Volume 62 — New York Appellate Division Reports

<p>Appeal by the defendants, Armitage Mathews, as receiver, etc., of Plock, Steinbach & Murray, 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 Hew York on the 10th day of August, 1900, upon the report of a referee.</p>

Appeal by the plaintiff, The New York and New Haven Automatic Sprinkler Company, 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 30th day of October, 1900, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, John H. Flagler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th- day of January, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of January, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the petitioner, Anthony J. Allaire, 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 January, 1901, denying his motion fora peremptory writ of mandamus.</p>

Appeal by the defendant, Warren O. Plimpton, 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 October, 1900, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 23d day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Robert Beggs, 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 26th day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the plaintiff, Vito Marino, an infant, by Rocco Martorana, liis guardian ad litem, from a judgment of the Supreme Oourt in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the plaintiff, Theodore F. Jackson, as trustee under the last will and testament of Loftis Wood, 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 4th day of April, 1901, upon the decision of the court rendered after a trial at the New York Special Term sustaining the defendant’s demurrer'to the complaint.

Appeal by the plaintiff, William F. Fay, 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 léth day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 16th day of February, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Sun Printing and Publishing Association, 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 March, 1901, granting the defendant’s motion for leave to serve an amended answer.

Appeal by the defendant, James Gordon Bennett, 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 10th day of December, 1900, upon the verdict of a jury for §2,500, and also from an order entered in said clerk’s office on the 7th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Continental Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, bearing date the 10th day of December, 1900, and entered in the office of the clerk of the county of New York upon the report of a referee.

Appeal by the defendant, Charles D. Haines, 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 21st day of February, 1901, referring the issues in the action to a referee to hear and determine.

<p>Motion for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Yew York Trial Term.</p>

<p>Will—equitable conversion — a gift consisting of a direction to pay over is contingent—allowances as in case of a “ contest ” — double commissions, when allowable.</p> <p>A testatrix by her will gave her residuary estate, both real and personal, to her executors in trust to sell and convert the same into cash and invest the proceeds in specified securities and “to pay over to my sister Kate E. Leach the net income arising from the equal one-lialf part of my said estate during her life,” and “ On the death of my sister Kate E. Leach to pay over, distribute and divide the equal one-half part of my said estate to and among the children of my said sister Kate E. Leach share and share alike, and in the event of any of such children being minors it is my wish that their father shall have no power or control to dispose of any share or shares bequeathed to such children by me.” The will further conferred on the executors an absolute power of sale.</p> <p>Kate E. Leach and three-children survived the testatrix. Subsequently these children released to their mother all their interest in the real and personal estate of the testatrix, and the mother, by an instrument in writing, attempted to release unto herself the income directed to be paid to her and claimed that by virtue of these releases the trust was terminated and that she was entitled to the trust estate freed from the trust.</p> <p>The statute upon the subject is as follows: “Whenever a beneficiary in a trust for the receipt of the rents and profits of real property is entitled to a remainder in the whole or a part of the principal fund so held in trust subject to his beneficial estate for a life or lives,, or a.shorter term, he may release his interest in such rents and profits, and thereupon the estate of the trustee shall cease in that part of such principal fund to which such beneficiary has become entitled in remainder, and such trust estate merges in such remainder.”</p> <p>Held, that the will effected an equitable conversion of the residuary estate not. withstanding that the executor had not exercised the power of sale given to him by the will;</p> <p>That as the gift to the children of. Kate E."Leach consisted solely, in the direction to divide the trust estate on the death of Kate E. Leach, the gift to them was contingent and not vested, and that the attempt to vest in Kate E. Leach both the corpus and income of the trust estate was void;</p> <p>That as the executor had not separated his duties as executor from his duties as trustee by converting the estate into money and setting the trust funds apart from the general fund, and as no separation of such duties had taken place by judicial decree, the executor, was not entitled to double commissions on his accounting as executor and as trustee;</p> <p>That as the surrogate had, without objection on the part of Kate E. Leach, treated the litigation as to the termination of the trust as a contest, she could not object because the surrogate had made allowances as in the case of a contest, notwithstanding that the term contest,” as used in section 2561 of the ■ Code of Civil Procedure, relates to the trial of an issue of fact.</p> <p>Where the executors of a will are also trustees thereunder, double commissions cannot be allowed unless the will contemplates a separation of the duties of executor and trustee and fixes a point, of time at which one function shall end and the other begin, or there has been a final j udicial settlement of the accounts of the executor as such.</p> <p>In order to warrant the allowance of double commissions the will must not provide for the coexistence continuously from the beginning of the two functions and duties, and where it does provide for separate and successive duties, that of trustee must be actually entered upon and its performance begun either by . real severance of the trust fund from the general assets or by a judicial decree which wholly discharges the executor and leaves him acting and liable only as trustee.</p>

<p>Action on behalf of the plaintiff and other creditors to set aside for fraud an assignment for creditors — an accounting therein is not binding on creditors who have not been notified to appea/r therein—the assignment remains valid as to them— what notice must be given under section 786 of the Code of Civil Procedure — no • commissions and expenses allowed to an assignee where the assignment is set aside.</p> <p>Where a creditor of a decedent, who had made an assignment for the benefit of creditors, brings an action under section 7 of the Personal Property Law (Laws of 1897, chap. 417) to set aside the assignment as fraudulent, which action, as stated in the title, is brought by the plaintiff individually and on behalf of all other creditors of the assignor whose claims exceed the sum of $100, and results in a judgment adjudging the assignment to be fraudulent and void as against the plaintiff and directing the assignee to account before a referee, whose report is subsequently confirmed and the accounts of the assignee approved, creditors of the assigned estate, who never took any position in hostility to the assignment and were not made parties to the equitable action and took no proceedings therein and were not requested to do so, are not bound by the accounting and may maintain a proceeding to compel the assignee to account again pursuant to the General Assignment Law.</p> <p>The judgment entered in the equitable action only operates to vacate the assignment as to the plaintiff in that action and leaves it valid and binding as to the creditors who were not parties thereto.</p> <p>The provision in section 786. of the Code of Civil Procedure that, where an action is brought for the collective benefit of the creditors of a person, or for. the benefit of a person or persons other than the plaintiff who will come in and contribute to the expense of the action, notice requiring the creditors or other persons to exhibit their demands or otherwise to come in, must be published as there directed, is applicable to an action brought under section 7 of the Personal Property Law, and unless it is complied with or some sufficient notice is given, or other interested persons are in some manner given their day in court, the judgment therein will not bind them and they will not be concluded by it.</p> <p>BemMe, that it is not' usual to allow commissions and expenses to an assignee for the benefit of creditors, where the assignment has been held void and set aside for fraud.</p>

Appeal by Bird S. Coler, as comptroller of the city of New York, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 15th day of April, 1901, reversing an order assessing a transfer tax upon certain legacies bequeathed to the respondents.

Appeal by the plaintiff, the Montauk Association, from a judgment of the. Supreme Court in favor of the defendants, entered in the office of the.clerk of the county of New York on the 12th day of November, 1900, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint upon the merits.

<p>Appeal by the defendant, Gustav A. Recknagel, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 4th day of March, 1901, upon the decision of the court rendered after a trial before the court without a jury at the Hew York Trial Term.</p>

<p>Cross-appeals by the plaintiffs, Laura Verity and another, and by the defendants, Maud M. Sternberger and another, from a judgment of the Supreme .Court, entered in the office of the' clerk of the county of Mew York on the 5th day of July, Í900, foreclosing a mortgage and directing a sale of the premises therein described.</p> <p>The mortgage, to foreclose which the action is brought, purports to have been given to secure the payment of $10,000. The judgment declares it enforcible only to the extent of $4,000. The plaintiffs appeal upon the ground that the. mortgage should have been declared enforoiblei to the full extent of $10,000, and the defendants, Maud M. and Minnie H. Sternberger, appeal upon the ground that it should have been declared usurious and void.</p>

Appeal by the plaintiff, Robert Flaherty, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 17th day of January,, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Hew York-Trial Term. The action was brought to recover $50,000 for an alleged breach of contract.

