Volume 63 — New York Supplement

<p>1. Damages — Injuries to the Person — Excessive Damages.</p> <p>An allowance of $1,200 is excessive for injuries consisting of two broken ribs, causing a permanent enlargement of the parts, and four cuts on the face, extending through to the bone, leaving permanent scars, such injuries confining plaintiff to the house for a month.</p> <p>3. Same — Loss op Earning Capacity.</p> <p>In the absence of any allegation or1 proof as to loss of earning capacity due to personal injuries, plaintiff is entitled to nominal damages only for such loss.</p> <p>McLennan, J., dissenting.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Milton Schnaier against Pinkus Nathan. From a judgment for plaintiff, defendant appeals.</p>

In the matter of the petition of the New York Central & Hudson River Railroad Company and the New York & Harlem Railroad Company. Appeal from an order denying application to vacate assessment.

<p>New Trial — Nbwly-Discovered Evidence.</p> <p>■ Where, from the character of the proof offered, it appears that 'plaintiff was not fully advised as to the defenses to be interposed, a new trial should be granted for newly-discovered evidence to meet them.</p>

Action by the First National Bank of Ft. Worth, Tex., against the American Exchange National Bank. Plaintiff moved for judgment on a verdict for it, directed by the trial court, subject to the opinion of the appellate division. Judgment for plaintiff.

<p>Appeal from trial term, New York county.</p> <p>Action by Laura Werner against Oarmimo Padula and another. From a judgment for plaintiff (60 N. Y. Supp. 553), defendants appeal.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Union Associated Press against Perry S. Heath for libel. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Complaint — Striking Out Allegations.</p> <p>But one definite cause of action being stated in the complaint, an action for damages from defendant’s breach of duty as plaintiff’s agent, in that plaintiff, being a creditor of the I. Co., gave defendant a power of attorney to settle the claim, and defendant accepted in settlement worthless securities of the N. Co., other averments, which are but statements of the evidence, should be stricken out, and likewise irrelevant allegations, unless they may be pleaded as separate causes of action, and plaintiff so wishes to plead them, in which case such causes must be separately stated and numbered.</p>

Action by William L. Porter against Uri Rhoades, as executor of Harvey Tinkham, deceased. From a judgment for plaintiff, defendant appeals. The reference was of a claim against the estate of Harvey Tinkham. This claim arose upon a note executed on the 15th of September, 1872, by Harvey Tinkham, and delivered to his wife, Sarah Tinkham, for the sum of 8094, payable one year from date. Plaintiff claims this note by gift from Sarah Tinkham before her death.

Action by Edward Freeman against Jacob Rothschild, impleaded with Charles L. Eidlitz and others. From a judgment entered on a report of a referee, in favor of Eidlitz and against defendant Rothschild, the latter appeals.

<p>Executors and Administrators — Final Settlement — Reference—Default.</p> <p>Where an executrix was ignorant of an order referring her accounts and the objections thereto to a referee, and all proceedings on the reference were had without serving her with subpoena or notification of any kind, and her attorney omitted to notify her because of his belief that the reference was invalid, the reference will he opened, to allow her the opportunity of sustaining her account as filed.</p>

Action by Friedrich Wilhelm Meyer, suing on his own behalf and on behalf of all other stock and bond holders of the New York China, Glass & Toy Company, against John M. Young and others. From an order denying motion to strike out certain allegations of the complaint, or, in the alternative, to compel the plaintiff to separately state and number the causes of action therein alleged, defendant Young appeals.

Mandamus by the people, on relation of Cornelius O’Connor, against Thomas J. Brady, to compel the reinstatement of relator as inspector of buildings. From an order granting a peremptory writ, defendant appeals.

<p>1. Frivolous Demurrer — Mortgage Foreclosure.</p> <p>Where a complaint to foreclose a mortgage alleged an assignment of the mortgage, hut not of the bond it was given to secure, a demurrer to the complaint as not containing facts sufficient to constitute a cause of action was not frivolous, since the right of the plaintiff to foreclose depended on his title to the bond.</p> <p>3. Subsequent Lien — Demurrer.</p> <p>Where a subsequent lienholder is made a party to an action to foreclose a mortgage, he is entitled to demur to the complaint, and object to the foreclosure of the mortgage by one who has no title to it.</p>

<p>Appeal from trial term.</p> <p>Action by Herman Schiller against Metropolitan Street-Railway Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

Action by the Hecla Iron Works against Edward F. Milliken and others for the foreclosure of a mechanic’s lien. From a judgment for plaintiff, defendants appeal. For former report, see 55 N. Y. Supp. 1141.

Action by Hattie Dietch against Clara Ford for the possession of certain personal property. From a judgment for plaintiff, defendant -appeals.

