lands required for opening Whittier street.

<p>Appeal from Fulton county court.</p> <p>Action by Albert M. Banker against Reuben W. Willard and Samuel Stockamore. From a judgment for plaintiff, defendants appeal. Reversed.</p>

Action by Harriet A. Gilgallon, as administratrix, against Mary C. Bishop, to set aside assignments of certain mortgages. From a judgment in favor of plaintiff, the defendant appeals. Reversed on. conditions.

Action by Harriett Nugent, an infant, by guardian, against the Metropolitan Street-Railway Company. There was a judgment in favor of plaintiff, and from an order denying a new trial defendant appeals. Reversed.

Petition by Michael T. Daly, commissioner of public works of New York City, to acquire real estate for the purpose of providing for the sanitary protection of the sources of water supply of said city. From an order confirming the appraisal commissioners’ report assessing damages, Robert W. Leonard, as executor of the estate of William H. Leonard, deceased, appeals. Affirmed.

Action by Catherine C. Felts against William B. Collins and others. From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal.

<p>1. Husband and Wife—Agency of Wife—Presumption.</p> <p>A wife who purchases groceries for the family is presumed to do so as agent for her husband.</p> <p>2. Same—Liability.</p> <p>A husband is liable for groceries purchased for the family by his wife; but, without an agreement to become personally responsible, she is not liable for such articles purchased either by herself or her husband.</p>

<p>Appeal—Verdict—Conflicting Evidence.</p> <p>A verdict for the plaintiff based on conflicting evidence will not be disturbed, where no motion was made to dismiss the complaint at the close of the evidence, and it was conceded that the issue was for the jury.</p>

Action by George T. Stoneman, as assignee of Arthur G. Gray under a general assignment for the benefit of creditors, against Arthur Van Vechten and another. From a judgment for plaintiff, defendants appeal. Reversed.

Action by William M. Hill against Charles W. White and others. There was a judgment in favor of plaintiff entered on a decision of the court on a trial without a jury, and defendants appeal. Affirmed as to one defendant (Haas), and reversed as to the others, and new trial granted.

<p>Covenant of Title—Breach—Width of Lot Conveyed.</p> <p>Where a deed describes land as being 35 feet wide, front and rear, and 200 feet in depth, bounded on the west by land owned by G., and on the east by the land of H., and contains a covenant that the grantee shall quietly enjcw the premises, and that the grantor will warrant and defend the title, no breach of covenant occurs by the recovery of a strip of land, which was inclosed with the land sold at the time of sale, from the grantee by G., as the deed conveyed only to the east line of G.’s lot, and there is no proof as to the east line of plaintiff’s lot, and no warranty as to the width of the lot.</p>

Action by the National Bank of Port Jervis against Mary Bonnell and another. From a judgment entered on a decision at special term dismissing the complaint (57 N. Y. Supp. 486), plaintiff appeals. Affirmed.

Summary proceeding by Headley M. Greene against Elizabeth Geiger to recover possession of real property purchased by plaintiff at foreclosure sale. From a final order for recovery of possession, defendant appeals. Reversed.

Action by Judson A. Betts, as committee of the person and property of Caroline Teats, an incompetent, against Eleanor C. Avery, executrix of the will of John Avery, deceased, and Andrew C. Fancher, impleaded, etc. From a judgment for plaintiff, defendants appeal. Affirmed. On the 7th day of October, 1881, letters of administration on the estate of Maria Teats were granted to Joseph Earl by the surrogate of Greene county.

<p>Appeal from special term, Kings county.</p> <p>Action by Elizabeth Wiegel against Henry L. M. Mogk, Timothy Y. Brown, and others. From an order denying a motion to permit defendants to amend their answer, defendants Brown and others appeal. Affirmed.</p>

<p>Appeal from special term, Clinton county.</p> <p>Action by the people of the state of New York, on the relation of Ellis Turner, against Benjamin F. Sanborn and others, Judgment for plaintiff, and defendants and the town of Schuyler Falls appeal from certain portions of the order for judgment. Reversed.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by George Wise against the Brooklyn Heights Railroad Company. From' a judgment dismissing the complaint at the close of plaintiff’s evidence, he appeals. Reversed.</p>

Meyers, against Michael J. Dillon, mayor of the city of Yew Rochelle, and others, to compel relator’s reinstatement as a patrolman of such city. From an order directing the issuance of a peremptory writ, defendants appeal. Affirmed.

<p>1. Money Deposited as Bail—Attachment—Supplementary Proceedings—</p> <p>Payment op Bail to Plaintiff.</p> <p>Where one deposits money with the sheriff as bail for another in an attachment against a judgment debtor in supplementary proceedings, and the sheriff pays the money to the plaintiff in such proceedings under an order treating it as the debtor’s, the depositor cannot recover the money from the sheriff when it is not shown that the attachment proceedings, are</p> <p>- terminated so as to release the money, though the order is no protection for such payment.</p> <p>2. Same—Trial—Direction of Verdict—Dismissal.</p> <p>Where one sues for money deposited with a sheriff as bail in attachment against a debtor in supplementary proceedings, and fails to prove that the attachment proceedings are terminated, a verdict should not be directed, but the complaint should be dismissed without prejudice.</p>

Action by Bichard Downing, as committee of the person and estate of Darling B. Whitney, deceased, an incompetent, against Edwin B. Whitney and others. From a judgment for costs on the overruling of a demurrer, defendants appeal. Affirmed.

Action by Henry Benton Banken against Michael Donovan and Cartwright McBride, as trustees under the will of Bessie 0. Donovan, deceased, and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Affirmed.

<p>1. Railroads—Receivers—Pleading—Cause of Action.</p> <p>The allegations in a complaint that the receiver oí a railroad company did in fact operate the road, and bought coal of plaintiff for that purpose, and that the road could not be operated without such coal, sufficiently states a cause of action, and need not be supplemented by the further allegation that the court directed its operation.</p> <p>2. Same—Parties.</p> <p>An action may be brought against the receiver of a railroad company for coal sold to and used by him in the operation of the road, without suing the company or any other party.</p> <p>8. Same.</p> <p>The fact that the property of a railroad company in the possession of its receiver, and properly at his command, cannot be charged with the payment of claims, if such company exists, without bringing it in as a party defendant, only goes to the extent of the relief sought.</p>

Petition by George G. Renville for a peremptory mandamus against the Gold & Stock Telegraph Company and others. From an order denying the writ, petitioner appeals. Affirmed.

Action for partition by Elizabeth Messmann against Annette Egenberger, William Egenberger, and others. From an interlocutory-judgment entered upon a referee’s report, the plaintiff and the defendant William Egenberger appeal. Affirmed.