Appeal by the plaintiff, Thomas J. Cosgrove, as assignee for the benefit of creditors of Thomas J. Brennan, 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 15th day of November,, 1900, upon the verdict of a jury. This is an action for conversion.

<p>An application to be made a party plaintiff, in an action brought in behalf of all persons in interest, denied for laches.</p> <p>Where a stockholder of a railroad company brings an action, in behalf of himself and ail other stockholders of said company similarly situated, who may come in and contribute to the expense of the action, to set aside a sale of the property of the railroad company under a decree of foreclosure, another stockholder of the corporation who, with knowledge of all the facts, has acquiesced in the conduct of the litigation by the plaintiff for nearly ten years, and until the Statute of Limitations has run against his right to maintain an independent action for the same relief, will not be made a party plaintiff upon his own motion, especially where he offers no explanation of his delay and does not show any change in the attitude of the plaintiff with respect to the conduct of the action which renders it essential that he be made a party in order to protect his rights.</p>

<p>Appeal by the defendant, Harrison B. Washburne, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 6th day of May, 1901, denying the defendant’s motion for a bill of' particulars.</p>

Appeal by the defendant, The Prudential Insurance Company of America, 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 9th day of July, 1900, upon the decision of the court rendered after a trial at the New York Special Term, reforming the policy of insurance set forth in the complaint by striking therefrom the words “ unto the executors, administrators or assigns of the person named as the…

Appeal by the plaintiffs, Kussell W- McKee and others, from an interlocutory judgment of the Supreme Court in favor of the defendant John C. Jessup, entered in the office of the Clerk of the county of Hew York on the 5th day of December, 1900, upon the decision of the court, rendered after a trial at the Kew York Special Term, sustaining said defendant’s demurrer to the amended complaint.

<p>Appeal by the plaintiff, Phineas 0. Kingsland, from an interlocutory judgment of the Supreme Court in favor-of the defendant, entered in-the office of the clerk of the county of New York on •the.27th day of April, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the 'plaintiff’s demurrer to. the second separate defense and counterclaim contained in the answer._ ■</p> <p>The action is brought on an assigned cause of action, to recover taxes and water rates which were alien upon the premises described in the complaint when the same were conveyed by defendant to plaintiff’s assignor, Beverley Ward, and is based upon a covenant in the deed to the effect that the premises were free and clear of all incumbrances except certain mortgages therein specified. The demurrer is upon the ground that the second separate defense and counterclaim contained in the answer is insufficient in law upon the 'face thereof.” The part of the answer to which the demurrer is directed shows that the transfer of the premises by defendant to plaintiff was pursuant to an agreement in writing, which is set out in full, and by which plaintiff’s assignor was at the same time to transfer to defendant the premises known as Nos. 215 and 217 West Thirty-fourth street. It is then alleged:</p> <p>“VIII. That the said Beverley Ward stated and represented to this defendant that the premises in West 34th street which he had agreed to exchange with this defendant for the premises in 104th street were fully rented, and were rented to responsible parties, and the assurance that said premises were fully rented to reputable and responsible persons was part of the consideration to the defendant for the exchange with said plaintiff of the premises owned by the defendant in 104th street.</p> <p>“ IX. That after the defendant came into possession of the premises Nos. 215 and 217 West 34th street, he ascertained that said premises were not fully rented as represented, and were not rented to reputable and responsible parties, but on the contrary to persons who were not financially responsible.”</p> <p>It is further alleged that the damages sustained by defendant by loss of rentals amounted to $1,650, which loss occurred prior to the assignment by said Ward to plaintiff.</p> <p>The agreement pursuant to which the deeds were executed expressly provided for an apportionment of the rents and that each party was to convey subject to “ the leases to tenants in possession,” and it contained no guaranty or representation on the part of either with reference to the tenants.</p>

<p>Slander—a statement that a journal is not a daily newspaper, that legal notices published, therein would be void, and an affidavit thereof not accepted, is not actionable per se — it relates to the paper and not to the agent — damage from, loss of business must be pleaded.</p> <p>A statement that a newspaper was not a daily newspaper within the meaning of section 1678 of the Code of Civil Procedure, and that the publication of a legal notice therein would be null and void, and that an affidavit of such publication would not be received in court, is not actionable per se as to a person engaged in the business of soliciting, legal notices and advertisements for such newspaper; consequently the agent must show special damages resulting from the . statement in order to maintain an action for slander thereon.</p> <p>In such an action the plaintiff is not entitled to recover damages for loss of business unless it is specially pleaded.</p> <p>Semble, that the slander was of the newspaper rather than of the soliciting agent.</p> <p>Patterson, J., dissented.</p>

Appeal by the defendant, the New Home Sewing Machine Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of April, 1901, denying the defendant’s motion to vacate an order theretofore granted in the action for the examination before trial of one George W. Albright,- as a witness for the plaintiff.

Appeal - by the defendants, Robert H. Thompson 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 11th day of April, 1900, upon the verdict of a jury, and also from .an order entered in said clerk’s office on the 16th day of April, 1900, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Eugene K. Smith, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 24th day of December, 1900, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, John Grant Lyman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1901, denying said defendant’s motion to vacate a warrant of attachment issued against his property.

<p>Action for an accounting—it may properly embrace transactions on contract and in tort — it may ask judgment against the defendant individually and as executor . and as trustee.</p> <p>In a suit in equity for an accounting it is proper to bring in all the parties to be affected thereby, and to set forth such facts germane to the accounting as will give to the plaintiff adequate and complete relief.</p> <p>The complaint in an action brought by the plaintiff individually and as administrator of his sister alleged that the defendant was the executrix of his father’s will, and was also trustee of certain real property of which the plaintiff and his sister were the beneficiaries; that in 1887 the defendant satisfied an outstanding mortgage for 8600 upon the trust estate; that she falsely represented to the plaintiff that the rents and profits collected by her from the premises were insufficient to satisfy the mortgage, and that there were certain other expenses and liens upon the property, and that she had been obliged to advance the sum of §1,200 upon the property out of her own estate; that by reason of such representations she induced the plaintiff to execute to her a mortgage upon the property for the sum of §1,200.</p> <p>The defendant was sued individually and as executrix and trustee, and the relief demanded was an accounting of the estate, and that the plaintiff be adjudged to be the owner of the mortgage executed by him.</p> <p>Scld, that the complaint was not demurrable upon the ground that two causes of action were improperly united therein, namely, one on contract to compel the executrix and trustee to account and one in tort to declare the defendant individually a trustee ex maleficio because of an alleged fraud;</p> <p>That the plaintiff properly sought an accounting, not only with respect to the mortgage transaction, but one which would cover the entire trust period during which the defendant had managed the estate, and that relief was properly asked against the defendant in each capacity in which she was made a party.</p>

Appeal by the plaintiff, Jennie Levene, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 28th day of February, 1901, reversing an order of the General Term of the City Court of the city of Rew York* and affirming an order, of the Special Term of said City Court.

