Volume 63 — New York Appellate Division Reports

. 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 21st day of November, 1900, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the ■ 30th day of November, 1900, denying the defendant’s motion for a new trial made upon the minutes. '

Appeal by Jacob Levy 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, granting the application of Oscar G. Borkstrom and directing the said Jacob Levy to pay over certain moneys to said petitioner.

<p> Misdemeanor■—right of the accused, to appear by counsel —his right to absent himself. </p> <p>Where a person charged with a misdemeanor executes a recognizance, conditioned that he “shall appear and answer the charge above mentioned, in whatever Court it may be prosecuted, and shall at all times render himself amenable to ■ the order and process of the court; and, if convicted, shall appear for judgment and render himself in execution thereof," and when his case is called for trial he fails to appear in person but is represented by counsel who states that his client is sick and that he has a written authorization to proceed with the trial in his absence, it is error for the court to refuse to proceed with the trial, and to declare the recognizance forfeited — certainly without giving the defendant an opportunity to attend in person.</p> <p>Quaere, whether section 356 of the Code of Criminal Procedure, providing that the trial for a misdemeanor may be had in the absence of the defendant if he appear by counsel, gives the defendant an absolute right under all circumstances to refuse to appear for trial.</p> <p>O’Brien, J., dissented.</p>

<p>Appeal by the plaintiff, Tradesmen’s National Bank, 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 5th day of June, 1901, granting the defendants’ motion for. leave to amend their answer.</p>

<p> Preference—fourteen days’ notice of trial must be first given and the cause.be on the general calendar. </p> <p>A cause cannot, because of the defendants being in actual imprisonment, be granted' a preference under rule 36 of the General Rules of .Practice, and be placed upon the day calendar for trial until fourteen days’ notice of trial has been served, as required by the Code of Civil Procedure, and the cause has been placed upon the general calendar.</p>

Appeal by the defendants, Thomas Rogers, as trustee under the will of Jason Rogers, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 31st day of August, 1900, upon the report of a referee.

Motion by the plaintiff, Christian Blinn, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate^ Division in the first instance, upon the verdict of a jury in favor of the defendants, rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, William T.. Coale and another, as executors, etc., of Jane A. Dwyer, deceased, 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 4th day of August, 1899, upon the report of a referee.

Appeal, by the plaintiff, Edward- Morley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk, of the county of Hew York on the 21st day of May, 1900, upon the decision of the court rendered after a trial at the Hew York- Special Term dismissing the complaint upon the merits, The original defendants in this action were George A. Castor and Charles S. Morley.

Appeal by Antonia Bachiller De Pence De Leon 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 24th day of May, 1901, denying her' application to examine, the Mutual Reserve Fund Life .Association as a third party in a proceeding supplementary to execution.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plain, tiff, entered in' the office of the clerk of the county of New York on the 5th day of February, 1901, upon the verdict of a jury for $2,750, and also from an order, entered in said clerk’s office on the 21st day of February, 1901, denying the defendant’s'motion for a new trial made upon the minutes.</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 2Yth day of November, 1-900, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office -on the: 30th day of November, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Cross-appeals by the Central Realty Bond and Trust Company, as substituted trustee under the will of David Seaman, deceased, and by Elizabeth Rhoads, individually and as administratrix of the estate of George B. Rhoads, deceased, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 26th day of April, 1901, judicially settling the accounts of Emma L. M. Rhoads, as trustee under the last will and, testament of-David Seaman, deceased.</p>

Appeal by the defendant, Samuel M. Rice, 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 3d day of May, 1900, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

<p>Appeal by the defendant, the Press Publishing Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of April, 1901, sustaining the plaintiff’s demurrer to the second defense contained in the amended answer.</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 7th day of December, 1900, upon the verdict of a -jury for1 $1,500; and also from an order entered in said clerk’s office on the 7th day of December, 1900, denying the defendant’s motipn for a. new trial made upon the minutes.

Appeal by the plaintiffs, Lyman G. Bloomingdale and another,.from a judgment of the Supreme Court in favor of the defendant, entered in the office of, the clerk of the county of New York on the 1st day of May, 1900, upon the verdict of a jury, and also-from an order entered in said clerk’s office on the 28th day of May, 1900, denying the plaintiffs’ motion for a new trial made upon the minutes.

<p>Negligence—collision between a brougham, and an electric street car — injury to the son of the owner of the brougham sitting on the seat with the driver — $7,500 ver- i diet, not excessive. I</p> <p>In an action brought against an electric street railroad company to recover damages resulting from the death of the plaintiff’s intestate, it appeared that. between half-past eleven and twelve o’clock on the night, of the accident the intestate was riding through the city of New York on the driver’s seat with the driver of his father’s brougham; that the brougham proceeded westerly through One Hundred and Twenty-sixth street, and that upon approaching Eighth avenue the driver checked his horse for the purpose of allowing two cars, one going north and the other going south, to pass each other at the crossing, and that, after those cars had passed, the brougham proceeded to cross. the track. The driver, who was looking ahead, testified that he saw no other car approaching although he could see the track both to the north and south' as far as the middle of the block; that, as his horse was on the track, he noticed a car approaching rapidly from the south; that he at once pulled his horse around to the north but that the car struck the front wheel of the brougham and carried it along until the brougham collided with a column vof the elevated railroad. In the collision which resulted the plaintiff’s intestate’s arm was forced through the glass front of the brougham, and an artery was cut, which resulted in his death.</p> <p>It appeared that the street was sufficiently lighted to enable the brougham to be seen and that the car gave no signal of its approach. The car was brilliantly lighted and there was no obstruction which would have prevented any one from seeing it. There was no evidence to show whether the intestate looked for an .approaching car before the brougham was driven upon the track, and the driver testified that if the intestate had requested him to stop for any reason he would have stopped at once.</p> <p>Held, that the question of the defendant’s negligence and of the intestate’s freedom from contributory negligence were properly submitted to the jury;</p> <p>That, as it did not appear that the relation of master and servant existed between the intestate and the driver of the brougham, or that the driver was under the express control of the intestate, the intestate was not responsible for any negligence on the part of the driver;</p> <p>That, while it was the duty of a person in the situation of the intestate to exercise his faculties to discover approaching danger and to endeavor to avoid such danger by notifying the driver-or otherwise, it could not be said that the intestate was negligent as a matter of law in failing to discover the approaching car;</p> <p>That a verdict of §7,500 would not be set aside as excessive where it appeared that the intestate was a boy sixteen years of age, well equipped both physically and mentally, and was in the habit of assisting his father in his business on Saturdays and for four or five weeks in the summer and that he had about completed his education.</p> <p>Van Brunt, P. J,, dissented.</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 éounty of New York on the 9th day of February, 1901, ujion the verdict of a jury for $400^ and also from aii order entered in said clerk’s office on the 26th day of February, 1901, denying, the defendant’s motion for a newtrial made upon the minutes.