Action by George W. Grossman and others against Theodor G. Lurman and others for breach of a contract of sale. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

<p>Appeal from surrogate’s court, Fulton county.</p> <p>Proceedings to remove John L. Getman as executor of the estate of Alexander J. Kasson. From an order of the surrogate removing Mm, said Getman appeals. Affirmed.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Jacob Paul against the city of New York and others. From an order vacating a temporary injunction, plaintiff appeals. Affirmed.</p>

<p>Limitation of Actions—Payments by Grantee of Mortgagor.</p> <p>Payments, by the grantee of one of several tracts included in a mortgage, of interest on the debts secured thereby, where he took under a deed from the mortgagor, wherein he assumed and agreed to pay the mortgage, does-not prevent limitations from running in favor of the mortgagor and his grantee of other tracts, where neither of them, for 24 years after the mortgage became due, paid either interest or principal.</p>

Petition for a writ of mandamus by the people, on the relation of James T. Ellett, against Joseph P. O’Grady and others, composing the board of supervisors of the county of Richmond. Writ granted, and defendants appeal. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Howard Davis against the Valley Electric Light Company. Judgment for plaintiff, and defendant appeals. Affirmed. ■</p>

<p>Appeal from trial term, St. Lawrence county.</p> <p>Action by William Carey against Henry K. Baldwin and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Hugh Maloney against the Union Ferry Company of New York & Brooklyn, impleaded, etc. From a judgment for plaintiff, defendant ferry company appeals. Reversed.</p>

<p>Appeal from special term, Albany county.</p> <p>Mandamus by the people, on relation of Alexander B. Larkin, to compel the board of inspectors to grant a recount of ballots. From an order dismissing an alternative writ, and denying the relator’s application for a peremptory writ (59 1ST. Y. Supp. 62), he appeals. Reversed.</p> <p>At the town meeting held in and for the town of Richmondville on the 21st February, 1899, the applicant, Alexander B. Larkin, was a candidate for supervisor. His opponent was declared elected by a majority of 10 votes, the whole number of ballots cast being 529. Thereupon Larkin applied at special term, on March 11, 1899, for, and obtained, an alternative writ of mandamus, directed to the board of inspectors, requiring a recount. In this writ it was alleged that the board of inspectors did not observe the method of counting the ballots as provided by statute, but that each of the inspectors, together with certain persons employed as clerks to the board, took from the whole number of ballots a certain number, and counted them, and declared the result, both as to the straight and split tickets, and what he regarded as defective and void ballots, and without passing the split tickets, or any of the tickets, from one to the other for inspection; .that the board rejected 43 of the ballots as defective and void, and they were not counted; that upon a recount, conducted in the manner required by the statute, it may appear that the ballots, or some of them, which were rejected as defective and were not counted, may not in reality be defective and void, but ought to be counted, and that a recount is necessary to determine whether the rejected ballots, or any of them, shall be counted; and that upon a recount said Larkin may have a majority of the legal ballots voted for supervisor. The writ required the board to meet at a day named, and publicly recount the ballots in the manner provided by statute, and declare and enter the result, with a full statement of the reasons why any ballot has been rejected as defective and void and not counted, or show cause at a special term on the 8th April, 1899. They were directed to make return pursuant to section 2072 of the Code of Civil Procedure, and, as part thereof, return all the ballots cast at the town meeting. On the 31st March, 1899, the board filed their return. They admitted the holding of the town meeting, and the candidacy of the relator, and that his opponent was declared elected, and stated that the whole number of votes cast was 529; that of the straight ballots the relator received 119, and his opponent 113; that the number of split ballots was 297, of which 43 were rejected by the board as defective and void, and none of them counted; that Holmes, an officer of said election, had 80 ballots to count, of which 8 were rejected. And a like statement was made as to each officer, giving the number each had, and the number rejected. There was a general denial of all the other allegations in the alternative writ. They also alleged that the 43 rejected ballots consisted of blank and .void ballots, and were so declared and determined; that the split ballots were duly passed from one inspector to the other for verification, and were examined by'all the inspectors. All the ballots cast at the town meeting were returned. At the hearing on the 8th April, the defendants moved to dismiss the alternative writ upon the ground, as stated in the order appealed from, that it does not state facts sufficient to warrant its issuing. Affidavits were read upon the part of the defendants relating to the manner in which the canvass was mdde, and the character of the defects for which the ballots were rejected; and thereupon, upon the alternative writ, and order to show cause, and the return, and the affidavits, the order appealed from was made.</p>

<p>Appeal from special term, Franklin county.</p> <p>Action by George W. Crooks, as trustee in bankruptcy, against the People’s National Bank of Malone. From an interlocutory judgment sustaining a demurrer to the complaint (60 N. Y. Supp. 305), plaintiff appeals. Reversed.</p> <p>The complaint sets forth: That on the 17th day of February, 1899, Howard E. King and William H. King, composing the co-partnership of H. E. King & Son, filed their petition, both as individuals and as members of said co-partnership, in bankruptcy, which petition was granted, and that such proceedings were thereupon had that the plaintiff was duly appointed trustee in bankruptcy of the estates of said bankrupts and of each of them. That he has given his bond, duly qualified, and entered upon the discharge of his duties as such trustee. That the said Kings had been insolvent for six months before the filing of such petition. That the defendant is a national banking association, duly organized and incorporated under the laws of the United States, and doing business and located in the village of Malone, in the county of Franklin, in this state. That on the 14th day of February, 1899, the firm of H. E. King & Son was, and had been for a long time prior thereto, indebted to the defendant in the sum of §12,064.35, upon some notes or acceptances of one L. It. Searles, which had been indorsed by said firm to said defendant, and upon which the said firm had received the money therefor. That part of said notes and acceptances were past due, and part had not yet become due. That at that time Howard E. King was the owner individually of 50 shares of the capital stock of the defendant, and of 40 shares of the capital stock of the Malone Water Company, and that such stock was reasonably worth and of the value of §10,-050. That L. It.'Searles, the maker and acceptor of the notes and acceptances held by the defendant, was at that time, and for a long period prior thereto had been, and he is, wholly insolvent, and unable to pay the same or either of them, and the collection thereof could not and cannot be enforced against him. That on the said 14th day of February, 1899, the said Howard E. King, while so insolvent as aforesaid, assigned and delivered to one Frederick G-. Paddock all the said bank and water stock, to induce him to indorse, and to secure him for indorsing, a promissory note made by sajd Searles for the sum of $12,064.55, and said Paddock did thereupon indorse the said note, and delivered the same to the said Howard E. King, who thereupon and thereby became the owner and holder thereof; and the said Howard E. King thereafter, and upon the same day, indorsed with the firm- name of H. E. King & Son and delivered the said note to the defendant for the purpose of securing the said indebtedness of the firm of H. E. King & Son to said defendant; and that the value of said promissory note so indorsed by said Paddock and the said firm of H. E. King & Son, and delivered to the defendant by the said Howard E. King, was and. is $12,064.35. That the defendant, through and by its officers, had full knowledge of the making and indorsing of said promissory note so indorsed by said Paddock as aforesaid, and also of the delivery of said bank and water stock to said Paddock as security for the indorsement of the same at the time said note was made, indorsed, and said stock delivered, as hereinbefore stated. That the effect of the enforcement of said transfer of the said stock by said Howard E. King to said Paddock, the indorsement by the said Paddock of the said Searles note, and the delivery thereof to the defendant, was to enable the defendant' to obtain a greater percentage of its said debt than any other of such creditors of the same class, and also to obtain a preference over the individual creditors of the said Howard E. King out of and from his individual property and estate. That, at the time of said transactions, the defendant had reasonable cause to believe that the procurement and delivery to it of the said promissory note on the part of the bankrupts was to give the defendant preference, and that such transfer is void under the bankrupt act. For a second cause of action, the complaint alleges: That on “the 4th day of February, 1899, King & Son were indebted to the defendant in the sum of $2,625.13 for an overdraft, and $283.63 for accrued interest upon a promissory note theretofore given by the firm. H. B. King was then the owner of a real-estate mortgage for $4,000 and interest, of the value of $4,500, and on that day H. E. King assigned the mortgage to his son, John H. King, and son-in-law, H. D. Thompson, to secure a note of John H. King indorsed by Thompson for $3,100, which note was delivered to H. B. King, who delivered the note to the defendant to secure the overdraft and accrued interest. The defendant had full knowledge of the making and indorsing of the promissory note by John H. King and H. D. Thompson, and the assignment of the mortgage by H. E. King as security. The effect of the enforcement of the transfer of the mortgage, execution of the note, and delivery to the defendant was to enable the defendant to secure a greater percentage than other creditors of the same class, and to obtain a preference over the individual creditors of H. E. King.’’ “Such promissory note is reasonably worth the sum of $3,100. At the time of the transaction the defendant had reasonable cause to believe the transaction and the delivery of the note were for the purpose by the bankrupts to give defendant a preference, and such transfer and delivery of the note is void under the bankrupt act.” The plaintiff further alleges that, before the commencement of this action, he demanded from the defendant the surrender of the said promissory notes, which was refused. .He then demanded that the defendant pay to him, as such trustee, the value of the said bank and water stock so transferred by the said Howard E. King to said Frederick G. Paddock, and also the value of the said real-estate mortgage assigned by said Howard E. King to said John H. King and H. D. Thompson, but that the defendant has neglected and refused to either deliver the said promissory notes to him as such trustee, or to pay to him the value thereof, or- of said bank and water stock, or of the said mortgage; and he demands judgment that the transfer of said notes be declared void and set aside, and that the defendant deliver to the plaintiff, as such trustee, the aforesaid promissory notes, or pay to him the value thereof, to the extent of the value of said bank and water stock, and said mortgage, to the extent that the same is now held by it under said assignment.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Sarah M. Disbrow against Griffin B. Disbrow and others. Judgment for plaintiff, and certain defendants appeal. Modified.</p>