<p>Corporations — Directors’ Liability — Amendment of Statute.</p> <p>Laws 1899, c. 354, amending the stock corporation law (Gen. Laws, c. 36, art. 2) by providing that no director of a corporation shall be liable to a creditor of the corporation “because of any failure to make or file an annual report, whether heretofore or hereafter accruing,” unless written notice is served, on him within three years, does not apply to actions to enforce such liability, commenced prior to its passage.</p>

<p>■Corporations — Debts—Directors’ Personal Liability — Reports—Failure to File — Statutes.</p> <p>Laws 1899, c. 354, amending Stock Corporation Law, § 30, declaring that no director or officer of a corporation shall be liable to a creditor because of any failure to make and file an annual report, whether heretofore or hereafter accruing, unless written notice is served on him within three years, does not relieve such an officer from liability for failure to make and file such report in actions begun before the passage' of such amendment.</p>

Actions by Edward A. Morrison against the Metropolitan Elevated Railway Company and the Manhattan Railway Company to recover damages to plaintiff’s property from the use of the street by defendants for an elevated railway. From a judgment for plaintiff, defendants appeal.

Action by John D. Schriever against the Brooklyn Heights Railroad Company. From an' order requiring defendant to pay plaintiff’s attorney the amount of his lien on the action, and from an order denying defendant’s motion for a reargument (61 N. Y. Supp. 644, 890), defendant appeals.

<p>Libel — Defense—Agreement to Release.</p> <p>Where complaint for libel alleges that defendants published and circulated, and caused to be published and circulated, copies of a certain newspaper containing the libel, no defense is set up by the answer denying publication of the newspaper by defendants, and alleging an agreement between plaintiff and the owners and publishers of the paper releasing such owners and publishers from liability on account of the libel.</p> <p>Van Brunt, P. J., and Patterson, J., dissenting.</p>

<p>Appeal from special term.</p> <p>Action by Augusta G. Genet against the president, managers, and company of the Delaware & Hudson Canal Company. From a judgment in favor of defendant, plaintiff appeals.</p>

Action by Bridget Quinn, administratrix of Patrick P. Quinn, deceased, against William P. Baird. From a judgment entered on dismissal of the complaint on a trial without a jury, plaintiff appeals.

Proceeding by William Bayard Cutting against Eleanor Mar- • garette Hamilton and others to be discharged as trustee under the will of Charles Kennedy Hamilton, deceased. From an order accepting Cutting’s resignation as trustee, the guardian ad litem of one of the cestuis que trustent appeals.

<p>Mortgages — Motion for Receiver — Adjudication as to Rents.</p> <p>On a motion to have a receiver appointed in a suit to foreclose a mortgage, it is error to adjudicate on conflicting claims of several mortgagees to the rents.</p>

<p>Appeal from special term.</p> <p>Action by Lorimer G. Appleby, trustee, etc., against Sophia Sewards and others. From a judgment in favor of plaintiff, defendants .appeal.</p>

Application by Julius Scharmann for a decree directing payment of his judgment by Sophia Blust, administratrix of Gustav Froeschle, deceased. From a surrogate’s decree for petition, the administratrix appeals.

<p>Injunction — Repairs—Liability to Tenant.</p> <p>Where plaintiff, a lessee of defendant, sought an injunction pendente lite to restrain defendant from making repairs to the building occupied by plaintiff, and it appeared defendant had disposed of the premises previous to the acts complained of, and his vendee had taken possession under the contract of sale, and made the repairs on his own responsibility, the injunction was properly refused, as no cause of action was shown against the defendant.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Owen O’Donnell against the International Navigation Company. Judgment for defendant, and plaintiff appeals..</p>

In the matter of the judicial settlement of the accounts of Bridget O’Neill, as administratrix of Catherine Nolan, deceased. From a decree disallowing a claim of the administratrix against the estate of the deceased, and settling the accounts, the administratrix appeals.

<p>Appeal Bond — Sureties—Action.</p> <p>In an action on an undertaking on appeal from a judgment for plaintiff in ejectment, conditioned for the payment of all costs and damages which might he awarded against the appellant, and also, if the judgment should be affirmed, for the payment of the value of the use and occupation of the premises, where a judgment was rendered against appellant, and notice thereof was duly served on the sureties on the undertaking before action thereon, as required by Code Civ. Proc. § 1309, a judgment against the sureties for the use and occupation of the premises during the pendency of the appeal should be affirmed.</p>

Action by Frederica M. Poillon against John J. H. Poillon to recover an allowance agreed to be paid under a contract of separation between the parties as husband and wife. From a judgment for defendant (61 N. Y. Supp. 582), plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by 'Clara E. Mersereau against James H. Mersereau for a divorce. From a judgment for plaintiff, defendant appeals.</p>

Action by Bichard A. Saalfield against William Bayard Cutting. From an order denying a motion to strike out the original, the amended, and the second amended complaints, plaintiff appeals.

Action by Edward P. Glor and another against James W. H. Kelly, as administrator of the estate of James H. Kelly, deceased. From a judgment in favor of defendant, plaintiffs appeal.

Action by Susie A. Marshall against Simon Seelig. From a judgment dismissing the complaint on the trial on the ground that it did not state facts sufficient to constitute a cause of action, plaintiff appeals.-

Action by John Cunningham against the Sicilian Asphalt Paving Company. From a judgment for defendant on dismissal of the complaint, and from an order denying a motion for new trial, plaintiff appeals.

<p>Commission to Take Testimony — Affidavit.</p> <p>Under Code Civ. Proe. §, 887, providing that a commission may issue to examine the witnesses named in the affidavit therefor, it is not enough to name them as “Von Eeghen & Co.”</p>

Action by Emma Clark Tweddell against the New York Life Insurance & Trust Company, St. John’s Guild, and another, to compel the transfer of a trust fund to plaintiff. From a judgment for plaintiff, defendant St. John’s Guild appeals.

