Volume 62 — New York Supplement

Action by William J. McG-irr against Bernard Campbell, in which-plaintiff filed a complaint alleging that on September 29, 1896,- one Michael McG-irr, deceased, plaintiff’s father, was defendant’s partner in a firm engaged in gathering, shipping, and selling manure in the city of ¡New York, and that such firm owned a large amount of personal property, consisting of trucks, horses, scows, tugs, etc., and the good will of such business, which business defendant continued to…

In the matter of the application of the mayor, aldermen, and commonalty of the city of New York for the opening of Hunt’s Point road.. From an order extending time for making appraisement, Charles D. Dickey and Mary W. D. Yarnum appeal.

Application, on relation of Morris S. Herman, for a peremptory mandamus against the common council of the city of Yonkers and others. , From an order granting the writ, the defendants appeal.

Action by Pauline W. Squire against Ella V. Greene and Maria S. Dunkin, impleaded, and by Artlissa V. Gearon against Ella V. Greene and Maria S. Dunkin, impleaded. From a judgment for defendants, plaintiffs appeal.

<p>Appeal from trial term, Pulton county.</p> <p>Action by Abram Frederick against the city of Johnstown and others. From a judgment for defendants, plaintiff appeals.</p>

<p>Monet Paid—Complaint—Variance.</p> <p>Where a buyer refused to accept two car loads of lumber, as not complying with his order, and requested that the lumber be removed, and that his charges and damages for unloading the same be paid, to which the seller replied, requesting him to reload the lumber, and promising to pay his charges, the buyer was entitled to recover for expenses incurred in unloading and reloading, and for freight paid, under a complaint for money expended at plaintiffs request, since the seller’s agreement to pay charges was a ratification thereof équivalent to an original request to incur them, and hence there was no substantial variance between the complaint and the proof.</p>

Application by Bert Reiss for a peremptory writ of mandamus to compel the American Spirits Manufacturing Company, a private corporation, to allow the petitioner, who claimed to be a stockholder, to examine the company’s books.

<p>Change of Place of Trial—Convenience of Witnesses.</p> <p>Where the only issue was whether plaintiff was injured in a collision in Washington county, and nine of defendant’s eleven witnesses, who would swear that plaintiff received no injury in the collision, resided in Washington county, and ten of plaintiff’s witnesses resided in Albany county, where suit was brought, and were subpoenaed to testify to plaintiff’s physical condition before and after the injury, it was error to deny a change of the place of trial from Albany to Washington county for convenience of witnesses.</p>

Action by John E. Stowell and others against Milton Clark and John W. Fitzgerald, as attorneys in fact of the Brewers’ & Malsters’ Fire Insurance Underwriters. From a judgment for plaintiffs, defendants appeal.

Application by Theodore Farlin for letters of administration on the estate of Cynthia M. Cameron, deceased. From a surrogate’s decree granting the petition, hierva Farlin and another, claimants under an alleged will, appeal.

Action by Marcus D. Marcy against Adolph Reimer and another for damages for cutting a pipe which carried water to plaintiff’s premises from a spring on defendants’ adjoining land. The parties held under a common grantor, by deeds executed on the same day, but •defendants had previously been in possession under a contract of -sale. From a judgment for defendants, plaintiff appeals. The following is the opinion of the trial court:.

<p>Appeal from trial term.</p> <p>Action by Richard M. Witherbee against Andrew J. Taft. From a judgment for plaintiff, defendant appeals. Case sent back for settlement and certification.</p>

<p>Appeal—Trial—Discretion op Court.</p> <p>In an action for personal injuries, allowing plaintiff to amend his declaration by alleging payment of money for medical services, without increasing the amount of damages claimed, was discretionary with the trial court.</p>

<p>Appeal from trial term.</p> <p>Action by one Talamo against Errico Ermano, otherwise known as Ermanno De Rigo. From a judgment for plaintiff, defendant appeals.</p>

<p>Master and Servant—Assumption op Risk.</p> <p>Where plaintiff was an elevator constructor and repairer,_ and had an opportunity to examine an elevator, and made some examination, of it, and was able to tell the cause of an accident which thereafter happened, he assumed the risk incident to its use.</p>

<p>1. Marine Insurance—Seaworthiness—Presumption.</p> <p>Though there was a presumption of unseaworthiness from the entry of . water through the open porthole of a vessel shortly after sailing, and before encountering any storms, on evidence that the deadlights were of the best character, with hackers to protect them, were fit for the vessel and the employment she was engaged in, were in good order at time of sailing, and were closed and securely fastened, the question of seaworthiness was properly submitted to the jury.</p> <p>2. Same..</p> <p>Whether a vessel was unseaworthy because water which entered a certain quarter could not be reached by her pumps, when there was evidence that the vessel was well fitted with pumps adapted to all ordinary conditions, was for the jury.</p>

<p>Appeal from special term, Hew York county.</p> <p>Action by Martin J. Stanton against Solomon Friedman and Edwin Mayer to recover commissions for goods sold by plaintiff while in defendants’ employ. From an order granting plaintiff's motion for a discovery and inspection of defendants’ books and papers to enable him to frame his complaint, defendants appeal.</p>

<p>1. Evidence—Motion to Strike.</p> <p>Motion to strike testimony, which had been received without objection, is insufficient to raise any objection to its relevancy under the pleadings.</p> <p>2. Sales—Goods Sold and Delivered.</p> <p>Where there is an executory sale of goods by sample, pursuant to which the goods are afterwards delivered, action for “goods sold and delivered” will lie, though they were manufactured after the sale.</p>

Action by Marion J. Mapes against William Knorr. From an order denying his motion to vacate a reference, defendant appeals. .Application by plaintiff for affirmance or dismissal of the appeal.