Action by George Gennerich and others against John Voigt and another. From a judgment for defendants, plaintiffs appeal. Reversed.

<p>Appeal from trial term, ¡New York county.</p> <p>Action by William C. Uptegrove and another against William O. Schwarzwaelder and others. Judgment for plaintiffs, and defendants appeal. Reversed.</p>

<p>Appeal from trial term, Tioga county.</p> <p>Action by P. M. Sharpies against 0. Everett Angelí. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Action by John D. Schriever against the Brooklyn Heights Railroad Company. Motion by plaintiff’s attorney to enforce his lien after settlement between the parties. Ho fraud against the attorney in the settlement was claimed. Granted.</p>

<p>Appeal from trial term, Orange county.</p> <p>Action by George H. Rysdyke against the town, of Mt. Hope. From, a judgment entered on a dismissal of his complaint, plaintiff appeals. Reversed.</p>

<p>Motion for reargument denied.</p> <p>For former opinion, see 60 N. Y. Supp. 195.</p>

<p>"Appeal from special term, Kings county.</p> <p>Action by Josephine C. Drake against Edward C. Bell. From a judgment in favor of plaintiff (55 N. T. S. 945), defendant appeals. Affirmed.</p>

<p>Appeal from municipal court, borough of Brooklyn, Fourth district.</p> <p>Action by Louis N. Lucia against Louis Omel. From a judgment of the municipal court dismissing the complaint, plaintiff appeals. Reversed.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Adolph M. Droste against William H. Palmer. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

Bill by John Reilly, as executor of Jacob Michel, deceased, and in his own right, against Emma Porcher, impleaded with others. From a judgment sustaining a demurrer to the bill, plaintiff appeals. Affirmed.

Jones, against Bird S. Goler, as comptroller of New York City, and others, to compel respondents to cancel the record of certain tax sales of relatrix’s property. From a denial of the application, relatrix appeals. Affirmed.

<p>Appeal from trial term, Westchester county.</p> <p>Action by Willis S. Watson against John P. Duncan and Stuart Duncan for personal injuries. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Joseph Lennon against Charles D. Ingersoll. From a judgment for plaintiff on a referee’s report, defendant appeals. Affirmed.</p>

Action by Edwin L. Paris against the Brooklyn City & Newtown Railroad Company and another. From a judgment upon a verdict in favor of plaintiff and an order denying a new trial, the defendant railroad company appeals. Affirmed.

<p>Application to resettle an order entered on appeal from a surrogate’s decree awarding costs to the contestants. Denied.</p> <p>For former opinion, see 60 A. Y. Supp. 496.</p>

Action by James E. Corcoran against the New York, New Haven & Hartford Railroad Company. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Reversed.

Action by Garrett S. Braisted against the Brooklyn & Rockaway Beach Railroad Company, impleaded with Ralph G. Packard and another. From an order punishing the first-named defendant for contempt, it appeals. Affirmed.

Action by Isidore M. Bon against the Kings County Elevated Railway Company and James H. Frothingham, as receiver of the company. Judgement for plaintiff, and all the parties appeal. Affirmed.

<p>1. Appeal and Error—Reargument—Not Necessary to Show Process by Which Conclusion is Reached.</p> <p>The fact that the appellate court did not, in its opinion, detail the evidence and circumstances showing the process by which it reached its conclusion, is not ground for reargument.</p> <p>2. Railroads — Gates and Flagman at Crossing — Sounding Whistle and</p> <p>Ringing Bell.</p> <p>Defendant having maintained a gate and flagman at the crossing at which plaintiff was injured, it is not error to instruct that there was no obligation resting upon the defendant to ring a bell or sound a whistle if the gates were up, and the engineer did'not know it, but if he did know the fact, or if from his position he ought to have known it, the jury were to . determine whether his failure to ring a bell or sound a whistle was negli- , gence.</p> <p>3. Same—Failure to Operate Gates.</p> <p>Defendant, having erected gates and stationed a flagman at a certain crossing, became bound to properly operate same, and failure to properly perform the duty would constitute an act of negligence; hence it is not</p> <p>error to instruct the jury that defendant had the right to operate its trains over the crossing at any rate of speed, provided it used care in operating the appliances intended to shut off the public from contact with their engines at such crossing.</p>

Action by the Iron National Bank of Plattsburgh against Alfred Dolge, Walter N. Kernan, and others. From an order denying a motion for change of venue, defendant Kernan appeals. Reversed, and motion granted.

Summary proceedings by Robert Quinn against Timothy W. Quinn to obtain possession of leased premises for nonpayment of rent. From a judgment of the municipal court of the city of New York dismissing the petition, plaintiff appeals. Reversed.

Action by Margaret Bowler against Philip Brandmeier and others. From an order denying a motion to compel defendant Brandmeier to complete a purchase of real estate at a referee’s sale thereof, plaintiff appeals. Affirmed.

<p>Mechanics’ Liens—Gravestones—Time op Filing Lien.</p> <p>Under Laws 1897, c. 418, §§ 16, 40, relating to liens on monuments and gravestones, and requiring- notice of such lien to be filed with the superintendent of the cemetery where the monument is erected within one year after the agreed price becomes due, the court has no jurisdiction to give leave to file such a lien nunc pro tune after the year as prescribed in the statute h$s passed.</p>

Action by Edwin L. Henderson against the Nassau Electric Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Action by Patrick Driscoll and others against James D. Nelligan. There was a judgment for defendant, and from an order granting a new trial, because of improper conduct of the jury in arriving at a verdict, defendant appeals. Reversed.