<p>1. Discovery — Service of Motion.</p> <p>Motion for discovery, made under Gen. Rules Prac. No. 14, and Code Oiv. Proc. § 803 et seq., is an ordinary proceeding in an action, so that under section 799 the petition and notice on which it is begun is to be served on the attorney for the parties, if they have appeared by attorney.</p> <p>2. Same — Showing Made.</p> <p>A petition for discovery, showing that the paper sought is necessary, and that it was in the possession of defendants or had been delivered to their attorney, so that under Gen. Rules Prac. No. 14, subd. 3, it devolved on defendants to show what they did with it or what became of it, and that it is not still under their control, and no effort being made to do this, but the affidavit for defendants being evasive, and not denying the facts stated or giving any reason to believe that the paper is not in the possession and under the control of the party to whom it was delivered, an order for its production is proper.</p> <p>Van Brunt, P. J., and O’Brien, J., dissenting.</p>

Action by Gerard B. Werner and another, infants, by Sophie Werner, their guardian ad litem, against the Franklin National Bank of the City of New York, impleaded with others. From a judgment in favor of defendant bank, plaintiffs appeal. For former opinion, see 58 N. Y. Supp. 107.

<p>Assignment — Enforcement—Action at Law.</p> <p>Under Code Civ. Proe. § 449, requiring that actions be brought in the name of the party- in interest, and sections 1909, 1910, providing that any claim or demand (with certain exceptions) can be transferred, and the transferee enforce the claim the same as the transferror might have done, plaintiff was entitled to maintain an action at law for a claim against defendant for a part of a month’s salary assigned to plaintiff before it was earned by the assignor.</p>

<p>Attorney — Disbarment.</p> <p>The act of an attorney in directing the sheriff to take from defendant on a writ of replevin a large quantity of goods not described in the writ, and worth several thousand dollars, where there can be no doubt as to his intent or knowledge of the facts, is sufficient ground for his disbarment.</p>

Action by Robert L. Reade against the Continental Trust Company and Robert L. Reade, trustee, and Martha A. Reade, for construction of a trust agreement. From a judgment in favor of plaintiff (60 N. Y. Supp. 258), defendant Martha A. Reade appeals.

Action by Frederick M. Grossett against I. Osgood Carleton. From an order denying plaintiff’s motion for leave to reissue a commission to examine witnesses, he appeals.

Action by William Y. Robinson against John P. Brown and others to restrain the defendant the board of trustees of the village of Nunda, N. Y., from borrowing money and issuing the obligations of the village therefor, and from purchasing certain real estate for a° site for an engine house and lockup for said village, and to restrain all the defendants from proceeding under an alleged void contract to erect such building.

<p>Appeal from special term, New York county.</p> <p>Action by the Havana City Railway Company and another against Juan M. Ceballos and others. From a judgment overruling demurrers to an amended complaint, defendants Ceballos and Rohl appeal.</p>

Action by the Havana City Railway Company and another against Juan M. Geballos and others. From an order denying motion of Eugene Sweeney, one of the defendants, for judgment on the pleadings, he appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Mary K. Morse against Press Publishing Company. From an order sustaining plaintiff’s demurrer to defendant’s plea in justification,' defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Elizabeth J. Goldner against Daniel S. Goldner. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by the Western Union Telegraph Company against Augustus D. Shepard and others for the reformation of a deed and for other relief. From a judgment for defendants, plaintiff appeals. See 57 N. Y. Supp. 357.

<p>Appeal from special term, Erie county.</p> <p>Action by William L. Savage and another against the city of Buffalo. From a judgment overruling a demurrer to the third defense in the answer, plaintiffs appeal.</p> <p>'The action was begun on the 28th day of August, 1898, to recover $301.25 on account of a contract entered into between the plaintiffs and the defendant. The allegations of the complaint, so far as material, are, in substance, that in September, 1895, the plaintiffs entered into a contract with the defendant to construct a school building in the city of Buffalo, according to plans and specifications made by the defendant, at the agreed price of $45,999.99, payment to be made, as the work progressed, -upon the written certificates of the architects; that on January 24, 1896, the plaintiffs had performed work and furnished materials in the performance of said contract amounting to $14,000, and had been paid only $11,000; that on said day the plaintiffs procured from the architects a certificate in writing certifying that, they had performed work sufficient under said contract to entitle them to receive the further sum of $1,000; that on January 27, 1896, the defendant wrongfully neglected and refused to pay $301.25 of the sum specified in said certificate, although requested so to do by the plaintiffs; that said sum is due and owing to the plaintiffs. And judgment is demanded for the amount, with interest and costs. For a third answer and defense to the cause of action set forth in the complaint, the defendant, in substance, alleged: That on the 2d day of July, 1896, an action in equity'was brought, by one William L. Jones, the attorney for the plaintiffs in this action, to recover upon certain assignments or claims alleged to be due and owing on account of the contract in question, and which claims had been assigned to him by the plaintiffs before the commencement, of that action. That the city of Buffalo and the plaintiffs in this action were made defendants. That the defendant the city of Buffalo answered, alleging, in substance, that nothing was due or owing under said contract, that the contractors (these plaintiffs) had abandoned the contract, and that the defendant completed it at its own expense, and at a cost largely in excess of the contract price. The issues so framed were tried before the court, and a decision rendered, in effect, that the said contractors (these plaintiffs) on the 9th day of July, 1896, abandoned their contract; that such abandonment was accepted by the city of Buffalo, and that it thereupon entered and took possession of the premises. for the purpose of completing the work, and did so complete it at a cost in excess of the contract price of $6,135.94; that said sum was due and owing to the city from the contractors (these plaintiffs) on account of such contract, and that there was nothing due to the contractors at the time when the assignments were made to Jones, the plaintiffs in that action; and that there was nothing due or owing to the plaintiffs. And judgment was directed dismissing the plaintiffs’ complaint in that action, with costs, and judgment was entered accordingly on the 23d day of September, 1898. And it is alleged that such judgment and decision are a bar to this action. Such third answer'or defense was demurred to by the plaintiffs upon the ground, among others, that the said third answer does not state facts sufficient to constitute a defense, and is insufficient in law upon the face thereof. Thd learned trial justice overruled the demurrer, and from the interlocutory judgment entered upon such decision this appeal is taken.</p>