Appeal by the plaintiff, Harry Griffiths, an infant, by Henry W. Griffiths, 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 17th day of January, 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 10th day of October, 1900, setting aside the verdict of…

Motion by the plaintiff, John P. Chrystal, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at the Hew York Trial Term.

<p> A compulsory reference on the ground that a long account is involved—it cannot be ordered where the right to an accounting is put in issue. </p> <p>Where an answer interposed in an action in equity for an accounting puts in issue the plaintiff's right to an accounting, the defendants are entitled to have such issue determined upon the trial at Special Term before a reference- can be ordered to take the account.</p>

Appeal by. the plaintiff, George W. Moore, from an interlocutory 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 22d day of January, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer, to the complaint.

Motion by the plaintiff, Caroline A. McCready, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint' by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Charles Malone, from a judgment of the Court of Special Sessions of the Peace of the city of New York in favor of the plaintiff, rendered on the 27th day of February, 1901, convicting him of a violation of section 292 of the Penal Code.

Appeal by the defendant, Henry Murray, 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 1st day of May, 1899,' upon the verdict of a jury for $1,500. A motion was made for a new trial upon the minutes, but no order appears in the printed case.

Appeal by the defendants, William A. Force 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 Hew York on the 21st day of January, 1901, upon the report of a referee, and also from an order made at the Hew York Special Term and entered in said clerk’s office on tlie 27th day of December, 1900, granting the plaintiffs an extra allowance.

Appeal by the plaintiff, Anna Steinau, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1901, granting the defendant’s motion for a bill of particulars. ■

Appeal by the relator,. The Yew York Central and Hudson Eiver Eailroad . Company, 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 11th day of June, • 1901, quashing a writ of certiorari theretofore issued to review the action of the respondents in assessing, the franchise of the relator, which is engaged in operating a railroad on Park- avenue in the borough of Manhattan.

<p>Appeal by the plaintiff, Charles C. Dickinson, as assignee of Eugene H. Earle, individually and for the benefit of creditors, and as assignee of Eugene M. Earle and William Pitt Earle, as copartners, for the benefit of creditors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1901, setting aside the report of a referee and vacating a judgment entered thereon, upon the ground of the misconduct of the referee.</p>

Appeal by the plaintiff, Charles C. Dickinson, as assignee of Eugene M. Earle, individually and for the benefit of creditors, and as assignee of Eugene M. Earle and William Pitt Earle, as copartners, for the benefit of creditors, 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, denying the plaintiff’s motion for a retaxation of costs.

Appeal by the defendant, Morris Benson, from an order of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 13th day of September, 1900, affirming a judgment of conviction rendered by a magistrate of the city of New York, adjudging the defendant to be a disorderly person and ordering him to pay three dollars a. week for the support of his wife and children.

Appeal by the plaintiff, Francis T. Walton, 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 November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Rose M. Leary, 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 6th day of November, 1899, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal' by the defendant, Howard Gould, 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 15th day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edward F. Brown, as trustee for Benjamin W. B. Brown and. others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of March, 1901, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the plaintiff, the Scott Shoe Machinery 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 10th day of April, 1900, directing the plaintiff’s attorneys to accept the defendant’s answer to the complaint.</p>

<p>Appeal by the plaintiff, John Delahnnty, as receiver, etc., 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 14th day of June, 1899, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the relator, The Society of the Free Church of St. Mary the Virgin, from that part of 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 28th day of March, 1901, which determines that so much of the premises of the relator, situated between Forty-sixth and Forty-seventh streets in the borough of Manhattan in the city of Hew York, occupied by the relator on the second Monday of…

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 4th day of February, 1901, upon the verdict of a jury for $7,500, and also from an order, entered in said clerk’s office on the 11th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Sufficiency of a complaint, not determined on a motion to amend, — effect of an intimation of its sufficiency by the Appellate Division — action by a general creditor1to set aside a conveyance made by a non-resident decedent in alleged fraud of Ilia creditors.</p> <p>On a motion for leave to serve an amended complaint the court will not determine the sufficiency of the complaint.</p> <p>The fact that the Appellate Division, in determining upon a former appeal that ■ the original complaint did not state a cause of action,, intimated that, if certain facts were alleged, the complaint would he sufficient, affords an ample basis, for the allowance of an amendment to the complaint.</p> <p>Quaere, whether a. general creditor of a decedent, who was a non-resident at the time of his death and whose executors are non-residents and are acting under . foreign letters testamentary, and upon whose estate no administration proceedings have been taken in the State of New York, may maintain an action on-behalf of. himself and all other creditors of the decedent to set aside a conveyance of property alleged to have been made by the decedent in fraud of creditors.</p>

Appeal by the defendants, J. Langdon Ward and Henry H. Porter, as executors, etc., of George Bliss, deceased, from a'judgement of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of February, 1901, upon the decision of the court rendered after a trial at the Hew York Trial Term; a jury having been waived. • On the 31st day of January, 1896, in the city of Hew York, the residence of all the parties, the…

<p>Appeal by the defendant, The First National Bank of Springfield, Ohio, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of .Kings on the 20th day of September, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the complaint. ■ .</p> <p>This appeal was transferred from the second department to the 'first department.</p>

Appeal by the plaintiff, George W. Holman, 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 December, 1900, vacating a judgment entered in said clerk’s office upon default.