Action by Martin Mland against Walter Geer and another. • From a judgment in favor of plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

<p>1. Courts—Jurisdiction op Municipal Court op New York City.</p> <p>The municipal court oí the city of New York has jurisdiction of the person of defendant residing in the city of New York, but in a county other than that of plaintiff, when the process in the action is served in the county of defendant.</p> <p>2. Same—Replevin.</p> <p>The municipal court of the city of New York has jurisdiction of an action to replevin chattels, although they were unlawfully taken and detained by defendant in the city of New York, in a county other than that of plaintiff.</p>

<p>Street Railroads—Injuries—Trial—Question eor Jury—Dismissal.</p> <p>Though, in the first trial of an action for injury by a street car, it appeared that plaintiff walked slowly across the street, without looking, yet where she testified, on the second trial, that, after looking both ways, she walked fast in attempting to cross the street, and the jury might have found that the evidence first given was due to some misapprehension on her part, it was error for the court to dismiss the complaint, since plaintiff was entitled to go to the jury on the question of her credibility.</p>

<p>1. Libel—Words not Libelous Per Se—Question eor Jury.</p> <p>Where words are not libelous per se, it is tor the jury to determine in what sense they were uttered and understood.</p> <p>2. Same—Libelous Letter—Questions eor Jury.</p> <p>Though a libelous letter may be held by the court to be prima facie privileged, the writer’s good faith and the existence of actual malice are questions for the jury.</p> <p>3. Same—Privileged Communications.</p> <p>Where the defendant wrote a letter to one on whose recommendation he had employed plaintiff to manage a store to give him to understand that he was mistaken in his recommendation, and that plaintiff was unworthy of confidence, a communication of the fact that plaintiff had “questionable connections” in the place where he was employed was not privileged, conceding that it may have been proper to have called attention to plaintiff’s business delinquencies.</p> <p>4. Same—Punitive Damages.</p> <p>A libel recklessly or carelessly published, as well as one induced by personal ill will, will support an award of punitive damages.</p> <p>5. Same—Excessive Judgment.</p> <p>A judgment for $5,000 for writing a libelous letter charging plaintiff with dishonesty and moral delinquency is not excessive.</p>

<p>Appeal from trial term, Westchester county.</p> <p>Action by Victoria E. Bell against the city of New York. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from municipal court, borough of Brooklyn, First district.</p> <p>Action by Robert Campbell against John G. Porter. From a judgment in favor of plaintiff, defendant appeals. Modified.</p>

<p>1. Beneficial Associations — By-Laws—Amendment—Adoption — Presumption.</p> <p>The by-laws of a mutual benefit association provided that they should not be amended unless three-fourths of the members present at the meeting when the proposed amendment was voted on voted in favor of it. The records of thp association showed that an amendment was voted on at a regular meeting, after due notice, and that 46 voted for, and 4 against, the amendment, which was immediately declared adopted by the presiding officer, and the society thereafter acted on the amendment. Meld, in the absence of evidence to the contrary, that it will be assumed that all the members present participated in the vote, and that it was adopted by the required majority.</p> <p>■2. Same—Delinquent Members—Right to Benefits.</p> <p>■ The by-laws of a mutual benefit association provided that any member indebted for dues for one year should be in arrears, and be subject to have his name stricken from the roll of membership, .unless he could make excuse satisfactory to two-thirds of the members present at the next regular 'meeting after the penalty had been incurred. Meld, that one in arrears for over a year, and liable to have his name stricken from the rolls, was not in good standing, so as to be entitled to- benefits to which only members not in arrears were entitled.</p> <p>-8. Same—By-Laws—Reasonableness.</p> <p>By-laws of a mutual benefit association, organized to pay a certain sum towards defraying the funeral expenses of deceased members, providing that any member indebted for one year should be held to be in arrears, and, being in arrears, should not be entitled to payment of the benefit, and authorizing amendment only on.a two-thirds vote of the members present at a regular meeting, after the amendment had been proposed in writing and" presented to the association at least one month prior to being voted on, are reasonable and valid.</p>

<p>Appeal from special term, Dutchess county.</p> <p>Action by the village of Bronxville against the New York, Westchester & Connecticut Traction Company. From an order continuing a temporary injunction, defendant appeals. Affirmed.</p>

Action by Sarah Strong Jones against the New York Central & Hudson River Railroad Company for a personal injury. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. In February, 1894, the plaintiff attempted to board one of the defendant’s trains at or near a station known as “Fail-port,” upon its road. The train was a local freight, with one passenger coach, and was the only passenger train westward on the West Shore road.

<p>1. Sales—Warranties—Pleading.</p> <p>In a complaint for a breach of warranty, an averment that the articles purchased were warranted to be fit and proper for the purpose for which they were designed is supported by proof of either an implied or an express warranty.</p> <p>3. Same—Prejudicial Error.</p> <p>Where evidence tended to prove that the crank hangers for bicycles purchased by plaintiff were latently defective, in consequence of the process of manufacture, as well as because of the use of malleable iron instead of steel in their construction, an implied warranty was established; and a charge that plaintiff could not recover without showing an express warranty was prejudicial error.</p>

<p>1. Sales—Action for Price.</p> <p>Where plaintiffs sought to recover for goods sold to defendant’s decedent, and the evidence showed that the goods were sold to another party, who was acting for himself, and that the defendant’s decedent guarantied payment, the complaint should have been dismissed.</p> <p>2. Principal and Agent.</p> <p>Statements of a party that he was acting as the agent of another are-inadmissible to prove the agency.</p> <p>3. Sales—Principal and Agent.</p> <p>Where plaintiffs sought to recover for goods sold to a third party as the agent of defendant’s decedent, and it appeared that when Ihe sale was made such party was acting for himself, and that defendant’s decedent guarantied payment, it was error to refuse an instruction that, if the transaction constituted a sale to the third party, and payment was guarantied by defendant's decedent, the verdict should be for the defendant.</p> <p>4. Same.</p> <p>Where the seller of goods seeks to show that the purchaser acted as the agent of another, it is not enough to show that such an agency existed at some other time, but it must be shown that the agency existed at the time of the sale.</p>

Application by the people, on relation oí John Halsted, against the board of canvassers of the town of Cortlandt, for mandamus to require defendants to declare relator elected to an office. Denied.

<p>1. Master and Servant — Permanent Structures — Care Required oe Master—Appliances.</p> <p>A derrick consisting of a mast 10 inches square and 40 feet long, with a boom of same dimensions, was firmly attached to the ground by planks in which a metal plate had been imbedded, and which were weighted down with heavy stones. The derrick remained in this place nearly five months, and until the completion of the work for which it was used. Meld, that it was a permanent structure, within the rule that a master must use reasonable care in providing his servant with suitable appliances and in keeping them in repair.</p> <p>3. Same—Evidence—Question for Jury.</p> <p>Steel cables supporting a derrick were old, and the outer surface had become worn, and many of the wires were broken. It x^as in evidence that the cables appeared rusty, as though they had been used, and were flattened in places, and, on account of the wires being broken, could not be handled with bare hands, and that, after the break, the broken ends were rusty and xvorn, with little strands sticking out, and some wires were longer than others, and the break looked as though the cable had pulled apart! It also appeared that when one of the wires breaks, and moisture gets in, the rust eats into the wire, and weakens it. Meld, in an action for injury caused to a servant by the cable breaking, that the question should have been submitted whether the cables were so defective as to render them inadequate for their purpose, and hence whether the master used reasonable care in providing the servant with suitable appliances; and this, whether the derrick was a movable structure or not.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Michael H. Haffey against Sarah Lynch. Appeal by defendant from the terms imposed as a condition to allowing her to serve a supplemental answer. Modified.</p>