<p>Appeal from special term, New York county.</p> <p>Proceedings by Henry W. Jessup, as guardian of Harry H. Chandler, against David W. Fenton and others. From a judgment in favor of defendants, plaintiff appeals.</p> <p>The following is the opinion of the court below (BEEKMAN, J.):</p> <p>Samuel M. Pringle died on the 31st day of October, 1897, unmarried and childless. He left a will, dated on the 8th day of May, 1897, in and by which, after directing the payment of his debts and certain pecuniary legacies, he gave the following directions: “Third. I do hereby give, devise, and bequeath to my brother-in-law, David W. Fenton, of New York City, N. Y., all the rest, residue, and remainder of all the property, real and personal, of whatever name or nature, and wheresoever situated, of which I may be seised or possessed, or to which I may be entitled, at the time of my decease, after payment of the bequests or legacies hereinbefore set forth; to have, hold, and enjoy the same, and to receive and use the rents, Issues, and profits thereof, for and during the term of his natural life, and the remainder thereof (existing after the death of said David W. Fenton, and the consequent termination of said life estate) over in fee simple absolute to the corporation to be formed for the objects, uses, and purposes and as provided for and stated in the next succeeding paragraphs of this, my will. Fourth. I request my executors hereinafter named, or their successor or successors in interest, to incorporate, after my decease, under the laws of the state of New York, and within a period not exceeding two lives in being,—that is to say, the lives of Emma H. Lewis and Nettie Graham, named in the second paragraph of this will,—an institution or home for respectable invalid, aged, or indigent men within the state óf New York, to be known as the ‘Pringle Memorial Home,’ in memory of my respected father, Thomas Pringle, and it is my wish that preference therein shall be given to educated and literary men (which institution may at present be incorporated under and in pursuance of section 80, chapter 559, of the Laws of 1895, constituting chapter 43 of the General Laws), and for that purpose to designate, select, and associate with themselves the necessary number of .persons to sign, make, acknowledge, and file the certificate of incorporation as required by law, and also to designate and select the first trustees of said corporation, and the number thereof, who shall also make the necessary, usual, and legal by-laws of said corporation for the management thereof, and the better carrying out of the above-named uses, purposes, and objects of said corporation, in order that the disposition of my property, made absolutely to said corporation, as set forth in the third paragraph of this will, may accomplish the greatest amount of good and benefit to those unfortunates whose welfare and happiness I have in view. I hereby appoint David W. Fenton and Richard B. Ferris to be executors of this, my last will and testament, hereby revoking all former wills by me made.” The will was admitted to probate, and both executors qualified, and entered upon the performance of their duties as such. David W. Fenton, the life tenant, died on the 20th day of January, 1899, and thereafter a corporation entitled the “Pringle Memorial Home” was duly incorporated under and in pursuance of the fourth clause of the will, action having been duly taken by the surviving executor in that regard within the lives of Emma H. Lewis and Nettie Graham.</p> <p>This action is brought pursuant to section 1866 of the Code of Civil Procedure by one of the heirs at law of the testator for a construction of the will, and for a judgment declaring that the devise over to the Pringle Memorial Home is void, and perpetually enjoining any party from setting up the devise, or otherwise making any claim in contravention to the determination of the court. The other heirs are made parties defendant. The basis of the action is the claim that the limitation over in favor of the home is void on the ground that it involved a possible suspension of the power of alienation of the property for a period beyond the limitation of two lives in being at the time of the death of the testator. I find myself unable to agree with this contention. The court should be slow to adopt a construction which would defeat the intention of the testator. It is to be presumed that he intended to make a legal, rather than an illegal, disposition of his property; and the evidene® of a contrary intent must be clear and unavoidable to justify a construction which would overthrow his will. The sole question, then, which is to be determined here, is whether, in any event, the absolute power of alienation of the subject of the devise was suspended by the testator for a longer period than during the lives of Emma H. Lewis and Nettie Graham, the two persons named in the will within whose lives the devisee corporation must come into existence. There can be no doubt that the testator had the right to devise his property to a corporation to be formed after his decease. Tilden v. Green, 130 N. Y. 29, 28 N. E. 880, 14 L. R. A. 33. In the case cited the court says (page 47, 130 N. Y., and page 882, 28 N. E., and page 39,14 L. R. A.): “That a valid devise or bequest may be limited to a corporation to be created after the death of the testator, provided it is called into being within the time allowed for the vesting of future estates, is not denied. Perry, Trusts, p. 372, § 736. That question .was decided in Inglis v. Trustees, 3 Pet. 99, 7 L. Ed. 617, and in Burrill v. Boardman, 43 N. Y. 254.” Such a devise creates a future estate, which is purely contingent in its character, and does not require dependence upon a precedent estate to support it. The definition of future estates contained in the real property law (chapter 547, Laws 1896, § 27) is, “An estate limited to commence in possession at a future day, either without the intervention of a precedent estate, or on the determination by lapse of time or otherwise of a precedent estate created at the same time.” This is simply a reproduction of a similar provision contained in the Revised