Appeal by the petitioner, Charles E. Schuyler, 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 24th day of January, 1901, denying his petition for the revocation of a iiquqr tax certificate issued to Ernest Rorphuro, and also from-a judgment entered in the clerk’s office of the county of New York on the 26th day of January, 1901, upon said order.

Appeal by the plaintiff, The Twelfth Ward Bank of the City of New York, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant Brooks, entered in the office of the clerk of the county of New York on the 14th day of December, 1900, upon the decision of . the court, rendered after a trial at the New York Special Term, as overrules the demurrer of the plaintiff to the third defense contained in the amended answer of the defendant Brooks.

Appeal by the plaintiff, Margaret Williams, an infant, by Henry Evans, her 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 8th day of February, 1901, upon the dismissal of the complaint by direction of the court after a, trial at the New York Trial Term. • ‘ ' . ...

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

Appeal by the defendant, Washington H. Taylor, from a final judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 11th day of January, 1901, granting the plaintiff a separation from the defendant and awarding her Alimony; also from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York •on the 4th day of January, 1899, upon the decision of the court, rendered after a trial at…

Appeal by Francis V. Greene and others 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 their motion to vacate and set aside a subpcena theretofore issued in the proceeding, requiring them to appear before a commissioner therein named and be examined as witnesses in favor of the complainant in an action pending in the Court of Chancery, wherein the…

Appeal by the defendant, Metropolitan Traction 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 22d day of April, 1901, granting, upon payment to the defendant of $25 costs, plaintiff’s motion to open his default beftire a referee appointed to determine questions arising ón a motion made by the plaintiff to substitute the Metropolitan Street Railway Company for the…

Appeal by the relator, William H. Mesick, 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 4th day of March, 1901, upon the decision of the court rendered after a tidal at the New York Trial Term, a jury having been waived, dismissing an alternative writ of mandamus upon the merits. ■ On the 28th day of April, 1897, the foreman of repair shops of the New York fire department resigned his…

Appeal by the defendants, John R. Yoorhis and others, commissioners of election, constituting the board of elections of the city of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of Hay, 1901, directing the issuance of a peremptory writ of mandamus against defendants, as the commissioners of elections constituting the board of elections of the city of Hew York,…

<p>A tenant’s leasehold interest in land is personal property, and is taxable under thee Transfer Tax Act,</p> <p>A tenant’s leasehold interest in land is personal property within the meaning of section 321 of the Tax' Law (Laws of 1896, chap. 908), which provides that transfers to children of a decedent shall be exempt from the transfer tax unless the subject thereof is “ personal property of the value of ten thousand dollars or more,” notwithstanding that buildings erected by the tenant and reserved to him by the lease may be assessed against such tenant as land under the Tax Law,</p> <p>Ingraham and O’Brien, JJ., dissented.</p>

Appeal by the defendants,.Henry G. F. Koch and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 8th day of February, 1901, upon the verdict of a- jury for $6,000, and also from an order entered in said clerk’s office on the 21st day of February, 1901, denying said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Margaret J. Dunham and others, from a. judgment of the Supreme Court in favor of the plaintiff, adjudging that a instrument purporting to be the last will and testament of Margaret Dunham, deceased, was not such last will and testament, entered in the office of the clerk of the county of New York oh the 22d day of March, 1901, upon the verdict of a jury, and also from an order entered in said 'clerk’s office on the 29th day of March, 1901, denying…

<p>Appeal by the plaintiff, William Osatlos, an infant, by John Csatlos, his guardian ad litem, from an order of the-Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of June, 1901, denying his motion for a resettlement of the case on appeal.</p>

- Appeal by the plaintiff, Israel Stone, a resident and taxpayer of the city of New York, from an order of the Supreme Court, made-at the New York Special Term and entered in the office of the clerk, of the county of New York on the 23d day of April, 1901, denying; his motion for an injunction pendente lite and permission to file a, bond herein mono pro tuno.

Appeal by the relator, John Conlin, 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 May, 1901, denying his' motion for a peremptory writ of mandamus.

Appeal by the plaintiff, Mary A. Williams, as executrix, etc., of Wallace W. Williams, deceased, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, first district, rendered on the lltli day of February, 1901, dismissing the complaint.

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 Westchester-on the 23d day of February, 1900, on the verdict of a jury rendered by direction of the court.

Appeal by Erastus C. Knight, Comptroller of the State of ¡New York, and another, from a decree of the Surrogate’s Court of Westchester. county, entered in the office of said surrogate on the 13th day of*April, 1901, reversing a former decree of said court which fixed a transfer tax upon a fund over which Olive M. Seaver exercised a power of appointment conferred by the will of William A. Seaver, deceased.

Appeal by the defendant, The City of Mount Vernon, 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 28th day of February, 1901, upon the decision of the court rendered after a trial at the We'stchester Special Term.

Appeal by the original plaintiff, Antoinetta Harney, from a judgment of the Supreme Court in favor of the defendant William H. Harney, entered in the office of the clerk of the county of Kings •on the 15th day of January, 1900, upon the decision of the court, rendered after a trial at the Kings Cou'nty Special Term, dismissing the complaint. The appeal was argued June 7, 1900, and on June 29, 1900, the original plaintiff died.

<p>Appeal by. the defendant, Eugene Yan Schaick, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 22d day of March, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a démurrer to'new matter set up in the answer to the complaint.</p>

Appeal by. the defendants, Eugene Lamb Richards, Jr., and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 23d day of March, 1901, upon the decision of the court, rendered after a trial at the Dutchess County Special Term, overruling a demurrer to the complaint.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme' Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of February,-1901, upon the verdict of a. jury, and also from an order entered in said clerk’s office on the 20th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Yonkers Railroad Company, from a judgment of the City Court of Yonkers in favor of the' plaintiff, entered in the office of the clerk of said court on the 30th day of November, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5.th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Ellen Killilea, from a judgment ef the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of March, 1901, upon the decision of the court rendered after a trial before the court, a jury having been waived.