<p>1. County Board—Auditing Claims—Assessment Boll.</p> <p>Under the statute requiring the hoard of supervisors to include in the assessment roll such claims as are allowed by them, the inclusion of a claim in such roll constitutes an audit thereof, though it was included without investigation, and while an appeal was pending from its allowance by a town board.</p> <p>2. Same—Estoppel.</p> <p>Where an appeal from the audit of plaintiff’s claim by a board of supervisors was referred to a committee, and plaintiff appeared before the committee at the time of its action thereon, on the return of a report disallowing the claim it was too late to object that the matter was not properly before the committee. ' 0</p> <p>8. Same—Reauditing.</p> <p>Where a board of supervisors referred a claim which they were required to audit to a committee, but afterwards audited the claim themselves, without investigation, by directing it to be included on the assessment roll, the adoption of the committee’s report disallowing the claim was a valid reaudit, though such adoption was made without investigation, and without the evidénce before the committee.</p> <p>4. Remedy—Certjobabi.</p> <p>Where plaintiff contends that the action of a board of supervisors disallowing his claim as constable on the ground that he was not legally appointed w'as illegal, as collaterally determining his right to the office, his remedy is by certiorari, and not by action.</p>

<p>Appeal from trial term, Cayuga county.</p> <p>Action by Joseph C. Byrne against the Nye & Wait Carpet Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p> <p>LTpon the 30th day of January, 1894, Elizabeth M. Byrne, a daughter of the plaintiff, an infant then between 15 and 16 years of age, while in the employ</p> <p>of the defendant company, was injured by having four fingers of her left hand cut off by one of the machines in the defendant’s factory. One of the purposes of this machine, which was called a “shearing machine,” was to trim and cut the nap off from carpets after they were manufactured, and for that purpose, as appears from the photograph in the printed case, some knives were placed upon a cylinder at the top of the machine. The cylinder, including the knives, was about five inches in diameter. The plaintiff’s daughter was employed in another part of the room in which was placed this machine, and had been there for about six months. Her business was to pick the carpets, and darn them, if there were any loose threads or holes. There were a number of girls engaged with her in the same occupation. The work which she was employed and directed to perform was not a dangerous work, and was in no way connected with these machines. These machines were run by men who were fully acquainted with their working. At noon upon the day in question, about a quarter before 1, the machinery was started in motion. It was not then the duty of the person in charge of the machine to be at his post. There was a carpet in the machine, which was being run through, and, as the plaintiff’s daughter passed the machine, she noticed that the carpet was drawn in such a way as, if not adjusted, would result in its damage. She thereupon undertook to press out the crease or to pull the carpet so that it would run through the machine properly. In. so doing her fingers were drawn into these knives, and the injury was suffered.</p>

Application of the grade crossing commissioners of the city of Buffalo for the appointment of commissioners to ascertain the compensation of parties injured by change of grade. From an order dismissing the application the board of grade crossing commissioners and Edward Smith appeal. Order affirmed. Seneca street, in the city of Buffalo, runs easterly and westerly. Smith street intersects it, running northerly and southerly.

<p>1. Partnership—Possession of Realty—Legal Presumption as to Title.</p> <p>It is a legal presumption that a firm’s possession of realty is subordinate to, and consistent with, the record title in an individual member.</p> <p>2. Same—Mortgage by Individual Member—Enforcement.</p> <p>Where a firm has had full benefit of a mortgage on its property executed by a single member, and has never questioned his right to execute it, it cannot complain of its enforcement against the property covered thereby.</p> <p>3. Mortgage on Real and Personal Property—Failure to File—Effect.</p> <p>Though failure to file a mortgage covering both real and personal property may invalidate it as a chattel mortgage, it does not affect its validity as a lien on the real estate.</p> <p>4. Same—Validity—Fraudulent Concealment.</p> <p>A mortgagee’s failure to record a mortgage, and to mention it in answer to inquiries as to the mortgagor’s financial standing, furnishes no ground for declaring it invalid.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by John Haines against Patrick H. Keahon. Judgment for plaintiff. Defendant appeals. Reversed.</p>

<p>Contempt—Imprisonment—Successive Punishments.</p> <p>An imprisonment of defendant for contempt on an interlocutory order before judgment will not prevent his subsequent imprisonment for disobedience to final judgment in the same action, under Code Civ. Proc. § 111, which provides that “the. prisoner shall not again be imprisoned upon a like process issued in the same action or arrested in any action upon any judgment under which the same may have been granted”; “process,” as there used, referring to process after final judgment.</p>

<p>Appeal from special term, Wayne county.</p> <p>Bertha Albring, as administratrix, etc., against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.</p> <p>This is an action brought under the statute by the legal representative of Elmer S. Albring, deceased, to recover damages for his death, as caused by the negligence of the defendant. Upon the 1st day of December, 1895, Elmer Al-bring entered the service of the defendant as a brakeman. Upon the 14th day of January, 1896, he was found in a dying condition by the side of the defendant’s track about 100 feet east of the west end of a bridge which carries the highway over the track at Red Creek, one of the stations upon defendant’s road. Upon that day Albring left Oswego on a freight train for Wallington about 10 or 11 o’clock in the morning, and the return trip commenced about 3 in the afternoon. He was head brakeman both ways. On his return trip his train arrived at Red Creek at 4:50 in the afternoon. Two witnesses on behalf of the plaintiff swear that Albring was seen several hundred feet west of this bridge to jump from a box car down upon a gondola ear, and thereafter to climb upon another box car. He passed out of view of these two witnesses from 75 to 150 feet west of the telltales, which were placed at 250 feet west of the center of the bridge, to warn brakemen of the low bridge which they were approaching. He was at that time walking leisurely towards the front of the car. After the train had passed this bridge, some trackmen who were repairing the defendant’s track just east of the bridge discovered a cap, and, upon going a short distance further, found the plaintiff’s intestate in a dying condition. This bridge was so constructed that the bottom of the needle beam was 16 feet lV/o inches from the top of the rail. The top of an ordinary freight car is from 11 feet 3 inches to 11 feet 9 inches from the top of the rail. This needle beam is a long beam placed under the center of the bridge, parallel with the track, about 11 inches square, and projects about 5 feet from the side of the bridge on either side. The train was eastward bound. About 250 feet west of this bridge, upon the north side of the track, was a pole with an arm that extended over the track, to which were originally attached 14 telltales, so called. These consisted each of an iron rod about 16 inches in length, and attached to the end of that rod was a rope about 2 feet in length and an Inch in thickness. These telltales hung over the track at a height of about 16 feet and 2 inches, their purpose being to warn brakemen on the train of the approach to a low bridge. Upon the day in question, and for several months prior thereto, 2 of these telltales, to wit, the fourth and fifth from the south, were entirely gone. There is evidence, also, to show that the third one was tangled with the second. There was therefore a space of from 15 to 18 inches, through which the head of a brakeman might pass without being struck by these telltales. The evidence shows that the center of this space came about 2 or 3 inches south of the center line of the track.</p>

<p>Sale—False Representations—Rescission—Election of Remedies — Replevin.</p> <p>Defendants by false and fraudulent representations purchased certain goods from plaintiffs, and mortgaged a part thereof to a bank. Plaintiffs, after rescinding the sale, brought replevin against the bank; and such action was, with defendants’ consent, settled for a stipulated sum, which, after deducting the costs and expenses, netted less than the sum defendants agreed to pay for all of the goods., Meld, that such rescission and the replevin suit were not such an election of remedies as would preclude plaintiffs from suing defendants for the balance due on the goods under the original contract.</p>

<p>Appeal from equity term, Erie county.</p> <p>Suit by Charles F. Hahl and others against Barbara Sugo to compel defendant to remove portions of her house encroaching on plaintiffs’ premises. From a judgment in favor of plaintiffs (57 N. Y. Supp. 920), defendant appeals. Affirmed.</p>