Appeal by the defendant, the Aultman & Taylor Machinery 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 19th day of February, 1901, upon the verdict óf a jury, and also from an order entered in said clerk’s office on the 5th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Marketable title — affidavit sufficient tó sustain a service by publication — mailing a copy summons in care of the sisters of the defendant so served—short notice of entry of judgment—procuring a guardian ad litem for a defendant who has appeared — refusal to give the purchaser possession.</p> <p>An affidavit, made by a clerk in the office of the attorneys for the plaintiff in an action to foreclose a mortgage, which alleges that a brother of one of the defendants had testified that he did not know where the latter was; that he had ■ not heard from him for over two years; that he believed that his brother was at Cape Nome, Alaska; that his sisters were in communication with him and that a letter addressed to the said defendant in the care of his said sisters at No. 3 East Forty-first street, borough of Manhattan, would be forwarded to him; that said defendant is not a resident of the State of New York, and that the plaintiff has been unable, with due diligence, to make personal service of the summons upon him, and that, from the information received from the • sources stated, he verily believes that the plaintiff will be finable with due diligence to make such service, is sufficient to confer jurisdiction upon the court to grant an order directing service of the summons upon such defendant by publication.</p> <p>The fact that the order for service by publication directed that the summons be mailed addressed to the defendant at No. 3 East Forty-first street, New York city, in care of his sisters (who as alleged by the purchaser were well known to be hostile to the plaintiff’s claim, although no proof was given in support of that allegation), is not an objection to the validity of the order, as the court would have been justified in dispensing with the mailing entirely; - nor is the fact that the attorney for certain of the defendants received five instead of eight days’ notice of the application for judgment, where it appears that a copy of the judgment was served on the attorney, who admitted service thereof, that a notice of sale was also served upon him and service admitted, and that he was present at the sale.</p> <p>The sale is not rendered defective because the plaintiff, as an extra precaution, procured the appointment of a guardian ad litem for a defendant who appeared in the action.</p> <p>The purchaser is not entitled to be relieved from his purchase because one of the defendants in the action refused to yield immediate possession of the premises.</p>

Appeal by the relator, Otto Stutzbach, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on- the 29th day of March, 1901, denying the relator’s motion for a peremptory writ of mandamus. '

Appeal by the defendant, the Irving National Bank, 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 8th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of February, 1901, denying .the defendant’s motion fora new. trial made upon the minutes.

<p>Loan association —organized under chapter 326 of 1895—it cannot ban at inter-" est in excess of six per cent to a resident of Westchester county on chattels therein.</p> <p>Chapter 326 of the Laws of 1895, authorizing the formation of corporations with power to loan money to indigent persons at a rate of interest greater than six per cent per annum, which by chapter 206 of the Laws of 1896 was made inapplicable to the counties of Monroe and Westchester, only authorizes a corporation formed thereunder to make loans to persons within the county in which the corporation is situated; it does not authorize the corporation to loan money to a person residing in the county of Westchester upon the security of a mortgage upon chattels situated in that county.</p>

<p> Implied warranty on the sale of goods—plea, of a failure of consideration arising out of a failure of title. </p> <p>In every sale of goods or other property, even though the contract be in writing, there is an implied warranty of title unless it is otherwise expressly stipulated, and the recovery of the goods from the purchaser, by the true owner in a judicial proceeding, constitutes a failure of title and of consideration which is a good defense to an action for the purchase price.</p> <p>The complaint in an action brought upon an agreement- under seal entered into between the plaintiffs, composing the firm of J. S. Forgotston & Co., and the defendant, Irving F; Cragin, recited the making of an agreement between the Silver Metal Company and J. S, Forgotston & Co. relative to the manufac- . ture and the making of advances on merchandise^ and that, pursuant to such agreement, J. S. Forgotston & Co. had made advances and that goods had been delivered to Irving F. Cragin. It further recited that, in consideration Of one dollar by each to the other in hand paid, the parties agreed that “the said goods are to be in the absolute control of said Cragin, and the said J. S. Forgets ton & Company transfer to said Cragin all their right, title and interest therein, and the proceeds thereof, and in consideration thereof said Cragin agrees to pay to said J. S. Forgotston & Company the sum of §175.00 within ninety days from the date hereof.”</p> <p>The answer set forth the contract between J. S. Forgotston & Co. and the Silver Metal Company, and alleged that Cragin purchased the merchandise in question of the Silver Metal Company upon its representation that it had a perfect title thereto; that J. S. Forgotston & Co. subsequently represented to him that they had the title to said merchandise, and that the agreement upon which the action was brought was executed by the defendant upon the faith of these representations. The answer further alleged that the merchandise in question - was not owned by either the plaintiffs or by the Silver Metal Company,, but by a third party, who, prior to the commencement of the action, had recovered possession thereof in an action of replevin.</p> <p>Held, that the answer sufficiently set up the defense of failure of consideration.</p> <p>O’Brien, J., dissented.</p>

<p>Appeal by the relator, Michael Brennan, from an order of the Supreme Court, bearing date the 29th day of April, 1901, and entered in the office of the clerk of the county of New York, denying the relator’s motion for a peremptory or alternative writ of mandamus.</p> <p>On the 6th day of December, 1900, the respondent, by an order in writing, appointed relator to the position of hose repairer in the fire department repair shops without compensation until the funds of the department would justify the payment of three dollars and fifty cents a day, such appointment to take effect, on the day following. Relator entered upon the performance of the duties pursuant to the appointment and wox-ked in that capacity until the 13th day of December, 1900, when he received a communication from the respondent in writing revoking. the appointment but assigning no reason therefor. The relator made a written demand for reinstatement upon the ground that his removal was unlawful and irregular. The affidavit of the relator upon which the motion for the writ was made shows, among other things, that pursuant to the provisions of •chapter 370 of the Laws of 1899, entitled “An act in relation to the ■Civil Service of the State of New York and the Cities and Civil Divisions thereof,” the State Civil Service Commission duly adopted ■certain civil service rules and regulations for the city of New York, which became of force and effect on the 11th day of July, 1899, rule 42 of which provides as follows:</p> <p>“ To secure compliance with the provisions of the civil service law prohibiting removals because of political opinions or affiliations, no removal of any person in the classified service of the City of New York shall be valid unless and until a statement of the causes •of such removal shall be filed with the Municipal Commission, and a copy óf the same furnished to the person sought to be removed, and until such person has been afforded an opportunity to present an explanation in writing.”</p> <p>The .moving affidavit further shows that the position of hose repairer to which relator was appointed is within the classified service of the city of New York, and that no statement of the cause of his removal has been filed with the municipal commission, and no copy "thereof has been furnished to him, nor has he been afforded an opportunity to present an explanation as provided .in said rule ; that he has no other remedy and that he desires reinstatement. The return shows no denial of any material allegation, but alleges that said rule is invalid. The relator, is not an honorably discharged soldier or sailor.</p>

Appeal by Arabella D. Huntington and others, as executors, etc., of Collis P. Huntington, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of April, 1901, substituting George E. Spencer in the place and stead of the original plaintiff, and directing that the action be continued in the name of the said George E. Spencer, as plaintiff, and Arabella D. Huntington and…

Appeal by the plaintiff, Louis V. Southaok, 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 9th day of May, 1901, granting the motion of the defendants Eugene Southack and others to strike the cause from the calendar.