Appeal by the defendant, John McCuIlagli, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric o.f the county of Orange upon the decision of the court, rendered after a trial at the Orange Special Term.

<p>Appeal by Eliza B. Smallwood from an order of the Supreme Court, made at the Queens County Special Term and entered in the. office of the clerk of the county of Queens on the 3d day of J une,, 1901, denying her motion for a writ of mandamus.</p>

<p> Negligence—alighting from a street car while in motion. </p> <p>Whether it is contributory negligence for a person to alight from a street car while it is in motion is a question of fact to be determined by the jury upon all the evidence.</p>

Appeal by the plaintiff, Clerihew Rutan Treat, 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 8th day of April, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term in an action for the construction of a-will.

Appeal by the defendants, George W. Johnston and another, trading under the name of Seed Filter Company, from a judgment of the Municipal Court of the city of Néw York, borough of Brooklyn, in favor of the plaintiff.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 17th day of January, 1901, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 23d day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Attorney and client — an attorney having a contingent fee cannot, where the client • has settled the action, sue to enforce his lien—his remedy in such a case.</p> <p>"Where an attorney brings an action, on behalf of a client who is financially irresponsible, to recover damages for personal injuries sustained by the client, under a contract by which he is to receive one-half “of the verdict recovered in said action,” and after the action is at issue the client, without the knowledge of the attorney, settles the action and in consideration of a certain sum paid to him executes to the defendant, who has notice of the attorney’s lien, a general release of the cause of action, and then leaves the country without paying the attorney, the latter cannot maintain an equitable action against his client and the defendant to enforce his lien.</p> <p>Semble, that his only remedy is to. have the release set aside and then to continue the action for the enforcement of his lien.</p> <p>Qurnre, whether the attorney could bring an action at law against the defendant to recover the damages sustained by him in consequence of the settlement.</p>

<p> Costs—not awarded personally, against one swing as trustee, whose appointment was void. </p> <p>Where the Supreme Court makes an order removing the trustee named in articles of separation between a husband and wife, and appoints a substituted trustee, and the latter brings an action against the husband to recover certain sums due under the articles of separation, and recovers a judgment therein, which is affirmed by the Appellate Division and reversed in the- Court of Appeals on the ground that the court had no jurisdiction to remove the original trustee and to appoint the plaintiff in her place, the remittitur reciting that the Court of Appeals “did order and adjudge that the judgments below be and the same hereby are reversed and complaint dismissed, with costs in all courts,” the defendant on his motion for judgment on the remittitur is not entitled to have the costs awarded against the plaintiff personally.</p>

Appeal by the plaintiff, Charles M. Davidson, 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 Queens on the 19th day of April, 1901, staying all proceedings in the action on the part of the plaintiff until the decision of the Court of Appeals on an appeal from a judgment of the Supreme Court in an action wherein Frank & J. G. Jenkins, Jr., a corporation, is plaintiff and The John Good Cordage…

<p>Wiü — a limitation over of “the sha/i'e of such of my children as may be deceased,” held to apply to a death before that of the testator.</p> <p>The will of a testator after giving a life estate in his property to his widow provided: “ Upon the death of my said wife or in case she does not survive me, I give, devise.and bequeath.to my three children, namely, George Albert, and Charles Willis, and Christina Evelyn, the wife of S. W. Simmons, all my estate, real and personal, to be divided between them share and share alike, the share of such of m;r children as inay be deceased to be divided equally among his or her heirs if any there be, the share of such child or children to be held' in trust and placed at interest on good security until said heir or heirs have attained their majority, but in case there should be no such heir or heirs or such heirs should be deceased before they have attained their majority, then and in that case the share of such heir or heirs shall be equally divided among my surviving children.”</p> <p>The testator’s widow and all of his children survived him, but his son Charles</p> <p>< Willis died before the widow.</p> <p>Held, that the remainder limited to Charles Willis vested immediately upon his father’s death;</p> <p>That, in making the provision for the devolution of the shares of such of his. children “as may he deceased” the testator contemplated a death during, his-own lifetime.</p>

<p>Jffegligenoe—accident due to ths slipping of the hand of a passenger, standing on the running board of an.open street can', from the upright stanchion — motion to amend.</p> <p>Upon the trial of an action to recover damages for personal injuries sustained by ■ the plaintiff while a passenger upon one of th'e defendant’s open street cars, it appeared that the plaintiff boarded the car upon the assurance of the conductor that there was sitting room therein; that he found none, and was forced to stand up between the seats; that, in consequence of the car taking on more passengers, it became so overcrowded that he was obliged to stand with one foot on the running board and one on the bottom of the car, clinging to one of the ' uprights or stanchions by his left hand in which he also held an umbrella; that it was raining at the time and that the car was running very fast with a jolting motion; that, after clinging to the stanchion for half an hour, his hand slipped and he fell to the ground.</p> <p>It did not appear that the slipping of his hand was due to any sudden or unex pected motion of the car, the plaintiff’s statement being that “it was raining and my hand slipped from the uprights.”</p> <p>The sole allegation of negligence contained in the complaint was that the defendant’s servants “so carelessly, negligently and unskillfully conducted themselves in the management of said Car as to suddenly and without warning jerk and move said car forward with.a sudden jerk and quick motion, thereby throwing the plaintiff with great violence from said car.”</p> <p>The defendant, having moved to dismiss the complaint at the close of the plaintiff’s case on the ground that the plaintiff fell because his hand slipped, the plaintiff’s counsel asked leave to amend the complaint so as to make it conform to the facts proved. Subsequently the plaintiff’s counsel applied for leave to withdraw a juror so as to set up new matter of negligence, the nature of which was not disclosed. The court thereupon ruled that the motion to amend was not before it and, on the motion for leave to withdraw a juror, recalled the plaintiff who testified that, at the time he fell, the car was moving the same as it had been.</p> <p>The motion for leave to withdraw a juror was thereupon denied and the motion to dismiss the complaint granted.</p> <p>Held, that the judgment dismissing the Complaint should be affirmed;</p> <p>That the motion to amend the complaint so as to conform to the facts proved was unavailing because the facts proved failed to establish the defendant’s liability, as it was not enough for the plaintiff to show that the defendant .was negligent but he was also obliged to prove that such negligence caused the accident;</p> <p>That it was not error to deny the motion to amend even though a new action would be barred by the Statute of Limitations, as the nature of the new matter of negligentfe which the plaintiff desired to incorporate in his complaint was -.not disclosed.</p>