<p>Bonds—Wrongful Pledge—Conversion—Monet Had and Received—Notice-Tender.</p> <p>Where a partnership was required to maintain a deposit as security for advances, and one of the partners wrongfully deposited plaintiff’s negotiable bonds intrusted to his possession, on which defendants made advances in good faith to a part of their value, before notice by the owner of the wrongful taking of the bonds, and after notice defendants sold them to satisfy the firm’s indebtedness, which then exceeded their value, whereupon plaintiff sued defendants, alleging that they had wrongfully converted the bonds, and were indebted to her for the money received on their sale, such action being for money had and received, and not for a conversion, plaintiff was entitled to recover the sum realized on the sale over the sums advanced prior to notice, though no tender of defendants’ lien had been made.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by Reuben L. Smith against Clara S. Balcom and others. Judgment for plaintiff, and defendants appeal. Affirmed.</p>

<p>Appeal from trial term, Wyoming county.</p> <p>Action by the State Bank of Pike against John Napier and others. Judgment for defendants. Plaintiff appeals. Affirmed.</p>

<p>1. Mortgages—Merger.</p> <p>On the death of mortgagor, defendant became the owner of six-sevenths of the property covered by the mortgage, and took an assignment of the mortgage and note. He subsequently transferred the mortgage as collateral security, and at one time made an arrangement whereby he was to take it up, which he never carried out. Seld, not to show a merger, but an intent on part of defendant to keep the mortgage alive.</p> <p>2. Same—Foreclosure—Allowance of Time to Pay Judgment.</p> <p>An allowance of 10 days to defendant in foreclosure proceedings in which to pay the sum found due plaintiff, the amount allowed the guardian ad litem, and the expenses of sale, if any, is reasonable.</p> <p>8. Same—Costs.</p> <p>An allowance of §40 to a guardian ad litem in foreclosure, and a direction that the sum be paid from the amount received from the sale of the property, is reasonable, and within the discretion of the court.</p>

<p>1. Partnership—Dissolution—Contract—Injunction—Receiver.</p> <p>Where a member of a firm agreed to sell his interest to plaintiff, who paid a part of the purchase price therefor, but thereafter sold such interest to D., and a written agreement was subsequently entered into, signed by the initials of all the parties, providing that it should be put in legal form on demand of either of the parties thereto, by which D. agreed to pay plaintiff two-thirds of the price he had paid for such partner’s interest, and such agreement was delivered to plaintiff, to make copies for the other signers, D. being ready and willing to comply with such agreement, plaintiff' was not entitled to an injunction and .the appointment of a receiver pending suit to dissolve the partnership, on the ground that defendants were conducting the business wastefully and to their own advantage, and threatened to exclude plaintiff from participating therein; plaintiff making no claim that defendants were insolvent or irresponsible.</p> <p>2. Same—Delivery.</p> <p>Where a tripartite agreement was delivered to plaintiff to make copies for the other signers, the fact that such signers afterwards attempted to gain possession thereof did not show that the delivery to plaintiff was not sufficient to render the instrument fully operative.</p>

Action by the State Bank of Syracuse against John A. Lighthall and others. Judgment for plaintiff, and defendants appeal. Affirmed. Plaintiff brings this action to foreclose a mortgage bearing date the 26th day of February, 1896, recorded in the Onondaga county clerk’s office on the 18th day of December, 1896, in Book 326 of Mortgages, at page 285.

<p>Appeal from Niagara county court.</p> <p>Action by Charles Strubing against Patrick Mahar. From a judgment of nonsuit, and an order denying a motion for a new trial, plaintiff appeals. Affirmed.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Ellen 0. Hommel and another against William J. Butt-ling, as sheriff of Kings county. Judgment for plaintiffs, and defendant appeals. Affirmed.</p>

'Appeal from special term, Monroe county. Action by John Martin, as executor of the estate of James Martin, deceased, against the Monroe County Savings Bank, to recover the amount of a deposit. The deposit was claimed by William Martin, and he was joined as party defendant. From a judgment in favor of plaintiff, defendant William Martin appeals. Beversed.

Action by Grace McDonald, administratrix, against the Metropolitan Street-Railway Company. From a judgment for defendant on a verdict directed by the court, and from an order denying a new trial, plaintiff appeals. Affirmed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Edward S. Stokes, as receiver of the Hoffman House, against the Hoffman House of New York, as reorganized, to recover money paid by mistake. From a judgment for plaintiff, entered on the report of a referee, and from an order denying defendant’s mo tian for a return of the report for amendment, defendant appeals. Affirmed.</p>

Action by John Almond against William Hart and others. From a judgment for defendants, entered on a nonsuit against plaintiff, he appeals. Reversed. One Phippin had a contract with the defendants to perform certain work for them in constructing a building. Phippin employed the plaintiff and his assignor to work on this job.

Action by H. Clifford Spurr, as receiver, etc.,' against Mervin Hall, a judgment debtor, C. Pisher, and others. From a judgment in favor of plaintiff, defendants appeal. Reversed. The action was commenced on the 9th day of May, 1898, to set aside as fraudulent and void a chattel mortgage executed by Mervin Hall to the defendant Judson G. Pisher, which was dated on the 12th day of July, 1897, and to recover the property covered by said mortgage.

Action by the United States Trust Company, trustee, against John M. Hodgson. Defendant appeals from an order of the general term of the city court (58 N. Y. Supp. 1132), reversing an order of the special term directing a judgment entered by the plaintiff to be vacated, and allowing defendant judgment on a counterclaim. Affirmed.

Action by the Franklin Coal Company against Frank Hicks. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Affirmed.

Action on a note by Sarah J. Cushman against John De Mallie and another. From a .judgment in favor of defendants, and from an order denying a motion for new trial, plaintiff appeals. Affirmed.

Action by John Coast and another against John McCaffery and another. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed.

Application of- Henry H. Lyman, commissioner, for an order revoking and canceling a liquor-tax certificate issued to Erie 'County Athletic Club. From an order denying respondent’s motion for a trial of the issues by jury, respondent appeals. Affirmed.

<p>1. Loss op Property—Evidence op Value.</p> <p>In an action for the value of a lost watch case, a case of a similar design is admissible in evidence to show value. t</p> <p>-J¡. Same—Examination op Experts.</p> <p>The testimony of experts as to the value of a lost watch case, as determined from the value of a case of similar design, is admissible.</p> <p>3. Same. '</p> <p>Where an expert had heard testimony as to the similarity between the watch case offered in evidence and the lost case, he may testify as toválue without being asked hypothetical questions.</p>

Action by Frank G. Nally against Hiram Hitchcock and others. From a judgment for defendants, and an order denying a new trial, plaintiff appeals. Affirmed.