Statutes, and was intended, to sweep away certain artificial rules with respect to the limitation of estates no longer required by public policy, or, under modem conditions, having any support in reason. The life estate which was given by the testator to Fenton was not necessary, then, in order to support the ultimate devise to the corporation; so that, if no such estate had been created, and the only devise had been to a corporation of the description mentioned to be formed within the two designated lives, the limitation would have been a perfectly valid one. The property would have passed to the heirs at law, subject to devestment upon the happening within the prescribed period of the contingency which was to give effect to the executory devise. Nor could there be any possible question with respect to the lawfulness of the suspension of power of alienation of the property caused by the uncertainty with respect to the absolute vesting of the title. Such uncertainty under no possible conditions could exceed the limit of two lives in being at the time of the death of the testator, for it is plain that, simultaneously with the death of the longer liver of the two designated lives, there must bé an absolute ownership vested either in the corporation if then in existence, or in the heirs at law if no such corporation had then been created.</p> <p>Now, how does the fact that the testator has created a legal estate for life, which gives a prior right to the actual beneficial enjoyment of the property during the lifetime of the beneficiary, vary the conditions with respect to the period of vesting? In no way whatsoever. First, because this life has nothing to do with the contingency which affects the coming into being of the corporation, and the constant vesting of the estate. The testator has carefully avoided that by conditioning the devise solely upon the creation of the corporation within the lives of two persons wliom he names for that purpose. If the condition is not satisfied, the gift over fails, even though the life estate devised to Fenton continues, for the period has elapsed within which by the terms of the will the limitation over must take effect. In short, the life of Fenton is not one which affects the creation of the ultimate devise, or which conditions in any way its vesting, inasmuch as a legal estate for life, such as this, is alienable at any time, and the mere fact of its existence cannot be considered upon the question of the suspension of alienation when it in no way contributes to such a 'condition. The test of such a suspension is whether there are persons in being who, by uniting in a conveyance of the property, can transfer an absolute title. It matters not how the title may be subdivided, or what the individual rights of the parties may be with respect to present possession. The sole question is, are their interests of such a nature that by joint action they can vest the entire title in another? In explaining the meaning of the section on this subject contained in the Revised Statutes the revisers say in their notes as follows: “Where the remainder is vested, as where the lands are given to A. for life, remainder to B. (a person in being), there is no suspension of the power of alienation, for the remainder-man and the owner of the prior estate, by uniting, may always convey the whole estate.” 5 Edmonds, St. at Large, p. 304. The correctness of this view of the statute against perpetuities has never been questioned. It forms the basis of the test to which I have referred. Taking now into account the various conditions which might, from time to time, have been found to exist under the will in question, it is plain that under no possible circumstances could it operate so as to exceed the limit of two lives, which has been imposed. If within these lives the corporation come into being, all suspension of alienation ceases, either because it is then vested with an absolute fee in possession, or, if the life estate still continues, because such a fee can be then transferred by its union with the life tenant in a conveyance of the property. If, however, the corporation is not created within the two lives, as provided in the 'will, the limitation over fails to take effect, the devise lapses, and all suspension of the power of alienation ceases, for the heirs at law of the testator become immediately vested with an indefeasible estate in fee simple in possession, or, if the life estate still continues, the life tenant and the heirs at law, by uniting, can at any moment transfer such a fee to another. Taking events as they actually occurred, the condition of the title at the time of the death of the testator was as follows: Fenton had a legal estate for life, and was entitled to possession of the property. The undisposed-of residuum of the title passed to the heirs at law in fee, subject to be devested by the creation of the corporation within the time prescribed therefor. Upon the decease of Fenton, which took place before the formation of the corporation, the right to the possession of the property passed to the heirs at law, and when the corporation was formed the title and right of possession in turn immediately passed to and became vested in it. It is desirable to call attention to the fact that no trust of any kind is created by the testator. This was carefully avoided; for, had the provision in favor of Fenton been thrown into the shape of a trust to pay over the income to him during his life, an entirely different question would have been' presented, as a trust estate of that description, unlike an ordinary legal estate for life, is inalienable, and there would then have been a possible suspension of alienation for more than two lives that would have been fatal to.the ultimate devise.