<p>Attachment — what must be stated as to damages — measure of damages for a breach of a contract for the future delivery of goods.</p> <p>Section 636 of the Code of Civil Procedure, providing that in order to entitle the plaintiff in an action to recover damages for a breach of contract to a warrant of attachment “ the affidavit must show that the plaintiff is entitled to recover a sum stated therein over and above ail counterclaims known to him,” requires that the affidavit set out the evidence upon which the plaintiff relies to prove his damages.</p> <p>"Where the action is brought upon a contract of sale of goods for future delivery the measure of damages, ordinarily, is the difference between the contract price and the market value of the article at the time and place where it should have been delivered. A statement in the affidavit on which the attachment is granted, ■ that the plaintiffs, in reliance upon the contract, sold the goods for future delivery for §9,060.20 in advance of the price which they had agreed to pay the defendant therefor, does not comply with the requirement of the Code as that sum is not the correct measure of damages — unless it appears that there was no market price for the article at the time and place of delivery; in which case such measure of damages might apply.</p> <p>Patterson, J., dissented.</p>

Appeal by Charles E. Eickhoff and another from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York ón the 7th day of January, 1901, denying their , motion to set aside a judgment theretofore entered in the action, to be admitted as parties, to the action, and to be restored to the possession of the real property mentioned in the complaint.

Appeal by the Maine Steamship Company and another from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on‘the 26th day of December, 1900, confirming the report of commissioners of estimate and assessment.

<p>Appeal by the defendant,' William F. Grell, as sheriff of the county 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 New York on. the 29th day of October, 1900, upon the verdict of a jury rendered by direction of the court, and also from án order entered in said clerk’s office on the 8th day of November, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Clarence J. Thompson, an infant, by Ida M. Roode; his guardian ad litem from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of June, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiffs, Philip Horowitz 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 22d day of April, 1901, overruling the plaintiffs’ objections to the form of the undertaking given by the defendant on arrest, and approving such undertaking.</p>

<p>Alimony — arrears of, are not provable in or released by proceedings in bankruptcy.</p> <p>Arrears of alimony, accruing before the filing of a petition by, or the granting of a discharge in bankruptcy proceedings instituted by the husband under the Federal Bankruptcy Law, do not constitute a debt. provable in the bankruptcy proceedings and are not covered by the discharge issued therein.</p>

Appeal by the defendants, The Hew York and Harlem Railroad Company 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 27th day of June, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by George W. Maslin and others, purchasers upon a sale in foreclosure of a mortgage, 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 10th day of April, 1901, directing them to pay to the referee in -the action for the use of the respondent the sum of $28,114.20, with interest and costs, to discharge certain coupons secured by the mortgage in question.

<p>Elevated railroad in Pande avenue, New York city — extent of the right of the New York and Han'lem Bail/road Company to use Park avenue — measure of damages — scope of an injunction.</p> <p>The Harlem Railroad Company, by the condemnation proceedings instituted against one Benson, in 1833, acquired a strip twenty-four feet wide in the center of Park avenue, in the city of New York, with the right (so far as that strip was concerned) to place its railroad tracks upon the surface of the street, or to depress them or to place them upon the present viaduct. Per McLaughlin, J,</p> <p>The railroad company also acquired a prescriptive right to occupy so much of the avenue as it used and occupied for railroad purposes from 1873 until February 16, 1897, when the construction of the present viaduct was commenced. Per McLaughlin, J.</p> <p>The damages which an owner of property abutting on Park avenue sustained by the erection of the present viaduct are the value of the easements of light, air and access, which have been impaired by that part of the structure placed or erected upon that portion of the avenue lying outside of the twenty-four-foot strip, and this only to the extent that the use to which this portion of the avenue has been put, is in excess of or different from that to which it was subjected and used from 1873 to 1897. Per McLaughlin, J.</p> <p>The injunction granted in the action to recover such damages should not restrain the defendants from maintaining that part of the viaduct which is located on the twenty-four-foot strip. Per McLaughlin, J.</p>

Appeal by the plaintiff, Harry L. Bloodgood, as administrator, etc., of John Bloodgood, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of May, 1901, vacating an order for the examination of the defendant before trial and for an inspection of certain books and articles of copartnership.

<p>Will — a trust to pay a mwtgage from income held to be invalid — other clauses of the will not contingent thereon construed and sustained.</p> <p>The will of a testator bequeathed his real and personal estate to his executors, to hold the same during the life of his daughter Rosana, upon trust, to invest the personal estate in bonds and mortgages and to lease the real estate and collect the income thereof, and to apply the same as follows:</p> <p>“ Mrst. I direct my said Executors to pay unto my daughter Rosana, wife of Lawrence O. Hafner, out of said net income, the sum of Fifteen hundred Dollars annually, in equal quarterly payments, until the mortgages now liens, or which may be liens upon my real estate, shall-be fully paid and discharged as hereinafter mentioned.</p> <p>. “ Second. I direct my said Executors to pay out of said income, unto my granddaughter, Loretta Donlon, the sum of One thousand Dollars annually, in equal quarterly payments, until the aforesaid mortgages shall be fully paid and discharged as hereinafter provided.</p> <p>“ Third. I direct my said Executors to pay out of the said income unto my daughter-in-law, Margaret McCabe, widow of my deceased son Eugene, the sum of Three hundred and sixty Dollars annually, in equal monthly payments, during the continuance of the trust herein created and so long as she shall remain unmarried.</p> <p>“ Fourth. I direct my said Executors to set apart out of the said income the sum of Fifteen hundred Dollars annually and to apply so much thereof from time to time as in their judgment shall be necessary and requisite for the sup-port, maintenance and education of my three grandchildren, viz., Francis, Agnes and Isabella, children of my deceased son Eugene, during their minority, and to pay over .any surplus thereof remaining unexpended when the youngest of my said grandchildren shall attain the age of Twenty-one years unto my said grandchildren then living, equally, share and share alike; and, upon my said youngest grandchild attaining the' age of Twenty-one years, thereafter to pay the sum of Fifteen .hundred Dollars annually to my said grandchildren, to be divided between them equally, share and share alike.</p> <p>“Fifth. All the rest, residue and remainder of said income, except as hereinafter provided, I direct my said Executors to apply to the payment and discharge of such bonds and mortgages as may be liens upon any of the real estate of which I may die seized until all such mortgages shall be fully paid and discharged to the end that all the said real estate shall be free, clear and unencumbered of and from all liens.</p> <p>“ Sixth. After the aforesaid bonds and mortgages shall be fully paid and discharged, as provided in the preceding section, then I direct my said Executors to divide the said rest, residue and remainder of said income annually into three equal parts, and to pay one equal third part thereof unto my daughter Eosana, wife of Lawrence C. Hafner, for and during her life; to pay one other third part thereof unto my granddaughter, Loretta Donlon, and to divide the remaining third part thereof between my three grandchildren, Francis, Agnes and Isabella, equally, share and share alike; and if either of my said grandchildren shall be under the age of Twenty-one years, then I direct my said Executors to retain the share of such grandchild and to invest the same until he or she shall attain such age of Twenty-one years, and thereupon to pay such share of said income, with all accumulations of interest thereon, unto such grandchild.</p> <p>“After the death of my daughter Eosana, I direct my said Executors to cause my said estate, both real and personal, to be divided into three equal parts as near as may be; and to pay over and allot one of such equal third parts unto the children of my daughter Eosana then living, to pay over and allot one other equal third part unto the children of my deceased son Eugene then living; and to pay over and allot the other equal third part unto my granddaughter Loretta Donlon. If my said granddaughter Loretta Donlon should be deceased at the time of such division, leaving lawful issue, then I give, devise and bequeath the share herein devised and bequeathed to her, to such issue; but if she die without such issue, then I give and devise one-half of such share unto the children of my daughter Rosana, and the other half thereof I give and devise unto the children of my deceased son Eugene.</p> <p>“If either of my grandchildren should die before my daughter Rosana, then I give, devise and bequeath the share herein given and devised unto such deceased child, to its lawful issue, if any, and if there he no such issue, then unto my grandchildren who shall be the brother and sister of said deceased; it being my will that the lawful issue of any deceased grandchild shall in all such cases take the share that his or her or their parent would have if then living.”</p> <p>The testator left him surviving his daughter Rosana C. Hafner, upon whose life the trust was limited; his three grandchildren, Francis, Agnes and Isabella McCabe, children of his deceased son Eugene, and Francis McCabe Brandon, a greatgrandson, who was the son of the testator’s granddaughter, Loretta Donlon. Loretta Donlon' died before the testator, leaving her surviving her husband, Thomas F. Brandon, who was appointed her administrator, and her-child, Francis McCabe Brandon. The latter died in infancy, leaving him surviving his father, Thomas F. Brandon, who was his only heir at law and next . of kin, and who was also appointed his administrator.</p> <p>Held, that the 5th clause relating to the payment of the mortgages was void, and that as the 1st, 2d and 4th clauses were inseparably connected with the 5th clause, they also fell with it;</p> <p>That the 3d clause, providing for the payment of the annuity to the widow of Eugene McCabe, remained in force;</p> <p>That the 6th clause became operative upon the testator’s death, and that the rest, residue and remainder of income referred to in that clause might be regarded as the whole net income remaining after the payment of the annuity to the widow of Eugene;</p> <p>That Thomas F. Brandon .was entitled to so much of one-third of the income passing under the 6th clause as accrued during the life of his infant son, Francis McCabe Brandon, and that after the death of Francis McCabe Brandon the income derived from that third passed to the presumptive owners of the next eventual estate;</p> <p>That the interest of Loretta Donlon Brandon and of her son, Francis McCabe Brandon, was contingent upon her or his surviving Mrs. Rosana C.'Hafner, and that, consequently, the owners of the next eventual estate were the children of Mrs. Hafner'and of Eugene McCabe;</p> <p>That Thomas F. Brandon, as administrator "or heir at law of his son, Francis McCabe Brandon, or as administrator of his wife, Loretta Donlon Brandon, had no interest in the principal of the testator’s estate or in the income of the estate which accrued after the death of Francis McCabe Brandon.</p>