<p> Negligence—injury to an employee from the improper piling of hags of cement in a storehouse. </p> <p>Contractors engaged in constructing a street railway perform their duty, with ■ respect to the handling of bags of cement to be used in the execution of the work, by furnishing a safe place of storage, competent men to handle the cement, a skillful superintendent and foreman to supervise the various processes of storing and removing it, and by inspecting its state and condition with reasonable frequency; if the contractors perform this duty they are not liable for injuries sustained by an employee because of negligence in the .manual work of piling or removing the cement, whether such negligence was that of the superintendent, foreman or a common laborer; such negligence is that of a fellow-servant and is assumed by the injured employee as a risk of the employment.</p> <p>Any danger arising from the condition of the bags, which was, or might be, due to the negligence of a fellow-workman would not render the storehouse an unsafe place to work in in a legal sense.</p> <p>If the act or omission whic i created the danger was not one for which the contractors were directly liable to respond in damages, they cannot be held liable ' until at least the condition has existed long enough to charge them with a failure of duty in some feature of their direct obligations.</p>

<p>Indictment for murder — conviction of manslaughter — the question, as to the application of the Statute of Limitations tarring a conviction for the latter offense, ■ under an indictment for murder not found within five yearrs, how pi'esetited.</p> <p>July 2, 1886, at Bast Fishkill, Dutchess County, N. Y., Peter Austin killed Charles Brower in an altercation. During all the time until the summer of 1900, when the crime was discovered, Austin was within the State and county where the crime was committed. On September thirteenth of that year Austin . was indicted for murder in the second degree.</p> <p>Section 141 of the Code of Criminal Procedure provides that a prosecution for murder “may be commenced at any time after ti e death of the person killed; ” .section 142 provides that “ an indictment for a felony other than murder must be found within five years after its commission, except where a less time is prescribed by statute; ” section 444 provides that “ upon an indictment for a crime consisting of different degrees the jury may find the defendant not guilty of the degree charged in the indictment and guilty of any degree inferior thereto or of an attempt to commit the crime.”</p> <p>Upon the trial, at the close of the whole case and before the judge’s charge, Austin’s counsel moved ‘ ‘ that the prisoner he discharged upon the ground that he could not be convicted as charged, for the reason that owing to the lapse of time he could not be convicted of manslaughter.” He made no request, however, for a charge that a conviction could not be had for manslaughter. The jury found Austin guilty of manslaughter in the second degree and the counsel, without objecting to the reception of the verdict, thereupon moved “ on the indictment, on the evidence, the certificate of conviction, and upon the whole record of the case, the defendant he discha/rged upon the ground that the Statute of Limitations was a bar to any prosecution for the crime of manslaughter. And upon the same grounds in arrest of conviction and of the judgment to be entered thereon.”</p> <p>Held, that the motions were properly denied;</p> <p>That, as the defendant had voluntarily taken advantage of the verdict, he was not entitled to be discharged unless it appeared that there was not sufficient evidence to convict him of any crime;</p> <p>That the question whether a conviction for manslaughter was barred by the Statute of Limitations was not properly raised at the trial and should not be decided.</p> <p>Semble, that that question could only be raised by proof upon the trial under a plea of not guilty, and by some appropriate motion or request to charge.</p>

Appeal by the defendants, Arthur Kelter 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 Kings on the 15th day of ¡November, 1900, upon the. decision of the court rendered after a trial at the Kings County Trial Term, a jury having been dismissed.

<p>False imprisonment—-what deposition as to arson does not confer jurisdiction on the 'magistrate—a verdict for §800 held not to he excessive. •</p> <p>The following deposition, “Peter Seery, of No. 167 East 67th Str., B. of M. (Avenue), Street, aged years, occupation Fire Marshal, being duly sworn, deposes and says, that on the 27th day of December, 1898, in the Borough of Richmond, in the City of New York, and County of Richmond, at Grant City, one Ellen B. McKelvey violated section 486 of the Penal Code of the State of New York by setting on fire a. certain dwelling located on Washington Avenue, Grant City, in the night time, in which there was at the time a human being, to wit, one Wonde Lawrence. The information on which this complaint is founded has been received from the said Wonde Lawrence, who in his sworn statement has stated that the said Ellen B. McKelvey had offered to give him (Wonde Lawrence) the sum of one hundred dollars (§100 00/00) if he would fire the place. Wherefore deponent prays that said defendant may be apprehended and dealt with according to law,” is not sufficient, under sections 148-150 of the Code of Criminal Procedure, to confer jurisdiction on a police magistrate to issue a warrant for the arrest of the person accused, and does not constitute a defense to the magistrate in an action brought against him by the accused to recover damages for false imprisonment because of her arrest and incarceration pursuant to such warrant.</p> <p>Semble, that the deposition would have been sufficient had it terminated with the positive allegation that the accused had committed the crime charged in viola- ’ tion of section 486 of the Penal Code.</p> <p>A verdict of §800, rendered in favor of the plaintiff in an action to recover damages for the false imprisonment, will not be set aside as excessive where it appears that she was imprisoned seven hours and stripped naked before the gaze of strange men.</p>