</p> <p>The construction which I have given to the will before me seems to be amply sustained by authority. Bailey v. Bailey, 97 N. Y. 460; Bird v. Pickford, 141 N. Y. 18, 35 N. E. 938; Corse v. Chapman, 153 N. Y. 466, 47 N. E. 812. In the case of Bailey v. Bailey supra, the testator devised to his wife- a certain house and lot for her life, directing that upon her decease the same should occome “a part of the residue of his estate, and be disposed of as hereinafter provided.” In a subsequent clause he devised his residuary estate to his executor, in trust to receive the rents, income, and interest arising therefrom, and to divide the same into four parts, and to pay one of said parts to his brother Ward, another to his sister, Boselia, another to his brother Lewis, and another to his nephew William and his nieces Anna and Sarah, during the natural lives of Thomas Bailey and Webster Mabie. The will made it plain in its subsequent provisions that the continuance of the trust was limited solely on the two lives last mentioned. Upon the termination of the trust the estate was devised in fee to the brothers, sister, nephew, and nieces above mentioned. It was claimed that as to the house and lot devised to the widow for life there was an illegal suspension of the power of alienation,—a view which the court declined to adopt. At page 470, Judge Miller, delivering the opinion of the court, says: “In regard to the devise of the house and lot, we think there was no illegal suspension of the power of alienation. By the fifth clause of the will the use and income of the house and lot were given and devised to the testator’s wife during her natural life, and at her death the house and lot became part of the residuum, which was disposed of as afterwards provided in the will. No trust was created during the life of the wife, and she had the absolute right to dispose of her interest in the house and lot during that period. The power of alienation is, therefore, not suspended during her life. While she had the right to enjoy the use and income of it, she also had the right to sell her interest in the same, if she so wished, and upon her death it passed, under the sixth clause, to the executor, in trust during the lives named, and upon their termination as provided in the seventh clause of the will. It is insisted that the title to the house and lot did not vest until the death of the three persons,—the widow, Thomas Bailey, and Webster Mabie,—and hence there was an illegal suspension of the power of alienation, and the devise was void. The gift of the use and income was equivalent to a devise of the land itself during the life of the widow, and she had a legal title, and was entitled to possession of the same.” The court also held that a trust such as was created by the testator was a valid one, and was to be measured with respect to its duration by the limiting lives expressly designated for that purpose, and not by the lives of the beneficiaries. In the case of Bird v. Pickford, supra, the testator devised his estate, real and personal, to his executors, “in trust, nevertheless, to invest, and keep the same invested, and divide the net income arising therefrom equally among my said daughter-in-law, Ophelia Baltz, and my said cousins, Rachel and Addie Van Gilder, the survivor or survivors of them, during their natural lives.” Immediately following was this provision: “Fourthly. If my said cousins, Rachel and Addie Van Gilder, should die before my said daughter-in-law, Ophelia Baltz, then, in that event, I give and devise the corpus of said trust estate to the said Ophelia Baltz, her heirs and assigns, forever; but if my said daughter-in-law, Ophelia Baltz, should die before my said cousins, Rachel and Addie Van Gilder, then, and in that event, I give and devise the corpus of said trust estate to such person or .persons as my said daughter-in-law, Ophelia Baltz, may designate in her last will and testament.” The court held that the two clauses must be read" together, and that it was plain that the estate could not be tied up longer than during the lives of the two cousins, and that there was no illegal suspension of the power of alienation. At page 20; 141 N. Y., and page 936, 35 N. E., the court says: “It is not sufficient to condemn these clauses that the absolute power of ownership and of alienation may be suspended for three lives, or for many lives, provided that such suspension be bounded by two designated lives in being at the death of the testator;” citing Crooke v. Kings Co., 97 N. Y. 421; Bailey v. Bailey, Id. 460. The judgment of the general term was reversed. 71 Hun;' 142, 25 N. Y. Supp. 46. In the case of Corse v. Chapman, supra, the testator gave a legal estate for life to his widow in a certain piece of real estate, and devised all the residue' óf his estate to bis executors, to divide the same into eight equal parts, being one share for the use of each one of his eight children, and to pay over to each the net income of his or her share for life. As each child died, its share was devised absolutely to his or her lawful issue, the testator stating that he intended to include issue born after his death. He further provided that, if any of his children died without lawful issue, then the share so set apart for the use of such child should be divided and allotted into as many parts or shares as there might be children of his then living, and that the same should be deemed added to said shares proportionately, severally, and respectively, and the rents and income therefrom “added and paid to his said several and respective surviving children during his or her life.” The contention was that there was a possible suspension of the power of alienation of the parcel which had been devised to the widow for life for more than two lives in being at the death of the testator, the life of the widow being counted. While it was conceded that the devise in trust did involve a possible suspension for two lives, the court held that this limit was not exceeded, saying (page 473, 153 N. Y., and page 814, 47 N. E.) that the life estate had nothing to do with the trusts created by the will, and was alienable at any time by the widow; citing Bailey v. Bailey, supra. These decisions certainly seem to settle the law applicable to the construction of this will conclusively against the contention of the plaintiff. The devise to the Pringle Memorial Home was, therefore, a valid one, and the title to the property in question is now vested in it in fee-simple absolute.</p> <p>Judgment is ordered accordingly. Notice decision and judgment for settlement.</p>