Appeal by the defendant, Patrick McKenna, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of April, 1901, denying his motion to vacate and set aside a judgment and the execution issued thereon.

Appeal by the plaintiffs, Cordelia D. Ohauvet and another, and by the defendant, Margaret Seaman Ives, from a judgment of thé Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 13th. day of February, 2901, upon the decision of the court rendered after a trial at the Hew York Trial Term, a jury having been waived.

Appeal by the relator, David Pumpyanslcy, 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 April, 1901, denying the relator’s motion for a peremptory writ of mandamus.

<p>Indictment, sufficient against am, accessory—evidence showing absence of criminal intent—jproof as. to good eha/racter—qualifications of an impeaching witness.</p> <p>A joint indictment against Henry Seldner, Alexander Muller and Herman Cohen, ■which charges Muller and Cohen with obtaining a conveyance of certain real and personal property from one Engisch by false and fraudulent representations . that Muller was the owner of certain property conveyed to Engisch in return for his property, and which alleges that Seldner, at the time of committing the felony and larceny therein above described, “ was then and there willfully and feloniously concerned in the commission of the same, and did then and there willfully and feloniously aid and abet in the commission of the said felony and larceny,” and which closes with the charge that Seldner, Muller and Cohen, “ in the manner and form aforesaid, by the means aforesaid, the said proper goods, chattels and personal property of the said Christian Engisch, then and there feloniously did steal against the form of the statute in such case made and provided,” is sufficient as against Seldner.</p> <p>If the facts constituting the crime are alleged, it is not necessary to allege the acts and things claimed to constitute the aiding and abetting.</p> <p>"Where Seldner, who was an attorney, testifies upon the trial that his only connection with the transaction consisted in his examination of a search of the property conveyed to Engisch and a representation that such search appeared to give Muller a good title, it is error to exclude the search, under the - general objection of the district attorney, as the search is competent in connection with Seldner’s testimony to show absence of criminal intent.</p> <p>It is also error to exclude proof offered by the defendant as to his previous good character and reputation for honesty and integrity, especially where the evidence presents a sharp question of fact depending upon the credibility of the People’s witnesses or of the defendant.</p> <p>The rule that evidence to impeach a party or witness may he excluded, unless it is shown that the impeaching witness knows the general reputation of the party or witness sought to he impeached from the speech of people who are acquainted with him in the community where he resides or transacts business, does not apply to witnesses called to establish or sustain character.</p>

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of October, 1900, upon the verdict of a jury for $3,000, and also from an order entered in said clérk’s office on the 18th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

. Appeal by the defendant, Henry Heide, from a judgment of the ■Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew Yqrk on the 31st day of January, 1901, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 6th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James Mitchell, 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 20th day of December, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the Metropolitan Street Railway 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 3d day of May, 1901, striking out as redundant the 4th paragraph of the defendant’s answer.

<p>Ma/p, delivered with a deed, as evidence of intention — what constitutes adverse possession of a leach on the Atlantic oceam.</p> <p>A map of premises conveyed by a deed, delivered by the grantor in connection with the deed, is competent evidence of the intention of the parties to the deed.</p> <p>Evidence given in an action of ejectment involving the title to land on the shore of the Atlantic ocean at Rockaway Beach, Long Island, tending to show that the plaintiffs and their predecessors in title had for more than twenty years been in possession, claiming title founded upon a written instrument, and, during that time, had built wharves and boat and bath houses and other structures on the shore and had cut hay from the marshes, is sufficient to warrant a finding that they had acquired title to the premises by adverse possession, although they had not attempted to fence or cultivate the premises.</p>

<p>Appeal by the defendant, Isaac Brauer, from a judgment of the Municipal Court of the city of New York, borough, of Brooklyn, in favor of the plaintiff.</p>

<p>Common carrier — Tie assumes liability as an insurer and as a bailee — restrictions on Ms liability in a bill of lading — presumed to relate to Ms liability as an insurer.</p> <p>Conditions of bills of lading or other contracts intended to limit the liability of a common carrier are to be construed strictly against the carrier.</p> <p>A common carrier has two distinct liabilities; one for losses, by accident or mistake, where he is liable as an insurer, the other for losses by default or negligence, where he is answerable as an ordinary bailee.</p> <p>Provisions in a bill of lading issued by a railroad company, intended to limit its liability for loss or damage to the goods carried, will, unless otherwise expressly stipulated, be construed to relate to the carrier’s common-law liability as an insurer and not to his liability as a bailee for hire.</p> <p>Where a consignment of granite is shipped by rail under a bill of lading, which states, ‘ ‘ Valuation Restricted to 40 cts. per Cubic foot,” and provides, “ The amount of any loss or damage for which any carrier becomes liable shall be computed at the value of the property at the-place arid time of shipment under this bill of lading, unless a lower value has been agreed upon or is determined by the classification upon which the rate is based, in either of which events such lower value shall be the maximum price to govern such computation,” and which does not contain any suggestion that the railroad company is to be relieved from its obligation as the bailee of the goods, the limitation upon its liability will be construed to relate to its liability as an insurer, and in the event of the granite being damaged through the failure of the railroad company to exercise the degree of diligence incumbent upon it as a bailee for hire, the recovery of the consignee is not limited by the restrictions contained in the bill of lading.</p>

Appeal by the plaintiff, Ora M. Jewell, from a judgment of the Supreme. Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 4th day of December, 1900, upon the decision of the'court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

<p>Devise of real property subsequently condemned — the proceeds thereof, in the hands of the former owner at the time of her death, do not pass to the devisee of the land.</p> <p>Where real property is taken in condemnation proceedings and the owner receives the award and deposits it in a hank subject to her order, appropriates some of the moneys to her own use and dies two years thereafter, the fact that by her last will and testament, which was executed several years prior to the institution of the condemnation proceedings, the owner gave, devised and bequeathed the real estate in question to her daughter and to her heirs and assigns forever, does not entitle the devisee to the bank deposit.</p>

Appeal by the plaintiff, Henry J. Haigh, Jr., from a judgment of the Municipal Court, city of Hew York, borough of Brooklyn, second district, in favor of the plaintiff rendered on the 14th day of December, 1900, upon the decision of the court. The appeal is taken because of the refusal of the justice to insert in the judgment and the transcript the words “ defendant liable to arrest and imprisonment on execution.”