<p> Receiver under a mortgage foreclosure—he is not entitled, to the cash assets of the mm'tgagor, a railroad, company—right thereto of a receiver appointed in sequestration proceedings. </p> <p>An order, appointing a receiver pendente lite in an action to foreclose a mortgage executed by a railroad corporation upon its property, which not only appoints him receiver of the mortgaged property but also of the corporation itself and of property of the corporation not covered by the lien of the mortgage, is a nullity to the extent that it appoints him receiver of the corporation and receiver of property not covered by the mortgage and will bé so declared on the motion of a permanent receiver of the corporation subsequently appointed in an action brought by a judgment creditor thereof to sequestrate its property.</p> <p>Where a railroad corporation executes a mortgage, covering the railroad property, .real and personal, in most ample terms “with all and singular the appurtenances to the aforesaid premises belonging, and the rents, income and profits of the same,” which states that it is subject to the continued possession and management by the railroad company of the property, “including the receipt of the rents, income, issues and profits aforesaid,” and that nothing therein contained shall be construed to prevent it “from collecting monies due or to become due to said company as and for the earnings, rentals and other profits of its property,” the lien of such mortgage does not embrace cash earned and actually collected by the corporation in the course of its management and operation of the railroad.</p>

Appeal by Joseph B. Lewis and others 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 Richmond on the 13th day of February, 1900, determining that John J. Thomasson has a lien amounting, with costs, to $486.73 upon a fund in the hands of the sheriff of the county of Richmond, and directing payment thereof, and also from an older of' reference entered in said clerk’s office on the 24th day of…

Appeal by the plaintiff, Joseph Santoro, by Vito D. Santoro, his guardian ad litem, 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 Queens' on the 9th day of October, 1900, changing the place of trial of the action- from the county of Queens, to the county of Oswego.

Appeal by the plaintiff, Bridget Reilly, as'administratrix, etc., of Thomas Reilly, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 28tli day of November, 1900, upon the dismissal of the complaint by direction of the court upon the opening of the case after a trial at the Orange Trial Term.

Appeal by the plaintiff, Motel Sternberg, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, rendered on the 15th day of February, 1901, dismissing the complaint upon the merits.

Appeal by the defendant, Charles R. Hartmann, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, upon the verdict of a jury, rendered by direction of the court.

Appeal by the plaintiff, Oscar Richter, as trustee in bankruptcy of David M. Torrey, bankrupt, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of April, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term sustaining a demurrer to the complaint.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 6th day of April, 1900, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 20th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Amended complaint — an allegation as to residence held to refer to the time of the commencement of the action.</p> <p>An allegation contained in an amended complaint in an action brought in the City Court of Yonkers, which is a court of limited jurisdiction, averring “that the defendant is a resident of the City of Yonkers, N. Y.,” will be presumed to refer to the defendant’s residence at the' time of the commencement of the action unless controlled by other allegations showing a contrary intention.</p>

<p>Seduction under promise of marriage — not established where the consent was obtained under a special and conditional promise.</p> <p>Upon a trial, under an indictment charging the defendant with the crime of seduction under promise of marriage, it is error for the court to refuse to charge that “ if the prosecutrix submitted herself to the defendant, relying upon his promise that if she got into trouble as a result of the intercourse he would marry her, the defendant is not guilty,” where there is evidence which would justify a finding that, although the defendant and the prosecutrix were engaged to be married at the time of the alleged seduction, the consent of the prosecutrix was obtained on the special and conditional promise alluded to in the request to charge.</p>

Appeal by the plaintiff, the Far Rockaway Bank, from a judgment of the Supreme Court in favor of the defendant, Franklin 0. Norton, entered, in the office of the clerk of the county of Queens on the 16th day of October, 1900, upon the report of a referee.

<p>Certiorari issued out of the Supreme Court and attested on the 31st day of July, 1896, directed to Patrick J. Gleason and others, composing the board of fire commissioners of Long Island City, commanding them to certify and return to the office of the clerk of. the county of Queens all and singular their proceedings in relation to the removal of the relator from the position of engineer of thte fire department of Long Island City.</p>

<p>Appeal by the complainant, Albert W. S. Proctor, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 10th. day of January, 1901, dismissing a proceeding brought by the complainant to review the action of The Kings County Republican General Committee in enrolling the name of George F. Elliott as a member of said committee, and declaring him to be and recognizing him as a member of said committee.</p>

<p>Forgery—signature to a consent that a liquor tax certificate he issued—preponderance Z of proof.</p> <p>In a proceeding for the cancellation of a liquor tax certificate instituted on thei ground that the alleged signature of the owner of a dwelling, within 200 feet, of the nearest entrance to the premises,, to a written consent to the issuance of the certificate, was a forgery, the owner testified that he had been a Prohibitionist for forty years and that he would not sign such a paper for anybody and that he would almost as soon sign his own death warrant. ■' He also stated that he did not recollect ever seeing the person who purported to have signed the consent as a subscribing witness, but. stated it was barely possible that he had signed the consent and did not recollect it; he further admitted that the signature to the consent looked like his and signed his name twice in court.</p> <p>The person who purported to have signed the consent as a subscribing witness testified that he secured the owner’s signature to the consent at the latter’s residence and gave a minute and circumstantial account of the transaction. ■ His testimony was supported by a comparison of the disputed signature with the genuine ones.</p> <p>JSeld, that a finding that the owner did not sign the consent was opposed to the clear preponderance of evidence and that the proceeding should be dismissed.</p>

Appeal by the plaintiff, Charles P. Metcalf, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 17th day of November, 1900, upon the decision of the court rendered after a trial at the Suffolk Special Term.

Appeal by the defendant, The City of Yonkers, 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 6th day of July, 1900, upon the decision of the court rendered after a trial at the Westchester Special Term, vacating and setting aside an assessment levied upon the property of the plaintiff, and enjoining and restraining the collection thereof.