<p>Motion for reargument.</p>

<p>Petition for preliminary injunction by the Hew York Asbestos Manufacturing Company against the Hew York Fireproof Covering Company. Injunction denied. ></p>

<p>Appeal from municipal court, borough of Queens, First district.</p> <p>Action by John T. Woodruff against John Klee and another. Judgment for plaintiff, and defendants appeal.</p>

<p>Landlord and Tenant—Warranty or Water—Evidence.</p> <p>Where, in an action for rent, defendants relied on breach of a covenant of warranty as to the quality of water on the premises, which applied only to its quality at the time they took possession, and no breach was proved, as so construed, error in the reception of evidence as to the quality of the water at a subsequent time was not prejudicial as to them.</p>

<p>Appeal from special term, New York county.</p> <p>Proceedings by Thomas Wright for the determination of the validity of a certificate of nomination of Herman Schlueter. From, an order affirming the determination of the police commissioners, sustaining petitioner’s objections to the certificate, Schlueter appeals.</p>

<p>1. Wills.</p> <p>A jury’s finding that a testatrix was mentally qualified, and was not unduly influenced, will not be disturbed, where there was any evidence to warrant same.</p> <p>3. Appeal and Error.</p> <p>Where the errors assigned were immaterial, as affecting the result, the judgment will not he reversed.</p>

<p>Trial—Verdict—Interest.</p> <p>Where the jury failed to include interest on the amount found to be due plaintiff under a contract by which it was to receive an agreed price for repairing a street pavement, made necessary by excavations for defendant’s building, and the amount of such repairs was ascertainable by either party, the court, on plaintiff’s motion, should compute the interest, and add it to the verdict.</p>

Appraisal of the property of George M. Pullman, deceased, for taxation under the transfer tax law. From a surrogate’s order affirming the appraisement, and the determination of the tax, Helen P. West and other beneficiaries under decedent’s will appeal.

<p>Action by Richard F. Orpherts against Frank Sullivan Smith on a draft accepted by him as receiver of a corporation. Judgment for defendant.</p>

<p>Appeal—Questions op Pact.</p> <p>An appellate court cannot interfere with a judgment founded on conflicting evidence.</p>

Action by Henry W. Miller and others against the Salt Springs National Bank and others, impleaded, etc. From an order denying a motion to strike out an amended answer filed without leave five years after issue joined, defendants appeal.

<p>Motion for reargument, or for leave to appeal to court of appeals.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by the Tarrytown, White Plains & Mamaroneck Railway Company against the New York, Westchester & Connecticut Traction Company. Prom an order continuing a preliminary injunction, defendant appeals.</p>

<p>Executors and Administrators—Statutes—Stay op Letters Testamentary on Appeal.</p> <p>Code Civ. Proc. § 2582, declaring that an appeal from a decree of the surrogate admitting a will to probate, etc., does not stay the issuance of letters, where, in the opinion of the surrogate, the preservation of the • estate requires that letters should issue, applies to appeals to the court of appeals as well as to the supreme court.</p>

<p>Appeal from trial term.</p> <p>Action by one McLaughlin and others against one Engelhardt for services rendered under a contract. From a judgment in favor of plaintiffs, defendant appeals.</p>

Action by Robert T. P. Fiske against 'Carl Ernst. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by William C. Lesster against the Lawyers’ Surety Company of New York. From a judgment by direction of the court, defendant appeals.</p>

Action by Meyer and others against Ohamberlyn. From a judgment for defendant, and from an order .overruling plaintiffs’ demurrer to defendant’s counterclaim, plaintiffs appeal. Reversed, and demurrer sustained, but with leave to answer over.

<p>Bills and Notes—Trial—Motion to Dismiss—New Trial.</p> <p>Where, in an action on notes, the holder proved title, possession, and the amount due, and rested, and defendant made no motion to dismiss, and at the close of .all the testimony did not ask for the direction' of a verdict in his favor, he was not entitled to a new trial on the minutes, since by his conduct he conceded that there was sufficient evidence to warrant a submission of the disputed facts to the jury.</p>

<p>Appeal from municipal court, borough of Manhattan, First district.</p> <p>Action by Louis Steiner against Morris Block. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal—Jurisdiction ot Municipal Court.</p> <p>Where the jurisdiction of the municipal court does not appear by averment or by evidence in the return, its judgment must be reversed on appeal.</p>

Judicial accounting by Philip C. Slaughter as assignee of one Siebert. An order was issued to said Slaughter to appear and file his account, which he failed to obey. Motion to punish him for contempt.

Action by Minna Joly against the New York & East Eiver Ferry Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Affirmed conditionally. .

Action by Robert A. Lancaster against Amos T. French, as executor of the estate of Francis 0. French, deceased. From a judgment in favor of defendant on the referee’s report dismissing the complaint, plaintiff appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Richard B. Kelly and another, executors, etc., of Richard Kelly, deceased, against the Forty-Second Street, Manhattanville & St. Nicholas Railway Company. From a judgment for plaintiffs, •defendant appeals.</p>

In the matter of the settlement of the accounts of William E. Edmonds as administrator, etc., of Maria Edmonds, deceased. From a decree settling his accounts in favor of Sarah A. Edmonds and another, contestants, he appeals.

<p>Preliminary Injunction—Discretion of Court.</p> <p>Under Code Civ. Proe. § 603, providing that where it appears from a complaint that plaintiff is entitled to judgment restraining defendant from the commission of an act which, during the pendency of the suit, will produce injury to him, an injunction may be granted to restrain it, the court at special term, in its discretion, may grant a preliminary injunction, where, from all the papers in the cause, it is apparent that the acts restrained are seriously injuring plaintiff’s property, and he has no adequate remedy at law.</p>

<p>Trial—Short-Cause Calendar.</p> <p>Where, in an action on a note for legal services, the defénse was interposed that plaintiffs negligently failed to tile a counterclaim in a suit in which they were retained by defendant, and it appeared that motion to file eountercláim. by substituted attorneys had been denied and order of court had been affirmed on appeal, it was error to refuse to place the action upon the short-cause calendar, as the record of the case would determine the issue.</p> <p>Van Brunt, P. J., dissenting.</p>

<p>Discretion op Court—Sending "Papers to Jury.</p> <p>Determining whether a map in evidence showing the place of the accident shall be sent to the jury, as requested by them, is only an exercise of the court’s discretion.</p>

• Action by David F. O’Connor against Sewannee M. Stevenson, James McClenahan, and James D. Smith, for breach of contract. From a verdict and judgment for plaintiff, defendants appeal.