Appeal by the defendant, Charles F. Bolger, from a judgment of the Municipal Court, city of Hew York, borough of Brooklyn, in favor of the plaintiff, rendered on the 15th day of Hovember, 1900, upon the decision of the court.

<p>Appeal by the defendant, Bernard Kreizer, 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 18th day'of October, 1900, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 23d day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, the Roscoe Lumber Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 12th day of September, 1900, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Jacob A. Mittnacht, as substituted trustee under the last will and testament of Frances A. Croft, deceased, 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 Westchester on the 31st day of July, 1900, amending a final decree in favor of the plaintiff entered in said clerk’s office on the 9th day of February, 1900.

Appeal by the Comptroller of the State of Mew York and others from an order of the Surrogate’s Court of thé county of Westchester, entered in said Surrogate’s Court on the 11th day of May,. 1901, declining to appoint the county treasurer of the county of Westchester an appraiser, as provided by chapter 173 of the Laws of 1901, on the ground that said act is unconstitutional, and appointing John F. Lambden the transfer tax appraiser in the proceeding.

<p> Insurance covering property in another State—an answer in an action thereon which begs leave to refer to the policy on the trial—no presumption as to the policy conforming to the New Torh standa/rd where the defendant does not put it in evidence. </p> <p>Where the answer interposed in an action to recover upon a Lloyds policy of Are insurance, issued by a company doing business in the State of New York, “begs leave to refer to the policy therein mentioned, upon the trial of this action,” for “ greater certainty and for the terms and conditions upon which such insurance was effected,” and the defendants omit to put the policy in evidence, the defendants must be deemed to have waived that privilege and to admit the contract as set forth in the complaint.</p> <p>The court will not presume that a policy of insurance which covers property in the State of Missouri is a New York standard policy.</p>

<p>Husband and wife — a divorce in Massachusetts for cruelty, against a husband served in New York — it dMS not prevent the wife’s recovering dower in land subsequently acquired by the husband — it may be recovered in land held for him under a passive bi'ust by a third person.</p> <p>Where a man and woman who were married in the State of Massachusetts, of which State the woman was then a resident, move to the State of New York, and the wife subsequently leaves the husband and returns to the State of Massachusetts and, after remaining there six years, obtains in that State a decree of divorce from her husband on the ground of extreme cruelty, by service of process on the husband personally in the State of New York where he still resided, such decree of divorce does not deprive the wife of her right to dower in property situated in the State of New York, acquired by the husband after the decree of divorce was rendered, notwithstanding that the husband acting on the faith of the decree contracted a second marriage in the State of Pennsylvania.</p> <p>Semble, that even if the decree rendered by the Massachusetts court were binding upon the wife in the State of New York, it would not have any greater effect upon her right of dower than a valid limited divorce procured by her in the State of New York for the same cause.</p> <p>A wife is entitled to dower in lands conveyed to a third person and declared by him to held in trust for the benefit of the husband, his heirs and assigns.</p> <p>Semble, that the trust thus created is a mere naked trust, and that the absolute fee .of the premises vests in the husband.</p> <p>Goodrich, P. J., dissented.</p>

<p>Evidence — action for breach of contract of employment—the master may not show the terms of employment of other servants.</p> <p>In an action by an employee' against bis employer to recover for an alleged breach of the contract of employment, in which the sole question litigated was whether the plaintiff’s employment was for a certain period or by the week, the defendant is not entitled to show the terms under which his workmen, other than the plaintiff, were employed.</p>

Appeal by the defendant, Samuel Green, 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 24th day of January, 1898, upon the report of a referee^

Appeal by the defendant, The American Wringer Company, from a judgment of the Supreme Court in' favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 11th day of October, 1900, upon the report of a referee.

<p>Beal estate agent’s commissions — evidence that the agent was the procuring cause of the sale.</p> <p>In an action to recover commissions alleged to have been earned by the plaintiff in procuring a purchaser of the defendant’s real estate, it appeared that the defendant employed the plaintiff to take charge of, and to sell, the property for $7,000; that the plaintiff posteda signreading, “For Sale or To Let, Apply to William D. Palmer” (the plaintiff); that he opened negotiations for the sale of the property with one Underhill, who offered him $5,500; that the plaintiff refused the offer, and that Underhill applied to the defendant, who sold him the property for that sum; that the defendant wrote a letter to the plaintiff stating that she had sold the property, and that “of course I am to pay you the commission of percentage allowed you by law; * * * you had charge and keys of the place, the reward is due to you, even if I had the most trouble for the purchasing.”</p> <p>5eld, that the evidence was sufficient to require the submission to the jury of the questions of the plaintiff’s employment by the defendant, and whether or not the plaintiff was the procuring cause of the sale.</p>

Appeal . by the plaintiff, Mary A. Fero, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 24th day of October, 1900, upon the decision of the court, rendered after a trial at ■ the Steuben Special Term, sustaining a demurrer to .the complaint.

Appeal by the defendant, C. R. Remington & Son Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 13th day of October, 1900, upon the verdict of a jury for $5,650, and also from an order entered in said clerk’s office on the 17th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, O. R. Remington & Son Company, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of. Jefferson on.the 10th day of December, 1900, denying the defendant’s motion to reduce the plaintiff’s costs in the action.

Appeal by the defendants, William Miller Collier and others, constituting the Civil Service Commission of the State of Hew York, from an order made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the' 29th day of March, 1901, directing the issuance of a peremptory writ of mandamus against the defendants to compel them to certify the salary of the relator for the month of January, 1901, upon the payroll of the treasurer of Erie county.

<p>Water company franchise—right of village trustees to grant it — the company can-riot, as a defense to the performance of conditions, set up- want of authority in the trustees—duty to detach existing hydrants—judgment of forfeiture of franchises, giving an opportunity to comply with the conditions.</p> <p>Section 81 of the Transporation Corporations Law (Laws of 1890, chap. 566), giving authority to the board of trustees of any incorporated village “to contract in the name and behalf of the municipal corporation of which they are officers, for the term of one year or more, for the delivery by such company to the town, village or city, of water through hydrants or otherwise, for the extin- . guishment of fires and for sanitary and other public purposes,’’.authorizes the board of trustees of such a village to make a contract, embodied in resolutions passed by it, by which they grant to two designated persons the right to install a system of water works in its streets and use existing hydrants owned by the village upon condition that such hydrants, together with additional ones to be thereafter erected, should be connected with the system so constructed and that for the use of the water for fire protection the village should pay annually to such persons the sum of $250 for a period of five years with the right to a renewal at that price at the expiration of said time and that in case of a failure to complete the system by the specified time “this grant, franchise or privilege"be null and void and of no effect.”</p> <p>A corporation, to whom the persons mentioned in the resolution assigned their interest and which has availed itself thereof by installing its system of water works in the streets, but has neglected to connect the village hydrants with its system, cannot repudiate its liability to make such connection by asserting want of authority in the trustees to grant the franchise.</p> <p>The obligation of detaching the existing village hydrants from the old system is imposed upon the corporation'.</p> <p>In.the event of the refusal of the corporation to connect the existing village hydrants with its system by the time mentioned in the resolutions for the completion of the work, although it is practicable and feasible to do so, the court is justified in declaring the franchise terminated, and the corporation cannot ‘ in such a. case complain if the court,, in an action brought by the' village to declare the resolutions null and void because of such failure, gives it the right to specifically perform its contract.</p>

Appeal by the defendant, the Village of Port Leyden, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Lewis on the 8th day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of December, 1900, denying the defendant^ motion for a new trial made upon the minutes.