<p>Master and Servant—Appliances—Negligence.</p> <p>An employer instructed his employés to build horses for a scaffold, to be used by the workmen in the house he was constructing, from certain particular material, of which there was just enough for that purpose. An employé was injured by the breaking of a horse made of defective material, the defect not being apparent to an ordinary observer. The employé took no part in selecting the material or putting it together. Eeltl, that the employer’s negligence in failing to afford the employé a safe place to work was the cause of the injury.</p>

<p>1. Mandamus—Trial—Findings by Jury—Effect.</p> <p>Findings of a jury on questions of fact joined, on an alternative writ of mandamus are conclusive on the supreme court at special term.</p> <p>2. Same—Bight or Appeal.</p> <p>Since an order directing a peremptory mandamus is a final judgment in the proceeding, errors arising in the course of the trial or proceeding may he reviewed on appeal from such order.</p> <p>. 3. Same—Costs—Extra Allowance.</p> <p>An extra allowance of costs cannot he allowed on the trial of an alternative writ of mandamus.</p>

<p>In the matter of the application of a majority of the directors of the Simonds Furnace Company for a voluntary dissolution. Application by the receiver for an order to discharge a mechanic’s lien filed by the Bovaird & Seyfang Manufacturing Company against the property of P. H. Lynch. Denied.</p> <p>The Simonds Furnace Company is a domestic corporation. A majority of the directors of the Simonds Furnace Company, by petition in the usual form in proceedings for a voluntary dissolution of a corporation, obtained an order from the supreme court on the 6th day of October, 1899, directing that all persons interested in the said corporation show cause at a special term of the supreme court on the 13th day of January, 1900, why the said corporation should not be dissolved. By the said order Lewis W. Raymond was appointed temporory receiver, and the said order further provided “that all persons, and especially creditors of said corporation, be, and each and every one ■ of them is hereby, enjoined and restrained from bringing any action against said corporation for the recovery of a sum of money, and from taking any further proceedings whatsoever in any such action heretofore commenced.” The Bovaird & Seyfang Manufacturing Company is a corporation organized under the laws of the state of Pennsylvania, having its office at Bradford, Pa. A copy of said order was served upon Walter S. Pendleton, an agent of the Bovaird & Seyfang Manufacturing Company, in New York City, on the 11th day of October, 1899. The said Bovaird & Seyfang Manufacturing Company has not complied with sections 15 and 16 of the general corporation law of this state. In September, 1899, the said Bovaird & Seyfang Manufacturing Company sold to the said Simonds Furnace Company a boiler and castings, of the value of ■$387, which boiler and castings were to be, and were, used in the property of one-P. H. Lynch, situated at the northwest corner of 141st street and Hamilton place, New York City. On the 16th day of October, 1899, the said Bovaird & Seyfang Manufacturing Company filed in the office of the clerk of the county of New York a notice of lien against the said P. H. Lynch, owner, and his said property, for the said amount of $387. This is an application on behalf of the temporary receiver of the Simonds Furnace Company for an order vacating, canceling, and discharging the said notice of lien; also, to punish the said Bovaird & Seyfang Manufacturing Company and said Walter S. Pendleton for contempt of court and disobedience of said order.</p>

<p>Appeal from trial term, Hew York county.</p> <p>Action by William E. Bailey against Percy W. Miles. From an order denying plaintiff’s motion to place cause on the preferred calendar, he appeals. Reversed.</p>

Y. Denied. The assessors of the town of Rochester, Ulster county, N. Y., made an assessment for the year 1899 against the relator, the Cornell Steamboat Company, of $75,000. The assessors met to review the assessments on the third Tuesday of August, pursuant to notice. The relator appeared before them, and made application for a reduction of the assessment. The assessors reduced the assessment to the sum of $25,000.

Action by Louis Bellemare against the Third Avenue Railroad Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.

<p>1. Ferries—Negligence—Dismissal.</p> <p>In an action against a ferry company for injuries, plaintiff testified that, as she stepped from the bridge to the boat, she saw the boat was a little higher than the bridge, but nothing else; that, as her foot left the-boat, the boat went to and fro, and her foot got between the boat and the bridge. Held sufficient to liase the inference of defendant’s negligence in failing to properly secure the boat, and plaintiff’s freedom from contributory negligence, and dismissal of her complaint was error.</p> <p>2. Same—Witnesses—Jury.</p> <p>In an action against a ferry company for injuries, plaintiff testified that the boat moved as she stepped on it. She produced an employs of the company to testify to technical matters, but on cross-examination, against her objection, he testified the boat was securely fastened. Held that, he being an adverse witness, and such testimony not relating to his direct examination, she was not concluded by it, but was entitled to have the jury determine which statement was true.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Fred E. Guy against Horace Craighead and wife to-set aside a deed as fraudulent as to creditors. Judgment for defendants. Plaintiff appeals. Affirmed.</p>

<p>Appeal from special term, New York county. .</p> <p>Action by Prank P. Hastings against the Twenty-Third Ward Land-Improvement Company. Prom a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>1. Contracts—Pleading—Answer.</p> <p>Defendant in an action on a contract for the price of stock food answered that the contract was signed for her by her husband, who could not read, and that plaintiff’s agent read the contract to him as if it contained an agreement to deliver a wagon with the food, whereas no such agreement was in the contract, and the wagon had not been delivered. Defendant did not ask to have the contract reformed, but repudiated it altogether. Held insufficient to constitute a defense, since the nondelivery of the wagon was not a .breach of the contract as written, and, if the contract was void for fraud, defendant had no right to the wagon.</p> <p>2. Same.</p> <p>Where defendant’s answer .to an action on a contract alleged a counterclaim to which she would not be entitled if the contract was valid, and did not allege that it was void, the answer was insufficient.</p>

<p>Municipal Corporations—Defective Sidewalk—Personal Injuries—Non-suit.</p> <p>Plaintiff sustained injuries by the sudden caving in of a flagstone sidewalk. A sewer connection had been made at the point of the accident, but the earth was properly tamped, and the sidewalk was replaced. The plaintiff and his witness had walked over it when it was raining, and some water diverted from its course by building material placed in-the street under a permit from defendant city ran over the walk; but there was no evidence that it undermined the walk, and it was not pleaded. The only negligence pleaded referred to the excavation, the manner of filling it, the issuing of the permit therefor, and the want of proper barriers. Held, that the complaint was properly dismissed, since under the pleadings and proof there was no question for the jury.</p>

<p>Appeal from trial term.</p> <p>Action by Francis J. Moissen against John P. T. Rooney. Judgment for plaintiff for less than amount claimed, and he appeals. Affirmed.</p>

<p>1. Trial—Amendment—Surprise.</p> <p>It is not error to permit plaintiff to amend her complaint, at the time of trial, in a particular which does not materially change the cause of action, where it is not claimed that it was a surprise to defendant.</p> <p>'3. Appeal—Verdict—Conclusiveness.</p> <p>The supreme court will no-t, on appeal, interfere with a verdict rendered on conflicting evidence.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Louis Bauer against Henrietta M. Parker and others. From an order staying proceedings on a judgment, plaintiff appeals. ÜGVGÍ S0(i</p>

<p>1. Assignment for Creditors—Fraud—Omission from Inventory.</p> <p>The omission of certain personal property from the inventory and schedules, filed at the time of an assignment for benefit of creditors, is not in itself an evidence of fraud sufficient to warrant setting the assignment aside, in the absence of other evidence of fraudulent intent, where the property was in fact turned over to the assignee.</p> <p>2. Same.</p> <p>If, after the property is delivered to the assignee under an assignment for creditors, he allows it to escape from his possession, the assignment is not invalidated.</p>

<p>Appeal—Referee’s Report—Reversal.</p> <p>Where, before the taking of testimony, the referee dismissed the complaint on the merits, assuming- that the cause was submitted on the question of limitations raised by defendants’ answers, but the appeal record, fails to show such submission, and states that defendants moved to dismiss the action on the complaint only, plaintiffs, having excepted to the referee’s report and the judgment thereon, were entitled to a reversal to-enable them to introduce testimony in support of the complaint.</p>

Action by Eva Schroeck, an infant, against Letta Reiss. From judgment dismissing complaint, and from an order denying motion for new trial, plaintiff appeals. Affirmed.

Action by the John Polhemus Printing Company against Harry C„ Hallenbeck. From a judgment entered on a verdict, and an order denying a new trial, plaintiff appeals. Modified and affirmed.