<p>Wills—Pretended Trusts—Cp.editors op Beneficiary.</p> <p>A husband’s objections to a codicil revoking provisions in his wife’s will in his favor were withdrawn in consideration of an agreement with the trustees of his wife’s estate to set aside a fund of $100,000, and pay the husband the income thereof for five years. Re'ld, that the income was not derived from a trust fund, but was property of the husband, which he could not withhold from his creditors, irrespective of the question whether he made the agreement with intent to defraud his creditors by creating a pretended trust fund which should be beyond their reach.</p>

<p>Application for peremptory writ of mandamus by the people, on the relation of one Patten, against one Waring, commissioner of street cleaning.</p>

Application by Louis Ungrich and others, as executors of the last will and testament of Jacob Schwarz, deceased, for judicial settlement of their accounts. From that part of the decree adjudging: the widow entitled to the custody and possession of testator’s personal property without giving security, said executors and testator’s heirs appeal.

Action by Edward S. Clinch against Frances N. Henck for compensation for services as attorney. From a judgment granting a compulsory reference, defendant appeals.

<p>Appeal from surrogate's court, New7 York county.</p> <p>Application by Douglas <1. Scott and others to remove Robert Beggs as trustee, under the last will and testament of Hugh Henry Scott, deceased. From an order granting the removal, the trustee appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Max Cohen, as trustee, against Jacob Levy and others. From an order opening a default taken against plaintiff, defendants appeal.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Jane Curran against William G. Flammer. From a judgment for defendant, plaintiff appeals.</p>

Application by the-people, on the relation of Hugo Rossner, against John H. Scannell, fire commissioner of the city of New York, for a peremptory writ of mandamus to compel defendant to appoint the relator to membership in the fire department. From an order denying the motion, the relator appeals.

<p>Appeal from special term, New York county.</p> <p>Action by the Fidelity <& Casualty Company of New York against Charles W. Wells on a contract of guaranty. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal—Harmless Error.</p> <p>Error in admitting testimony is harmless, where like testimony has been admitted without objection.</p> <p>3. Opinion Evidence.</p> <p>In an action for injuries caused by the fall of the walls of a building in course of construction, the opinion of a city building inspector, who was an expert and had seen the walls, as to the strength of the building, is competent.</p> <p>3. Appeal—Harmless Error.</p> <p>Error, if any, in permitting a witness to explain a photograph admitted - in evidence, is harmless, where what is testified to is apparent from the picture itself.</p> <p>4. Trial—Instruction.</p> <p>An exception will not lie to the qualification by the court of a request to charge, where the request itself was presented in a form obscure and indefinite, and in one aspect of its language justified the qualification.</p> <p>5. Master and Servant—Injury to Employe—Liability of Contractor.</p> <p>Although a contractor was not required by his contracts to lay the bottom for foundation walls, yet where he knew, or the conditions were such that he should have known, that the bottom laid was insufficient for the erection of the wails thereon, he may not negligently proceed with the work, and escape liability, as against an employé, for injuries caused by the fall of the walls due to such insufficient bottom.</p> <p>6. Trial—Refusal of Request.</p> <p>A refusal of a request to charge the jury as to what the evidence was in respect to a certain question is not error, where the request was made in such a form as to mislead the judge, and no attempt was made, when it appeared that he misunderstood the request, to clear up the mistake.</p> <p>Van- Brunt, P. L, and Ingraham, J., dissenting.</p> <p>The action was brought to recover $25,000 damages by the plaintiff as administrator of his son, who was killed by the fall of the walls of buildings in the course of construction at 20 and 22 East 116th street, and who at the time of the accident was at work as a brick mason upon the premises.- The complaint alleges that the collapse of the buildings was caused by the defendants’ negligence in constructing the foundation walls of the buildings, in that the cement used was poor in quality, and the masonry was not substantial, being composed of improper material, badly laid upon insecure and insufficient support. The answer of the defendants Sess, who were the contractors,— defendant Fordinsky, the owner, presenting no defense,—denies that the fall of the walls resulted from any defect in their work, and alleges that their part of the construction was properly done. Upon the trial it appeared that the defendants Sess had contracted “to do all the stonework for laying the foundations of the buildings, * * * and to furnish all the cement required for the completion of said foundations, and that, in case any stones will be required for the completion of the same, that they will furnish all such stones. * * *” On the part of the plaintiff there was testimony that, after the collapse of the buildings, it was observed that the defendants’ foundation wall , had bulged out so that it was not perpendicular, and that it had settled at least an inch; that the land on which the foundation was built was composed of slanting rock, and part of the wall rested upon filled in ground, entirely unsuited for the purpose, upon which an iron beam had been placed; that the wall itself was composed of stone blasted some years previous, which the defendants found on the premises, and which was irregular in size and shape, and mostly in small rough pieces, laid not in courses, but without any order, so that there were crevices between the stones into which a rod slipped down so far that there was danger of losing it; that the mortar used in- the foundation was of poor and inferior quality, and many stones taken from the wall were not properly bedded, and were perfectly dry, without cement adhering to them; that proper binding stones, which are intended to run crosswise in the wall, were not provided. A photograph was presented by the plaintiff, and admitted in evidence, showing a portion of the wall as it appeared after the accident. There was also some evidence tending to show that the concrete bottom in rear was improperly placed on filled in ground, and that the iron beam in which the wall rested was improperly bedded. The defendant Michael Sess testified that a concrete bed and the iron beams on which the wall rested were made ready by the defendant Fordinsky, and had been approved by the building inspector, and formed a proper bottom; that in the construction of the wall the mortar used was well mixed with good cement, ,and skillful workmen were employed, and the work was like that ordinarily Gone; that the stone used were what the defendant Forflinsky had instructed them to use, and were adapted to the work; that the masonry had not settled at all. John Sess testified that the wall was somewhat pushed out; that, although he saw the concrete bed, he left that to the inspector, and did not himself examine it, that not being his business,—stating, “I had my money to build the wall, and not examine how the owner did it.” There was other testimony in behalf of the defendants that the cement used was good, and the stone such as ordinarily used, and some of the defendants’ witnesses also stated that the wall had not settled, and no bulging was observed. Further testimony was given for the defendants to show that the brick walls built upon the stone foundation did not comply with the law as to thickness (sections 476, 478, Consol. Act), and that they were built during rainy weather, so that the bricks became saturated with moisture, and the lime of the mortar was washed away. There was also testimony that there had been blasting in the neighborhood.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Samuel W. Hammel against Wilbur F. Washburn and Emma H. Washburn on a promissory note. From an interlocutory judgment overruling demurrer to complaint, defendant Emma H. Washburn appeals. Reversed.</p>