<p>Motion by thé City of Buffalo for a writ of certiorari, to be addressed to the common council of the city of Buffalo, to return. all matters upon which it acted in laying out Delavan avenue in said city.</p>

Appeal by the plaintiff, The Gunning System, 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 Erie on the 3d day of May, 1901, denying the plaintiff’s motion to continue an injunction pendente lite.

Appeal by the defendant, the American Brewing Company, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 16th day of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Fred Truby and others, from an interlocutory judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 26th day of ¡November, 1900, upon the decision of the court, rendered after a trial at the Erie County Court, overruling a demurrer to the complaint.

Appeal by the defendant, the Erie .Railroad Company, from so much of an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 20th day of March, 1897, granting defendant’s motion to change the place of trial of this action from the county of Onondaga to Steuben county, as provided that said motion should be granted “ upon condition that if the plaintiff so elects a referee is to be appointed to…

<p>Appeal by the defendant, James "W. Butler, from a judgment of the County Court of Chenango county in favor of the plaintiff, rendered on the 1st day of January, 1900, convicting him of the crime of arson in the third degree.</p>

Appeal by the defendants, John Krank 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 Albany on the 23d day of January, 1901, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, the Cortland Home Telephone Company 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 Cortland on the 3d day of October, 1900, continuing a temporary injunction.

Appeal by the defendant, Henry B. Ransom, as executor, etc., •of Charlotte W. Pearl, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 26th day of January, 1901, upon the xeport of a referee.

Appeal by the defendant, Charles O. Potter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 20th day of ¡November, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th day of ¡November, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John M. Davidge and others, as executors, etc., of James Davidge, deceased, 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 Broome on the 14th day of December, 1900, upon the decision of the court rendered after a trial at the Broome Special Term, dismissing the complaint upon the merits.

<p>Election — the duty to indorse and place in a sealed envelope rejected ballots, enforced by mandamus.</p> <p>Where the canvassers of the ballots cast at a town meeting fail to perform the duty required of them by the Election Law, by omitting to indorse upon the backs of ballots rejected as void their reason for such rejection, and by omitting to place these rejected ballots in a sealed package and to file the same with the original statement of the canvass, and by improperly replacing tne void ballots with the others in the ballot box, the'court will, at the instance of the defeated candidate, issue a peremptory writ of mandamus requiring the canvassers to reconvene and publicly take from the ballot box the ballots rejected as void, to indorse upon each the specific reason for its rejection, and to place the same in a separate scaled package and to indorse such package with their names and the number of ballots contained therein, and to file such package together with the original statement, and also requiring the town clerk to bring into court at a fixed lime and place the said original'statement of the canvass, together with the said package of rejected ballots.</p>

Appeal by the defendant, George H. Rogers, from a judgment of the County- Court of Chemung county in favor of the plaintiff, entered in the office of the cleric of the county of Chemung on the 31st day of December, 1900, affirming upon appeal a judgment of the City Court of Elmira granted on the 5th day of June, 1900.

<p>Lis pendens — the right to file it depends on t%e purpose of the action as stated, in the complaint.</p> <p>A motion to cancel a lis pendens on the ground that the action is not "brought to recover- a.judgment affecting the title to or the possession, use or enjoyment of real property,” as is contemplated by section 1670 of the Code of Civil* . Procedure, will be granted only when it appears from the complaint that such is not the purpose of the action.</p> <p>The motion will not be granted where it appears that the action is based upon a contract by which the. defendant agreed to sell to the plaintiff yearly for a period of ten, or at the option of the plaintiff twenty years, a quantity of lumber, and that the plaintiff wishes to impress a lien upon the land in. question, And also to obtain specific performance of the contract, which provides that no sale shall be made by the defendant of the lands described in the lis pendens or the pulp wood thereon which shall “in any way jeopardize or prevent its complete fulfillment and performance of this contract,” notwithstanding that the Appellate Division, upon an appeal from an order granting a temporary injunction restraining the defendant from disposing of the lands, stated that the contract was one relating solely to chattels and in no sense related to realty.</p>

Appeal by the plaintiff, Sampson Ellis, from an order'of the Supreme Court, rpade at the Montgomery Special Term and entered in the office of the clerk of the county of Saratoga on the 28th day of January, 1901, granting the defendant’s motion to change the place of trial of the action from the county of Saratoga to the county of Warren.

Appeal by the plaintiff, Francelia O. Patchen, 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 18th day of February, 1901, overruling the plaintiff’s demurrer to the second defense contained in the defendant’s answer, and also from an interlocutory judgment entered in said clerk’s office on the 23d day of February, 1901, upon said order.

Appeal by the defendant, the Burden Iron 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 23d day of October, 1900, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 19th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Ithaca Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 12th day of December, 1900, upon the verdict of a jury for $1,000, 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.

Appeal by the plaintiff, Thomas Vincent, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 26th day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Clinton Trial Term. The defendant is engaged in designing and building iron and steel bridges.