<p>Trespass — an entry by a civil engineer wpon land in New York city, for the purpose of making a city map, is not a trespass —the Greater New York charter need not be pleaded.</p> <p>A civil engineer in the employ of the board of public improvements of the city of New York, who under the direction of the president of that board enters upon premises for the purpose of making a survey, preliminary to making a map of the city of New York as provided by the Greater New York charter (Laws of 1897, chap. 378), is not guilty of a trespass unless he abuses his authority.</p> <p>The Greater New York charter is a public statute and need not be pleaded by the engineer in order to entitle him to justify thereunder.</p>

<p>Tripartite contract for the sale of a liquor, business — liability Of a brewing company, engaging to pay a specified sum to- the vendor when the vendee should have purchased a certain amount of beer — “receive” not construed as “ collect” — the brewing company not bound to enfoixe a chattel mortgage—construction by acts of the parties— estoppel. ■</p> <p>Thomas S. Maloney, the Iroquois Brewing Company and John H. Mallon entered into a tripartite agreement consisting of three distinct undertakings:</p> <p>1. The agreement on the part of Maloney to sell' the good will of his saloon business and the furniture connected with it to Mallon.</p> <p>2. The agreement of Mallon to pay the Iroquois Brewing Company the sum of §2 per barrel for each barrel of beer purchased by him of it, in addition to the regular price, until he should have paid the brewing company the sum of $1,200; the execution by Mallon to the brewing company of a chattel mortgage upon the personal property purchased by him of Maloney to secure the performance of his (Mallon’s) part of the contract, and, as further security to the same end, the assignment by Mallon to the brewing company of the lease of the premises in which the business was conducted, and the procurement by Mallon of the consent of the landlord to such assignment,</p> <p>3. The agreement on the part of the brewing company that, it would “receive said money, and when the sum of $1,200 shall have been received, as provided,” it would pay Maloney the sum of $3,000.</p> <p>■Mallon paid the additional $2 a barrel for the beer purchased by him for some timé, but he never assigned the lease of the premises to the brewing company. During the time when Mallon was making his additional payments to the brewing company the latter made advances to Maloney exceeding the amount of the additional payments which it had received from Mallon, but when Mallon made default in the additional payments, it refused to make further advances. It, however, did offer to assign to Maloney the chattel mortgage executed by Mallon, but Maloney declined to accept the mortgage and brought an action to compel the brewing company to pay to him the balance of the . §3,000 which he was to receive as the purchase price of the property sold to Mallon.</p> <p>Held, that the brewing company was not liable to pay the §3,000 to Maloney until it had received from Mallon §1,200 to be composed of the extra §2'paid by Mallon for each barrel of beer purchased by him of it;</p> <p>That the' words “ receive ” and “ received ” as used in the contract could not be construed as synonymous with “ collect” and “collected,” especially as it appeared that the contract was drawn by Mallon’s attorney under the supervision of Maloney’s attorney and that the brewing company had no legal representative in the matter and for the further reason that the brewing company knew that Mallon was not financially responsible;</p> <p>That the fact that the chattel mortgage executed to the brewing company by Mallon contained the usual stipulation authorizing the mortgagee to take possession of the mortgaged property in the event of a default, did not impose on the brewing company any obligation tJ collect from Mallon the additional payments;</p> <p>That the advances made by the brewing company to Maloney during the time when Mallon was making his additional payment of two dollars per barrel did not operate to place a different construction on the contract, as it is only in cases where the language of a contract is indefinite or ambiguous that the acts of the parties are received as a practical construction thereof;</p> <p>That the brewing company was not estopped to deny that the certificate of renewal of the chattel mortgage filed by its treasurer was erroneous in its statement of the amount due, where it appeared that "the error was due to a mistake, and that no one was misled to his prejudice thereby.</p>

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

Appeal by the plaintiff, James B. Hotchkiss, 'from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the-county of Erie on the 2d day of November, 1900, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 13th day of October, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of October, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Gertrude L. Tallman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 25th day of January, 1901, upon the report of a referee.' In May, 1896, the plaintiff discounted a note of $4,000 made by one Henry C. Tallman and indorsed by Frederick H. Lawrence, as executor of the estate of George C. Tallman, deceased, and by Edward A. Tallman.

Appeal by Rollin H. Smith, as administrator with the will annexed of- Christopher B. Leigh, deceased, from a decree of the Surrogate’s Court of the county of Herkimer, entered in the office of said surrogate on the 7th day of March, 1900, settling the accounts of Seth M. Richmond, as executor and trustee of the last will and testament of Christopher B. Leigh, deceased, and also from an order entered in said office on the 19th day of July, 1899, directing the piayment of…

<p>Appeal by Henry Van De Veer, as executor and trustee under the will of Sarah A. Rector, deceased, from a decree of the Surrogate’s Court of the county of Onondaga, entered in the office of said surrogate on the 20th day of September, 1900, confirming the report of a referee and settling his accounts as executor and trustee under the will of Sarah A. Rector, deceased.</p>

Appeal by the defendant, Quincy W.'Wellington, from an order of the Supreme Court, made at the Steuben Trial Term and entered in the office of the. clerk of the county of Steuben on the 24th day of September, 190.0, denying the defendant’s motion for a new trial made upon the minutes upon the rendition of a verdict of a jury in. favor of the plaintiff after a trial at the Steuben Trial Term.

Cross-appeals by the plaintiffs, Amos M. Bulter and. others, suing on behalf of themselves and all others who may join herein, and by the defendant, the Leighton Lea Association, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 13th day of March, 1901, upon the decision of the court rendered after a trial at the Monroe Special Term. ■

Appeal by John G. Langham and others, constituting the board of inspectoi’s of election of the town election- held in the town of Fleming, Cayuga county, 1ST. Y., February 19, 1901, from an order of the Supreme Court, made at the Cayuga Special Term and entered in the office of the clerk of the county of Cayuga on the 29th day of April, 1901, granting a peremptory writ of mandamus requiring them to reconvene and reject all ballots received by them for and against the four…

Motion by the plaintiff, The P. Cox Shoe Manufacturing Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a non-suit granted by the court after a trial at the Monroe Trial Term.

Appeal by the defendants, Virginia V. Bell and another, as executors, etc., of Frederick A. Bell, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 23d day of January, 1901, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the plaintiff, Harry H. Crouch, from a judgment of the County Court of Monroe county in favor of the defendants, J. George Wagner, Jr., and another, entered in the office of the clerk of the county of Monroe on the 21st day of January, 1901, upon the decision of the court rendered upon an appeal from a judgment in favor of the plaintiff rendered by the Municipal Court of the city of Rochester.