Action by the people, on the relation of William H. Kastor, against Henry S. Kearny, commissioner, for writ of mandamus. From an order denying the writ, plaintiff appeals.

Appeals from special term. Actions by Edward P. Bales against Salt Springs National Bank and others, and by Henry W. Millar and others against same defendants. From an order denying a motion to strike out an amended answer in the latter action, certain defendants appeal.

<p>Brokers—Contract op Employment.</p> <p>On the issue as to a brokerage contract, plaintiff’s testimony was that he met flefenhant in the office of a corporation of which defendant was treasurer, on calling to see the secretary; that the secretary was absent, and defendant asked him who he was; that he told him he wanted some information as to the stock of the corporation, which he alleged he had been employed to sell. The defendant said that he was fully informed of the situation, and that they had decided hot to give any further information, unless plaintiff named the principals to whom he expected to sell; that he asked whether it would be necessary to see the secretary again, or whether defendant’s statement -was decisive, and defendant replied, “We are one, practically.” On cross-examination, he testified that he knew the secretary, as such, had no authority to sell the stock, and that he did not say he had.been authorized by anybody to sell it for him; that the secretary told him what the board of directors had done, but did not say he had been told to tell him; that he had never had any previous conversation with any other person than the secretary, but that he had told him to try to sell all the stock of the corporation. Held not to show a brokerage contract between defendant and plaintiff.</p>

Action by Lucius B. Hutchinson against the president and directors of the Manhattan Company, impleaded with another. Judgment for defendants, and plaintiff appeals.

<p>Principal and Surety—Subrogation.</p> <p>Where a surety paid a judgment against a principal in full, he was entitled to require plaintiff to transfer to him the judgment against the principal, and any security he might have for its payment.</p>

Certiorari by the people, on relation of the Crane Company, against Thomas L. Feitner and others, tax commissioners. From an order sustaining the writ, defendants appeal.

<p>Appeal from special term, Hew York county.</p> <p>Action by James Jackson against the Knickerbocker Athletic Club for the recovery of money. From an order of interpleader, plaintiff appeals.</p>

<p>1. Negligence—Machinery.</p> <p>It is not negligence, in the management of a new heating apparatus, to leave a valve open as far as directed by the manufacturer, although in fact it should have been opened wider to prevent an explosion.</p> <p>3. Same—Burden of Proof.</p> <p>The burden of proving absence of negligence is not upon the defendant in action brought for personal injuries occasioned by the explosion of a hot-water heating apparatus operated by him.</p> <p>This action was brought to recover damages for personal injuries sustained by plaintiff while waiting, for the purpose of taking passage upon the defendant corporation’s railroad, in a room in defendant Brown’s hotel which was being used by the defendant corporation as a waiting room. The injury complained of was occasioned by the explosion of a hot-water heating apparatus which had been installed in the hotel by the landlord, defendant Dell Brown, for the purpose of heating his hotel.</p>

<p>Action by one Litt against one Stewart to set aside a judgment of the municipal court.</p>

<p>Action by Bertha Albring, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Frank W. Angel against the Lawyers’ Title-Insurance Company of New York, impleaded with the Methodist Protestant Church of Williamsburgh and others.</p>

<p>Action by John Adrian against Rosina Adrian.</p>

<p>Action by William E. Bailey against Ellen F. Reed. From an order denying plaintiff’s motion to place cause on the preferred calendar, he appeals. Reversed. Leopold Leo, for appellant.</p>

<p>Action by Carl Belleng against the New York & Cuba Mail Steamship Company. From a judgment for plaintiff, defendant appeals. Reversed. Edward P. Mowton, for appellant. Edward B. La Fetra, for respondent.</p>