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

<p>Appeal by the plaintiff, the Sill Stove "Works, from an order of the county judge of the county of Warren, bearing date the 25th day of "April, 1901, and entered in the office of the clerk of the county of Warren, confirming an order, made by the said county judge on the 14th day of March, 1901, which vacated a warrant of attachment theretofore granted by him in favor of the plaintiff against the property of the defendant Charles R. Scott, with notice of an intention to bring up for review said order of March 14,1901, vacating and setting aside said warrant of attachment.</p> <p>On the 26th day of February, 1901, a warrant of attachment was granted by the county judge of Warren county against the property of the defendant Charles R. Scott, in an action brought against him by said Sill Stove Works, which warrant of attachment was delivered to the sheriff of Warren county and was by him levied upon the property of the defendant on the 28th day of February, 1901.</p> <p>The warrant of attachment was based upon an affidavit made by one John S. Sherman, who states “ that he is attorney for the plaintiff in this action.” The material part of the affidavit is as follows: “ That a cause of action exists in favor of said plaintiff against said defendant, for which said action is commenced, or is about to be, and that the amount of the plaintiff’s claim in said action is, and plaintiff is entitled to recover thereon seven hundred and eighty-two 16/100 dollars and interest from the 23rd of ^February, 1901, over and above all counterclaims known to plaintiff, and that the grounds of said claim and cause of action "are, that between June 18th, 1900, and January 25th, 1901, the- plaintiff at the special instance and request of the defendant sold and delivered to said defendant goods, wares and merchandise to the value and agreed price of $1,063.29 dollars*; that no part of the same has been paid except the sum of $281.13; that there is now due and owing and unpaid on said account the sum of $782.16. The deponent had a conversation with the defendant a few days ago and the defendant admitted to deponent that he was indebted to the plaintiff in the amount of about $800, and since he said to deponent that he would pay this claim of the plaintiff. That the defendant is a resident of the State of New York, and that deponent is informed and believes the defendant has assigned, disposed of and secreted property with intent to defraud his creditors, such- information' is based on the facts that he removed a large number of stoves from his place of business in tlie night time so deponent was told by one of the persons who helped to move them ánd place them in storage; that the defendant told deponent that he was insolvent and that he intended to dispose of all the property he could and get all the money out of the business he could before he was closed up. That the deponent has within the past three weeks sold and disposed of, and offered for sale, a large number* amount of. his stock at a great sacrifice, with intent to defraud his creditors. That the defendant has kept himself secreted or concealed as deponent is informed and believes to avoid the service of a summons, That the plaintiff is entitled to recover the sum above stated over and above all counterclaims known to the plaintiff.”</p> <p>On the 14th day of March, 1901, the respondent, Aird Don Com-> pany, upon due notice to the attorney for the plaintiff, obtained an order vacating, and setting aside said warrant of attachment. 'The motion was made upon the papers upon which the attachment was issued, and also upon an affidavit of a deputy sheriff of Warren county, in .which affidavit he stated that the said warrant of attachment was 'delivered to him and that he levied the same on the property of the defendant Scott. Said affidavit also contains the following statement.: “ That heretofore and subsequent to the taking possession of defendant’s property by deponent as above set forth in said attachment proceedings an execution'was duly issued by the clerk of the county of Warren on or about- the 1st day of March, 1901, on a judgment recovered on the 28tli day of February, 1901, in favor'of the Aird Don Company, plaintiff, against Charles R. Scott) the defendant herein, before Edward Breen, a justice of the peace of the county of Warren, for the sum of forty-eight dollars and fifty-one cents, a transcript of which judgment was duly filed and docketed in the office of the said clerk of Warren county, and that on or about the 1st day of March, 1901, the said execution in favor of the said Aird Don Company was duly delivered to deponent as deputy of the sheriff of Warren county, to whom said execution and warrant of attachment above set forth were duly directed, and said execution was duly levied by deponent upon the property of the defendant which was already in deponent’s possession under and by virtue of the warrant of attachment above referred to, and that the lien of said execution is subsequent to that of the attachment.”'</p> <p>The plaintiff did not appear on said motion, but subsequently by consent the attorneys for the appellant and respondent went before the said county judge, and after an argument on the same papers a further order was made confirming .the said order setting aside said warrant of attachment.</p>

<p>Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 13th day of November, 1900, upon the decision of the court, rendered after a trial at the Rensselaer Trial Term, certain question's having been submitted to a jury, and also from an order, entered in said clerk’s office on the 26th day of October, 1900, denying the 'defendant’s motion for’a new trial made upon the minutes.</p> <p>The plaintiff was the beneficiary under two policies issued by the defendant on the life of the plaintiff’s sister, Catharine Lynch, formerly Catharine Donovan, who died January 1, 1899. One of the policies was issued on April 9, 1883, for $116, and the other on December 22, 1884, for $53. The name of the plaintiff as beneficiary appeared in the applications and not in the policies. Plaintiff paid the premiums on these policies for three or four years until the marriage of her sister, ten or twelve years before her death, to John Lynch, when the' policies with the books containing the receipts for premiums were delivered to the insured, who thereafter paid the premiums. At the time of her death the policies were in the possession of her husband. After Catharine’s marriage with Lynch another policy was issued by the defendant on April 4,1892, for $70 on her life, in the application for which her husband was named as beneficiary. On January 2, 1899, proofs of death were made by John Lynch, the husband of the insured, as the claimant of the amount due on these three policies. On the receipt of the proofs the' company instructed its superintendent at Troy,, N. Y.,. where the plaintiff and John Lynch resided, to make the check for the amount due on the three policies payable to the order of the plaintiff and to John Lynch, and to obtain a release from both. On January fifth, at a meeting of the defendant’s agent with the plaintiff and John Lynch, at the house of Lynch, the plaintiff and Lynch each executed a sealed release to the company for the amounts due under these three policies, and a check to the order of Lynch and the plaintiff for the amount due on the three policies was indorsed by the plaintiff and delivered to Lynch, who received the benefit of the same. Thereafter -this action was brought by the plaintiff to set aside the release as to her and to recover the sum of $169, the amount of the two policies, in which she was beneficiary, on the ground that the release and her indorsement of the check were procured from her through the1 fraudulent representations of the defendant’s agent.</p> <p>The court submitted to the jury the following questions: First-. Was the plaintiff induced to sign the release or receipt and indorse the check in evidence by the false representations of Bernard T. Dooley, the agent of the defendant company, without knowledge on plaintiff’s part of the ■ nature of the piper she was signing ? ” Second. “ Was the check in evidence ever delivered by defendant, its agents or servants to the plaintiff?” The jury answered the first question in- the affirmative and the second in the negative. The trial court made a decision adopting the findings of the jury and directing a judgment for the plaintiff, and from the judgment entered thereon this appeal is taken.</p>

Appeal by the plaintiff, the New York and Eosendale Cement Company, suing on behalf of itself and others, taxpayers of the village of Eosendale, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Ulster on the 12th day of November, 1900, upon the decision of the court rendered after a trial at the Ulster Special Term, and also from an order, entered in said clerk’s office on the. 12th day of November, 1900,…

Appeal by the defendant, Emerthew P. Johnson, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 11th day of February, 1901, denying the defendant’s motions for a retaxation of the costs and for the vacation of the taxation of the plaintiff’s costs, and for the striking of the amount thereof from the judgment theretofore entered in the action.

<p>Appeal by the defendant, John Sanborn, from a judgment of the County Court of Chemung county in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 4th day of January, 1901, upon the decision of the court reversing upon appeal a judgment of the City Court of Elmira ill favor of the defendant entered upon the verdict of a jury.</p> <p>This action was brought to recover the possession of a horse.</p> <p>The complaint alleged that the plaintiff was the owner of a certain horse which the defendant, who kept a livery stable, refused to deliver to the plaintiff.</p> <p>The answer denied the plaintiff’s ownership and claimed the right to the possession of the horse under an agreement made with one Emory G. Drake, from whom the defendant received it, that defendant should hold it as security for board and care furnished by him for this and another horse.</p> <p>The action was tried in the City Court of Elmira before the city judge and a jury, who awarded possession of the horse to the defendant.</p> <p>The judgment entered on the verdict was, on an appeal therefrom, reversed by the County Court of Chemung county, and from such judgment of reversal this appeal is taken.</p>

Appeal by the plaintiff, Herbert E. Jerry, from an order of the County Court of Clinton county, entered in the office of the clerk of the county of Clinton on the 1.8th day of December, 1900, denying the plaintiff’s motion to dismiss an appeal to the County Court from a judgment rendered by a justice of the peace.

Appeal by the defendant, Stewart M. Brice, 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 April, 1901, adjudging said defendant guilty of a contempt of court, and also from an order entered in said clerk’s office on the 22d day of April, 1901, denying his motion for a reargument of the motion made to adjudge him guilty.

Appeal by the defendants, Charles W. Bretney and Samuel Prince, individually and as president of and representing the Public Owners and Hack Drivers’ Association of the Greater Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 10th day of May, 1901, granting an injunction pendente kite.

Appeal by the defendant, The Catholic University of America, from a judgment of the Supreme Court in favor of the plaintiff, and in favor the of defendants, John A. Hamilton and others, entered in the office of the clerk of the county of New York on the 10th day of . December, 1900, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the assignor, the Workingmen’s Publishing Association, 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 17th day of May, 1901, denying a motion to vacate an order for the examination of the assignor and assignee under section 21 of the General Assignment Act of 1877.</p>