Bill by Wilmot Castle against the Bell Telephone Company of Buffalo and others. From an order vacating an injunction (61 FT. T. Supp. 743), plaintiff appeals. The plaintiff is the owner of a lot situate upon the west side of Oxford street, in the city of Rochester, the fee of which extends to the center of that street.

<p>Appeal — Review.</p> <p>A question as to the right to a modification of the terms of an order cannot be raised by an appeal from so much of a subsequent order as denies a motion for a resettlement, of the original order.</p>

Action by James R. Beck against the city of Buffalo for injuries resulting from a fall on an icy sidewalk. From a judgment of non-suit, plaintiff appeals.

<p>Appeal from trial term. .</p> <p>Action by Reinhard Kochmann against Hattie Baumeister. From a judgment entered on dismissal of the complaint at the trial,, plaintiff appeals.</p>

<p>Judgment on Pleading — Counterclaim—General Denial.</p> <p>In an action for goods sold and delivered, defendant answered by a general denial and by counterclaim, alleging an agreement to sell goods of the same quantity and character as claimed in the complaint, with a collateral agreement that plaintiff would not sell similar goods to others at a less price than charged to defendant, and that such agreement had been broken. Defendant claimed an allowance equal to the difference between the price he agreed to pay and the price at which similar goods were sold. Helé, that a judgment for plaintiff on the pleadings, less the allowance to defendant, was erroneous, as the claim of plaintiff was neither expressly nor impliedly admitted, as required by Code Civ. Proc. § 511, to justify such judgment.</p>

Action by Mary O’Reilly against the city of Syracuse. From a judgment for plaintiff and from an order denying motion for new trial on the minutes, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by the Tradesmen’s National Bank of the City of New York against the United States Trust Company of New York. From an order denying a motion to strike out portions of the answer, plaintiff appeals.</p>

Petition by the people, on relation of the Washington Building Company and others, against Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New York, for a writ of certiorari to review assessments for the year 1899. From an order superseding the Writ (63 N. Y. Supp. 319), the relators appeal.

Action by Walter A. Whitney against the Queen City Ice Company. From a judgment entered on a verdict for plaintiff, and an order denying a new trial, defendant appeals. In February, 1898, the defendant was the owner of and engaged in operating a plant for the storage of ice at Cassadaga Lake in the county of Chautauqua. The plaintiff was the defendant’s general manager, and as such superintended the storage of ice in a building used for that purpose.

Action by Samuel J. Cornell and others, as executors of Joseph Cornell, deceased, against Edward S. Savage, impleaded with others, to recover insurance payable to defendants for the loss of a steamboat mortgaged to plaintiff’s decedent and others. From a judgment overruling a demurrer to the complaint, defendant Savage appeals.

<p>Appeal from surrogate’s court, New York county.</p> <p>In the matter of the will of Charles Chapman Backus, deceased. Appeal from decree admitting will to probate. 61 N. Y. Supp. 1070.</p>

<p>Appeal from trial term.</p> <p>Action by Harry V. Snead against Maurice Bonnoil. From a judgment on a verdict for plaintiff, defendant appeals.</p>

<p>Railroads — Accident ai Crossing — Contributory Negligence.</p> <p>Plaintiff, a motorman, in charge of an electric car, when about 750 feet from a railroad crossing, saw a freight train standing on defendant’s track about 315 feet from the crossing. At this time his car was moving at the rate of 12 miles per hour, and continued at that speed until within 125 feet of the crossing, when he discovered that the train was backing towards the crossing, and that there was danger of a collision. He reversed his power, put on the .brake, and taereby reduced the speed, but could not bring his car to a stop before reaching the crossing, owing to ice on track, and, as a result, it struck the train, and plaintiff was injured. Held), that he was guilty of contributory negligence as a matter of law.</p>

<p>Trial — Statement and Conduct oe Judge.</p> <p>Statements by the trial judge, referring to the principal witness of plaintiff, that he was the most unmitigated little scamp he ever saw, and other statements as to his credibility, the refusal of a charge to the jury that such statements were improper, and the giving of a charge that it was extremely proper for him to say what he did, are such misconduct as to require a new trial.</p> <p>Van Brunt, P. J., dissenting.</p>