<p>Actions by Edward P. Bates against the trustees of the Masonic Hall & Asylum Fund, and by Henry W. Miller against the Salt Springs National Bank and others.</p>

<p>Action by Charles A. Barnes and others against William W. Trevor and others, impleaded with John J. Arnold and others.</p>

<p>In the matter of the Board of Rapid-Transit Commissioners.</p>

<p>Action by Mary E. S. De Grauw, as sole executrix and sole devisee, etc., against the Long Island Electric Railroad Company and others.</p>

<p>Action by John F. Dorthy against the Herald Publishing Company.</p>

<p>Action by Urania Dollinger against Henry Herman.</p>

<p>Action by James A. Dennison against James B. Lawrence.</p>

In the matter of the appointment of an examining board to examine into the operation of an act creating a commission of jurors for each county of the state having a certain population, etc.

<p>Action by Margaret E. Fisher against Timothy Nash.</p>

Action for an injunction by William J. Fisher against the New York, Westchester & Connecticut Traction Company. From an order continuing an injunction pendente lite, defendant appeals. Reversed, and injunction dissolved. James 0. Church, for appellant. Alexander Cameron, for respondent.

Action by Grace A. Hallaban, as administratrix de bonis non of Michael J. Hallaban, deceased, against George C. Webber and Lucien Bayliss, as assignee, to set aside a sale of personal property on the grounds of fraud. From a judgment for defendants at special term, plaintiff appeals. Affirmed. Theo. H. Friend, for appellant. Paul C. Cloyd, for respondents.

<p>Action by Esther Griffith against Myer Friendly and others.</p>

<p>Action by Erastus Hamilton against Edward R. Emerson. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. Alexander & Ckilby, for appellant. Charles J. Hardy, for respondent.</p>

<p>Action by the Herkimer County Light & Power Company against Victor Adams.</p>

<p>In the matter of the application of Samuel D. Lasky for admission to practice.</p>

<p>In the matter of'the application of Ophelia Leggat to punish William T. Molloy, sheriff of Westchester county, for contempt of court.</p>

<p>Action by Henry H. Lyman, as state commissioner, etc., against the Erie County Athletic Club.</p>

<p>Action by Adelia E. McKee against Ann Lavery, as executrix, etc.</p>

<p>Action by Elizabeth Lohoff against the village of Brockport.</p>

<p>Action by the Needham Piano & Organ Company against Josephine Powell. From a judgment for plaintiff, defendant appeals. Affirmed. Leroy M. Young, for appellant. Morris Putnam Stevens, for respondent.</p>

<p>Action by the Mutual Life Insurance Company against Spencer Aldrich and others.</p>

<p>Action by John Martin, as executor, etc., against William Martin.</p>

<p>Action by James A. Murtha and another, as executors, etc., of William G. Peirson, deceased, against George Wilcox, as executor, etc., of Martha W. Peirson, deceased, and others.</p>

<p>Action by Ida Patterson against John Burgess and another, as administrators, etc.</p>

<p>Proceedings by the people of the state of New York against John E.- Conklin.</p>

<p>Action by A. Emerson Palmer against the board of education of the city of New York and others.</p>

<p>Proceedings by the people of the state of New York against the Buffalo Fish Company, Limited.</p>

<p>Proceedings by the people of the state of New York against Charles Benedict.</p>

<p>Action by the people of the state of New York against Edward Yoran and others. Edward and William Yoran appeal from judgments of conviction of burglary. Judgment of .conviction reversed, and a new trial ordered.</p>

<p>Proceedings by the people of the state of New York against Madeline Hawkes, Richard Hawkes, Albert Norman, and Charles McDonald.</p>

<p>In the matter of Joseph Plummer, deceased. Jabish Holmes, for appellant. W. V. Rowe, for respondent.</p>

<p>Action by Peter A. Porter, individually, etc., against the International Bridge Company and the Grand Trunk Railway Company of Canada.</p>

<p>Action by Robert L. Reade against the Continental Trust Company.</p>

<p>In the matter of the application for the removal of Charles A. Rupp and another, police commissioners.</p>

<p>Action by Mary A. Sawdy against the village of Livonia.</p>

<p>Action by Louis Schwartz against the Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed. Henry A. Robinson, for appellant. J. P. Soloman, for respondent.</p>

<p>Judicial settlement of Thomas Sturgis, surviving trustee of the estate of Catherine Sturgis, deceased. From a surrogate’s decree declaring invalid the trust created by the will for the benefit of the poor of the east parish of the town of Barnstable, Mass. (59 N. Y. Supp. 783), the selectmen of the town of Barnstable appeal. Affirmed. C. C. Burlingham, for appellant. James McICeen and John Notman, for respondent.</p>

<p>Action by Francis J. Tobias against John P. Wierck and others.</p>

<p>In the matter of the application of Josiah J. White, as guardian, etc., of Frederick Hall White, an infant, etc.</p>

<p>Action by Moses Vail against Sylvester N. Leary.</p>

<p>Action by Georgia Caroline White and another against Charles M. Welsh, as executors, etc.</p>

<p>Action by Walter S. Washington, as ancillary administrator, against the Seaman’s Bank for Savings. W. W. Thompson, for appellant. G. Marshall, for respondent.</p>