Appeal by the relator, the Mohawk and Malone Railway Company, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Herkimer on the 26th day of March, 1901, overruling the relator’s motion for judgment on the return of the defendants to a writ of certiorari' theretofore issued, and adjudging that the assessment of the relator is valid and appointing a referee to take evidence and report under section 253…

Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of February, 1901, upon the verdict of a jui’y for $3,100, and also from an order made at the Erie Special Term and entered in said clerk’s office on the 13th day of February, 1901, denying the defendant’s motion for a new trial made upon a case and exceptions.

Appeal by the plaintiff, Andrew J. Slade, from a judgment of the Supreme Court in favor of the defendant, Frank Boutin, Junior, entered in the office of the clerk of the county of Niagara on the 21st day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Niagara Trial Term, and also from an order entered in said clerk’s office on the 13th day of September, 1900, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendants, Robert B. Adam and others, as grade crossing commissioners of the city of Buffalo, from a judgment and order of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 4th day of March, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, directing the issuance of a peremptory writ of mandamus.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 17th day of February, 1900, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 22d day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>Declaration of beneficiaries under a will, as do the competency of the decedent — they an'e incompetent on an application for its probate.</p> <p>Where a will is attacked on the ground that the testator was incompetent to make the same, different admissions or declarations as to the mental condition of the testator, made respectively hy each one of the persons who would take as tenants in common under the will, at different times and in the absence .of the other tenants in common, are inadmissible.</p>

<p> Measure of assessment for a trunk sewer, on outlying territory which may thereafter use it—review thereof, when by certiorari and not by action—effect of an inadvertent repeal of an act subsequently re-enacted—legalization of acts done thereunder by subsequent legislation. </p> <p>Where a municipal corporation constructs a trunk sewer intended to provide sewerage, not only for premises along its route, hut for such outlying territory as may conveniently use it by connecting therewith through lateral sewers, it is proper to apportion upon the territory which has immediate need of the sewer and can make use of it at once a sum sufficient to pay for a sewer for its own use, and upon the more remote territory such sum as will pay for the enlargment of the sewer, made necessary to meet its requirements.</p> <p>How far the commissioners of sewerage may speculate as to future benefits to result from the construction of the sewer, considered.</p> <p>The remedy for an inequality in an assessment for a local improvement due, not to the adoption of an erroneous principle of assessment, but to an imperfect application of a correct principle, is by certiorari and not by an action to set the assessment aside.</p> <p>Semble, that an inadvertent inclusion in the schedule of laws repealed, annexed to the Liquor Tax Law (Laws of 1896, chap. 110), of chapter 744 of the Laws of 1895, relating solely to the construction of a sewer in the city of Rochester, did not operate to repeal the latter act.</p> <p>Semble, that the Legislature has power to legalize acts of the commissioners done in accordance with the directions of a repealed statute, thereafter re-enacted.</p>

<p>Tax sale to the eity of Buffalo — it is not affected by the subsequent levying of taxes — subsequent sales are subject to the interest acquired by the city.</p> <p>The interest acquired hy the city of Buffalo in land which the comptroller thereof bids in at a tax sale, pursuant to its charter (Laws of 1891, chap. 105, § 110), is not affected by taxes subsequently levied upon the land, nor extinguished by sales under them, notwithstanding that it has taken no steps to extinguish the right of redemption after the sale to it and has continued to assess the premises as before.</p> <p>The sale of the lands to an individual at a subsequent tax sale does not affect the prior tax liens held by the city, and it was, therefore, competent for the Legislature, by chapter 280 of the Laws of 1898, to require such an individual, as a</p> <p>condition of his obtaining a conveyancé under the sale to him, to take and pay foran assignment of the outstanding prior tax liens held by the city upon the premises, and to provide that this statute should apply to a tax sale held before its enactment.</p>

Appeal by the plaintiff, Jonas P. Yarnum, as receiver of the property transferred by Thomas Bolton to Catherine Bolton, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Monroe on the 23d day of April, 1900, upon the report of a referee, as dismisses the complaint as to the defendant Herman Behn. Also an appeal by the defendant, the Bolton Shoe Company, from the whole of said judgment.-

<p>Exemption from taxation of land rf the Beligious Society of Prienda — what, portion is exempt—effect of the recognition of the society as an association for religious purposes.</p> <p>The Religious Society of Friends owned four hundred and sixty-seven acres of land on which it conducted an institution for the education of Indians. Crops were raised on eighty acres of plough and meadow land and a number of acres of cleared land were used for the pasturage of stock. The plough and meadow land and the pasture land produced more than sufficient for the requirements of the school and the surplus was sold and devoted to school uses. Fifty acres were used as a wood lot for the sole use of the institution and also for the pasturage of cattle. The remaining land was timber land which was not used for any purpose and produced no revenue.</p> <p>Held, that under section 4 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 371), relating to the exemption of the real property of an association organized exclusively for religious or other purposes defined in the statuté, only the eighty acres of plough and meadow land and the pasture land were exempt from taxation;</p> <p>That under sections 93 and 93 of the Religious Corporations Law (Laws of 1895, chap. 733), the Society of Friends was recognized as an association organized for religious purposes.</p> <p>Qucere, whether such recognition operated to make the society a corporation.</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, éntered in the office of the clerk of the county of Wayne on the 25th 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 25th day of January* 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Reuben A. Scofield, as receiver of the First Rational Bank of Penn Yan, from the following portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 14th day of February, 1901, upon the report of a referee, viz: From that part of .said judgment which, as against this defendant, directs that the mortgage set up in the complaint be reformed so as to include all the parcels of land in said…

Motion by the plaintiff, Charles D. Marshall, as trustee of the trusts created under a certain deed, dated January 1, 1856, executed by Herman B. Potter (now deceased) to George E. Babcock and others, .for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a verdict rendered by direction of the court.

<p>Appeal by the defendant, the Niagara Junction 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 Niagara on the 19th day of January, 1901, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 19th day of January, 1901, denying the defendant’s motion for a new trial made puon the minutes.</p>