<p>1. Taxation — Complaint of Assessment — Verification of Statement.</p> <p>Where a corporation complaining of an assessment desires to file a statement on “grievance day,” its tax agent will be presumed to have sufficient knowledge of the facts relating to the assessment of its property to make him competent to verify such statement, without stating the sources of his knowledge, under Laws 189G, c. 908, § 36, providing that the verification shall be by the person whose property is assessed, or by some person authorized to make such statement, and who has knowledge of the facts stated therein.</p> <p>2. Same — Sufficiency of Statement.</p> <p>Under Laws 1896, c, 908, § 36, providing that a person complaining of an assessment -shall file with the assessors a statement “specifying the respect in which the assessment complained of is incorrect,” it is enough to state that the property is assessed for more than its full value, or that the assessment is proportionately larger than on the other property set forth in the assessment roll, without specifying instances.</p> <p>3. Same — Certiorari—Petition.</p> <p>Under Laws I860, c. 269, § 1, providing that a writ of certiorari may be allowed when the petition therefor “shall set forth that the assessment is-illegal, specifying the grounds of the alleged illegality,” it is enough to-allege that complainant’s property is assessed proportionately higher than the other property on the assessment roll, without stating the valuation of all such other tracts.</p> <p>4. Same — Waiver of Objections.</p> <p>The tax assessors, by receiving and filing the statement required by Laws 1896, c. 908, § 36, of one complaining of the assessment, without objecting to its form or substance, and receiving evidence in support of its allegations, waive any objection to its form or indefiniteness.</p> <p>6. Same — Amendment of Writ of Certiorari.</p> <p>A writ of certiorari to review a tax assessment may, on motion, be amended nunc pro tune, so that it shall state that it was issued on the relation of the relator, shall provide when service of the return shall be made on relator’s attorney, and shall be subscribed by the justice of the supreme-court granting the same.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Nancy Calhoun against Benjamin Calhoun. From a judgment in favor of plaintiff, defendant appeals.</p> <p>The action was commenced on the 25th day of February, 1897, to foreclose a certain -mortgage made and executed by the defendant, Benjamin Calhoun, and Jessie Calhoun, his wife, and delivered to the plaintiff. The mortgage bears date December 1, 1885, is acknowledged January 11, 1886, was recorded in Jefferson county clerk’s office January 27, 1SS6, in Liber 132 of Mortgages, p. 441, and covers a farm of 110 acres of land, situate on Grindstone Island, in the county of Jefferson. The consideration expressed is $600, .and the mortgage contains the following covenant: “Whereas, the party of the first part [the defendant, Benjamin Calhoun], for a good and valuable consideration to him in hand paid by Nancy Calhoun [the plaintiff], the party of the second part herein, does hereby covenant and agree, for himself, his heirs, executors, and administrators, to and with the said Nancy Calhoun, that he will support and comfortably maintain and sufficiently clothe the said Nancy Calhoun, in sickness and health, for and during the rest, residue, and remainder of her natural life, in his family or upon the said premises hereinbefore described, but not without the county of Jefferson, without her consent: Therefore this grant is intended for security for the said support and maintenance * * * as hereinafter stated, and this conveyance shall be void if such support and maintenance be made as herein specified. And, in case default shall be made in the support and maintenance hereby intended to be secured as above provided, it shall be lawful for the party of the second part, her executors, administrators, and assigns, at any time hereafter, to sell the premises hereby granted, or any part, thereof, in the manner prescribed by law, keeping the moneys arising from such sale, and to retain the same for the purposes aforesaid, and of paying costs of sale.” The plaintiff, who. at the time of the trial (1897) was 68 years of age, resided with her family for many years prior to 1875 upon a farm of 60 acres owned by her, situate upon Grindstone Island, in the county of Jefferson, N. T. The defendant, who is the plaintiff’s son, has been engaged in sailing upon the Great Lakes since he was 16 years old. His earnings, until he reached his majority, were used for the support of his parents’ family, with whom he lived during the winter months. With the money which the defendant accumulated after reaching his majority, and in the year 1875, he purchased a farm adjoining the plaintiff’s; and the family then moved onto it, the buildings on the plaintiff’s farm having become substantially untenantable. From that time on for many years the plaintiff managed, and with her family occupied, both farms; and the entire proceeds were used for the support of herself and family, which consisted of herself, her husband, and five or six children. By the year 1879 the plaintiff had become involved in debt to a considerable amount, — the defendant claims, in sums aggregating between $600 and $700. The plaintiff claims that the amount did not exceed $250. No accurate accounts were kept, and it is scarcely possible to determine from the evidence, even approximately, the correct amount. At all events, in April, 1879, the plaintiff deeded her farm of 60 acres to the defendant, in consideration of the payment by him of the plaintiff’s indebtedness, and the execution and delivery of a mortgage back, containing a covenant by which the defendant obligated himself to suitably maintain and support the plaintiff and her husband upon said farm, or in his family, but not without the county of Jefferson, during their natural lives. In October, 1879, the plaintiff’s husband died, and in January, 1881, the plaintiff satisfied the mortgage last referred to, and it was discharged of record. The defendant claims that the consideration for the satisfaction of the mortgage was the cancellation of an indebtedness which was owing to him by the plaintiff, and the payment by him of demands which she owed to other persons, in all amounting to the full value of the mortgage. The plaintiff claims that at the time she was not indebted to the defendant in any