<p>Appeal from trial term.</p> <p>Action by Samuel Steuer, administrator of. Israel Steuer, deceased^ against the Metropolitan Street-Railway Company. From a judgment on a verdict for defendant, and from an order denying a motion, for new trial, plaintiff appeals. Affirmed.</p>

<p>Appeal—Review—Failure to File Exceptions.</p> <p>Where no exceptions are filed to the decision on a trial to the court "below, the only questions reviewable are those raised by exceptions to-rulings on the trial.</p>

Action by William H. Fox against John B. Ireland, impleaded with others. From judgment dismissing the complaint as to said Ireland, and from order denying motion for new trial, plaintiff appeals. Reversed»

<p>Executors and Administrators—Sale oe Real Estate—Administration Expenses.</p> <p>Where an administrator received personal assets in excess of the debts and funeral expenses of, the deceased, the real estate cannot be sold to pay administration expenses, or any debts incurred by the administrator after the death of the intestate.</p>

<p>Appeal from trial term.</p> <p>Action by one Morris against one Sire. Judgment for plaintiff, and defendant appeals. Reversed.</p>

<p>Appeal from trial term.</p> <p>Action by one James against one Coe for rent. From a judgment for plaintiff, defendant appeals. Beversed, and new trial ordered.</p>

<p>1. Evidence to Contradict Admissions—Admissibility.</p> <p>Where defendant’s answer admits certain allegations in the complaint, evidence offered by him contradicting such admissions is inadmissible.</p> <p>3. Account Stated—Evidence.</p> <p>In an action on an account stated, a judgment in another action by plaintiff against defendant is inadmissible as a credit to defendant, without proof that it was recovered on some of the items in the account.</p>

Action by Maggie Singer against John McDermott to recover for injuries sustained by the negligence of defendant’s servant. Judgment for plaintiff, and defendant appeals. Affirmed.

Action by John J. Levien against W. Seward Webb, as president, etc. From a judgment for plaintiff, and an order denying a new trial, defendant appeals. Affirmed.

<p>Appeal from trial term.</p> <p>Action by William S. Anderson and another against John Dwyer. Judgment for plaintiffs, and defendant appeals. Reversed.</p>

<p>Appeal from trial term.</p> <p>Action by Joseph Finnigan, by his guardian, against Frederick Biehl. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

Action by Isaac Kubin against Miller Bros. & Co. Judgment for plaintiff. Motion to vacate the judgment by Alexander B. Smith, as receiver for defendants, was denied. From an order denying the receiver’s motion to compel acceptance of his notice of appeal, he appeals. Reversed.

Action by John W. Kellar, as commissioner, against George Shrady and another. Defendants’ demurrer was sustained, and from so much of the order and interlocutory judgment as denied them costs, they appeal. Reversed.

<p>Appeal from special term.</p> <p>Action by Simon E. Bernheimer and another against Daniel Kelleher. From- a judgment finding defendant guilty of contempt, he appeals. Affirmed.</p>

<p>Action by the American Distributing Company against the Nassau Show-Case Company, a corporation.</p>

<p>Action by William Bentley against Elisha W. Gardner, impleaded, etc.</p>

<p>In the matter of proving the last will and testament of Elbert H. Bogart, deceased.</p>

Actions by William J. Buttling, executive ember of the Kings County Republican Comittee, representing the Fifth ward, against iehael J. Dady, chairman of the executive mmittee of the Kings County Republican Gen■al Committee.

In the matter of the petition of John D. Campbell for an order revoking, etc., liquor tax certificate No 24,279, issued to William F. Robinet.

<p>Action by Christian Feigenspan, a corporation, against Patrick O’Brien.</p>

<p>Action by Robert Corbett against Augusta Clason.</p>

<p>Action by Elizabeth Crane against Harriette Van Derveer.</p>

<p>Action by Sarah Cook against Joseph White, James Conroy, and others.</p>

<p>Action by Frederick C. Clark and others against William O. Schwarzwaelder and others to enforce an alleged personal liability of defendants as directors of a corporation. Judgment for plaintiffs, and defendants appeal. Reversed. Almet R. Latson, for appellants. D. M. Porter, for respondents.</p>

<p>Action by Peter Deinhart, as administrator, etc., of Martin Deinhart, deceased, against the Electric Light & Power Company of Syracuse, impleaded with the city of Syracuse.</p>

<p>Action by Wilson Degraw, by Gilbert Degraw, his guardían ad litem, against the Erie Railway Company.</p>

<p>Action by Benjamin O. Floyd against Frederick Smith.</p>

<p>Action by Bertia V. Fowler, as administratrix, etc., against the Buffalo Furnace Company.</p>

Action by the German National Bank of Little Rock against Oliver L. Geer, James 0. Hutchinson, and another, on drafts drawn, payable to plaintiff’s order, on defendants, and accepted by the latter. From a judgment for plaintiff defendant James C. Hutchinson appeals. Affirmed. Alexander S. Bacon, for appellant. Thomas Fitch, for respondent.

<p>In the matter of proving the last will and testament of William Griffin.</p>

<p>Ac tian by Frank Hopkins against Sarah A. Rath bun.</p>

<p>Action by Eugene A. Johnson against the Long Island Railroad Company.</p>

<p>Action by Michael J. Lawler against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Thomas M. McGrath against Hermann Weiller.</p>

<p>In the matter of the revocation of the will of Julia Murphy, deceased.</p>

<p>Action by the National Bank of Deposit of the City of New York against Henry P. Rogers and others, executors, etc. There was a judgment in favor of plaintiff, and defendants move for a new trial on exceptions. Motion denied. Thaddeus D. ICenneson, for the motion. Ambrose G. Todd, opposed.</p>

<p>Proceedings by the people of the state of New York ■against Stephen L. Mershon.</p>

<p>Proceedings by the people, on the relation of George Brooks, against Michael J. Dillon, as mayor, and others.</p>

<p>Proceedings by the people of the state of New York against Frederick 0. Sands.</p>

<p>Proceedings by the people, on the relation of George T. Jones, against Conrad Diehl and others, constituting the board of police of the city of Buffalo, N. Y.</p>

<p>In the matter of the application of Richard J. Pugh to lay out a highway.</p>

<p>Action the Rochester Bill-Posting Company agai the city of Rochester.</p>

<p>In the matter of the petition of Richard Scott and others.</p>

<p>Action by George Singer against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Henry A. Robinson, for appellant. Hymes, Woytisek & Schaap, for respondent.</p>

<p>Actions by Henry E. Smith, by Gilman H. Perkins, and by Frank Campbell against Samuel Hoff and others.</p>

<p>Action by the Tarrytown, White Plains & Mamaroneck Railway Company against the New York, Westchester & Connecticut Traction Company.</p>

<p>Action by Henry H. Stilson against Emily Stiln.</p>

In the matter of the appraisal of the property of Joseph Thorne, deceased, under the act in. relation to taxable transfers of property. Eunice E. Huff, individually and as executrix, etc., appealed.

<p>Action by Clement Triano against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed. John W. Hutchinson, for appellant. Sheehan & Collins, for respondent.</p>

<p>Action by William Wills, as receiver of the Brooklyn Elevated Railroad Company, against the Brooklyn Union Elevated Railroad Company.</p>

<p>Action by Helen F. Woodbridge, as trustee, etc., against the First National Bank of Saratoga Springs.</p>

In the matter of the judicial settlement of the accounts of Thomas J. Yawger and another, administrators, etc., and also the proof of the personal claim of Malinda Fitch, administratrix.