amount, and that he did not pay any other debts for her for which she was liable, or at her request, and that the satisfaction was entirely without consideration, except that the defendant agreed that he would execute and deliver to her another mortgage to take the place of the one satisfied, and containing a covenant on his part to maintain and support her during her natural life, or make other suitable provision therefor. Notwithstanding the plaintiff ceased to have any title to or interest in the farms in question which was evidenced by any writing, the relations between the parties continued the same as before; the plaintiff with her family' then consisting of her son Emmett and one daughter, occupying both farms, and receiving the avails thereof. The defendant lived with them each winter, and at the end of each year paid such deficiency as arose on account of running the farm. In the year 1885 the defendant married, and shortly thereafter, and, so far as appears, without demand or request on the part of the plaintiff, he voluntarily executed and delivered to her the mortgage in suit, for the reason, as he stated at the time, that he feared that his vessel might tie lost, and himself and wife drowned, and in that case he desired that there should be some provision for the support of the plaintiff during her life, so that she would not be dependent upon the other children.</p> <p>For nearly 10 years after the execution, and delivery of the mortgage in suit (1885 to 1895), the plaintiff, her son Emmett, and her daughter resided upon and managed the two farms as one, and had the entire proceeds therefrom, except what was expended in making some improvements; and the defendant each year paid the taxes and other expenses, amounting to a considerable sum. The only benefit which the defendant derived from the farm during the entire period was the partial support of his young children, who lived with the plaintiff a portion of the time, and he and his wife made it their home during the winters. No account of receipts and disbursements was kept by the plaintiff or by her son Emmett. They dealt with the farm as if their own, sold the products and stock at will, and used the proceeds for their own purposes, and as they saw fit; the defendant making good the deficiency which invariably existed at the end of each year. In the early part of 1895, the plaintiff’s daughter having married one Edgar Garnsey, and the defendant being about to marry a second wife, which he did in March, 1895, — his first, wife having died, — the defendant determined to dispense with the services of the plaintiff’s son Emmett, and that he would not longer have him upon the farm. The evidence tends to show that Emmett had become a worthless character, — dissipated and impudent. At all events, he and the defendant did not get on together; and the defendant was under no obligation to employ him, contribute to his support, or have him upon the farm, unless he so desired. The defendant thereupon rented the farm to his brother-in-law, Edgar Garnsey. That greatly angered the plaintiff, and the defendant claims that she stated in the most positive and violent way that if Emmett did not remain, and Garnsey came, she would not stay on the farm; that she called him (the défendant) vile names, threatened him with bodily harm, and that, she would burn all the buildings, and demanded that he should provide a place for her to live in Thurso. The defendant says that he tried to persuade her not to go to Thurso, and offered to build a house for her on the farm, but that she would not consider such a proposition. The plaintiff’s version of the transaction is entirely different. She says that she did not suggest that she would leave, but that the defendant told her she must leave; that he threatened to do her bodily injury, threatened to kill her son Emmett, called her vile names, and, in short, that his treatment of her was such as to make it unsafe for her to remain; that she was anxious to stay, and only left because compelled to. As a result of the quarrel, the defendant purchased a comfortable house in the village of Thurso, about two miles from the farm, for the plaintiff to live in, and in March, 1895, she moved into it; taking with her from the farm substantially all the household furniture and utensils, 1 cow, a pig, 16 hens, a quantity of provisions, wood, etc. The defendant claims that the plaintiff so moved from and left the farm, and took the property above mentioned, not only voluntarily, but under the express agreement that, if he would make such provision for her, she would release him from all obligation to support her in the future, on account of the mortgage in suit or otherwise. The plaintiff insists that no such agreement was made, but that, on the contrary, she left the farm because she was compelled to on account of defendant’s cruel treatment, and that she moved into the Thurso house because she had no other place to go, and that she took the property which she did as a matter of necessity, and to provide for her immediate wants. The plaintiff has continued to reside in the Thurso house since she moved there, in March, 1895, and the defendant has contributed to her support to some extent, at least, each year, — sufficiently, he claims,0 to provide for her needs, considering the rental value of the portion of the house not required by her ($50 per year), and the use of the land connected therewith, and that, considering her station in life, she has had enough to suitably maintain and support her, except for the fact that she persists in furnishing a home for, and supporting, her son Emmett. The plaintiff insists that the amount contributed by the defendant from the time she moved to Thurso until this action was commenced was entirely inadequate for her maintenance, and that during the greater part of the time she has necessarily been'almost destitute, and has suffered for the necessaries of life. It, however, appears by the evidence, and is uncontradicted, that since the plaintiff moved to Thurso, and up to the time this action was begun, she has not made any demand or request upon the defendant to furnish anything for her support which he has -not complied with, and that she has not requested to be permitted to return and reside upon the farm, or with the family of the defendant, or offered so to do. The foregoing is but a skeleton of the facts bearing upon the unfortunate controversy existing between the mother and son, parties to this action.</p>

<p>1. Transfer Tax — Assessment—Modification of Order.</p> <p>While Laws 1892, c. 399, § 13, limiting the time to 60 days for an appeal from an order of the surrogate assessing a transfer tax, is applicable to purely legal errors, the power vested in the surrogate by Code Civ. Proe. § 2481, subd. 6, to vacate or modify a decree or order of his court, or grant a new trial, for fraud or newly-discovered evidence, is independent of the right of appeal, and may be exercised to modify an order assessing a transfer tax for an error in fact after the time prescribed by section 13 has expired.</p> <p>2. Same — Reassessment—Reversal.</p> <p>Where a petition for the reduction of a transfer tax asks such reduction only for one party in interest, and the modified order readjusts the value of the shares of all the legatees and parties in interest, so as to reduce the amount of the tax, and it does not appear whether or not the surrogate has arrived at the reassessments properly, such order will be reversed, and another assessment directed.</p> <p>3. Same — Basis of Assessments.</p> <p>An assessment of the transfer tax should be based on the value of the property at the time of the testator’s death.</p>

<p>Appeal from trial term, Monroe county.</p> <p>Action by John L. McGammon against Moses B. Shantz. From a judgment in favor of plaintiff, and from an order denying a motion for new trial on the minutes, defendant appeals.</p>

<p>Appeal from trial term, Erie county.</p> <p>Action by Mary D. Doming against the Terminal Railway of Buffalo and others. From a judgment in favor of plaintiff and from an order denying a new trial, defendants appeal.</p> <p>The appellant the Terminal Railway of Buffalo is a corporation duly organized under the laws of this state, its purpose being to form a connecting link between the Lake Shore & Michigan Southern, and the New York Central & Hudson River Railroads. In 1897 it was engaged in constructing the line of its road-from Depew to Blasdell, in the county of Erie, a distance of about 11 miles, and to that end had entered into a contract with the appellants Smith & Lally, by the terms of which that firm was to perform the entire work of construction in accordance with the plans and specifications annexed to and made a part of • the contract. These plans required that all highways intersected by the proposed line of road should be carried either over or under the railway, and among such highways was one known as the “White’s Corners Road,” which runs north and south, and is an important thoroughfare, extending from the city of Buffalo to the village of Hamburg. At the point of intersection the railroad and highway run at right angles, and on the 29th day of June, 1897, an order was granted by the supreme court permitting the railway to construct its road across the highway at this point upon condition that it should comply with the statute, and restore the highway to such state as not to unnecessarily impair its usefulness. In virtue of the license thus granted, the railroad company proceeded to make the crossing in accordance with certain plans and specifications, which required that the highway should be elevated 8 feet and 5 inches above its original grade; that the railroad tracks should be depressed about 12 feet below the original grade; and that the highway should then be carried across the tracks by means of an overhead bridge. On the 7th day of September, 1897, one Herrick, of the firm of Herrick & Hartman, to whom Smith & Lally claim to have sublet this portion of the work, started to construct the northerly approach to the proposed crossing, and in the course of bis operations removed the earth from the west to the east side of the highway, in consequence of which an embankment was soon formed which covered a little over one-half of the highway for a distance of about 600 feet north of the proposed crossing. This embankment, which extended up to within 50 or 100 feet of the temporary track, was about 12 feet wide on top, the side sloping gradually, and its maximum height being from 4 to 7 feet. • When completed, it was designed to serve as the roadbed or northerly approach to the bridge over the tracks. The highway at this point was 4 rods wide, and the presence of the embankment left a space about 30 feet in width upon .the west side thereof for the passage of teams, but only about 12 or 15 feet of this space was used by the traveling public. On the afternoon of September 16, 1897, the plaintiff and her husband, in company with some 10 or 12 other people, started from Buffalo in a four-seated drag to attend a fair at Hamburg. The drag was drawn by four horses, and was in charge of a competent and experienced driver. The party arrived at Hamburg by the Lake Shore road between 3 and 4 o’clock, and remained there until about 9 o’clock in the evening, when they started to return to Buffalo by the White’s Corners road. The night was dark and rainy, and there were no lights upon the drag, and none upon or in the vicinity of the embankment. The drag reached the crossing at about 11 o’clock, and the driver, not knowing of the existence of the embankment, drove directly ahead, instead of bearing off to the left, as should have been done in order to avoid the embankment. As a consequence, when about 100 feet north of the crossing, the wagon struck the embankment, and tipped over. The plaintiff, who was sitting on the back seat, was thrown to the ground, and severely injured, and it is to recover damages for such injuries that this action is brought. Originally, the town of Hamburg was one of the parties defendant, but upon the trial the complaint was dismissed as to it, and no appeal has been taken from the order of dismissal.</p>

Appéal from judgment on report of referee. Action by Isaac Saperstein against Moyer Ullman, executor of the estate of Amelia Ullman, deceased. From a judgment in favor of the plaintiff on a referee’s report, defendant appeals.

<p>1. Master and Servant — Injury to Servant — Fellow Servants.</p> <p>One engaged as a laborer in the construction of a sewer, who descends into the trench, which has been properly constructed, and protected from ordinary dangers, and which is not an inherently dangerous place, arid is injured while therein by another laborer, engaged on the same work, depositing the contents of the wheelbarrow on his head and shoulders, cannot recover damages against the principal for the injury, as the principal furnished a reasonably safe place in which to work, and the act causing injury was the act of a fellow servant, for which the principal is not liable.</p> <p>2. Same — Assurance of Foreman — Details of Work.</p> <p>The fact that, on plaintiff objecting to descending into the trench, defendant’s foreman assured him it was safe, and that he would stand and watch, did not render defendant liable, since the foreman’s assurance was merely as to the details of the work, given in his individual capacity, and not for the principal.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by Edward P. Beals and others against the Buffalo Expanded Metal Construction Company and another. From a judgment for plaintiffs, defendants appeal.</p> <p>The Buffalo Expanded' Metal Construction Company was a domestic corporation, the certificate for the creation of which bore date on the 15th day of January, 1898, which provided for a capital stock of $20,000. The defendant Schmidt signed the same on the 18th day of that month, agreeing to take $10,-000 of such stock. He was named as one of the directors of the- corporation, and on the organization of the board was elected its president; retaining the position until the alleged assignment of his interest in the corporation on the 18th day of May following. Contemporaneously with his execution of the certificate of incorporation said construction company, by said Schmidt, as its president, and also by its secretary, entered into a written agreement with said Schmidt whereby, in consideration of “ten thousand dollars, par value, of stock” of said company, to be delivered to said Schmidt “when the stock of said company is ready to be issued and delivered,” he agreed to advance from time to timé money required in the conduct of its business, upon the order of the board of directors, up to the sum of $10,000. The sums so advanced “shall be repaid in cash” to said Schmidt “immediately upon the receipt and payment of such contracts for which such sums have been advanced.” " The defendant Schmidt contributed some money to the corporation, and indorsed its promissory notes, at the request of the directors. The exact amount of the said notes and of the said cash does not appear, but it aggregated nearly $10,000, all of which, however, were paid by the company. No stock book was ever kept by the corporation, and no certificates of stock were in fact ever issued to Schmidt, or to any of the incorporators of the company. On the 18th day of May, 1898, said Schmidt, by an assignment in writing, transferred to one Laing his interest in said concurrent contract providing for an issuance of the stock to him, and Laing assumed the burden of said agreement imposed upon Schmidt. The latter also authorized Laing to “discharge said contract without any further consent or agreement therefor by said William H. Schmidt,” and Schmidt also released the company from any demands existing or subsequently accruing which might inure to him. Two days later said Laing transferred the interest thus acquired to the corporation, upon like condition, —that he was to be released from all liability under its said agreement with Schmidt. This assignment was formally “accepted” -by resolution of the company, and.the Schmidt agreement rescinded. At the time of the assignment by Schmidt the company was insolvent, — a fact known to him. On the 14th day of September, 1898, the plaintiffs recovered a judgment against the defendant corporation for $305.17 damages. The basis of this was goods sold to it by them, — about one-half thereof being for machinery delivered prior to the alleged assignment by Schmidt, and the residue several months thereafter.</p>

<p>1. Contracts — Damages—Pleading.</p> <p>Under a complaint setting forth a contract and its breach, plaintiff, without any averment as to damages, may recover the damages necessarily or naturally resulting from such breach.</p> <p>3. Sales — Breach of Warranty — Damages.</p> <p>In an action for damages for breach of a warranty of an apparatus for heating a house, damages arising from a failure to heat a room In a house used as a physician’s office by plaintiff, the rental value of which was shown to be a certain sum per month, are recoverable.</p> <p>3. Same.</p> <p>If a buyer, notwithstanding the defective condition of the thing sold, accepts and pays for it, he can recover, in an action for breach of warranty, as a legitimate result of the breach, the difference in value between the article provided for in the contract and the one furnished thereunder.</p> <p>4. Same — Action for Breach of Warranty — Designation.</p> <p>An action on a contract of sale need, not be designated in specific terms “an action for breach of warranty,” to enable plaintiff to recover damages arising from a failure to furnish an article of the character provided for by the contract.</p> <p>5. Pleading — Amendments.</p> <p>Where plaintiff has alleged and proved a cause of action, and the proofs are all in the case, an allowance of an amendment of the complaint to conform to the facts is proper.</p>

<p>Í. Contract — Construction—Breach.</p> <p>An agreement between plaintiff’s assignor and defendant reciting that defendant should, on foreclosure sale of .certain property, furnish the money required to purchase the property, “at such price as may hereafter mutually be agreed upon,” will he construed as calling on each party to use reasonable efforts to agree on a price which should be bid for the property; and, if defendant refused to make such efforts, such refusal would he a breach of his contract.</p> <p>3. Same — Correspondence—Construction.</p> <p>The effect to be given to correspondence between parties, introduced for the purpose of determining whether or not there has been a refusal to comply with the terms of a contract, is one of law, for the court, and should not be submitted to the jury.</p> <p>8. Same.</p> <p>Defendant agreed with plaintiff to furnish the money required to purchase certain property at foreclosure sale, at a price thereafter to be agreed on. Prior to the sale, defendant’s directors passed a resolution declaring that not over a certain sum should be bid, and transmitted a copy of the resolution to plaintiff. Plaintiff, by letter, stated that he was not satisfied with the amount fixed. Defendant answered that it stood ready to carry out the original agreement. Plaintiff wrote that defendant could not, if necessary to secure the property, hid less than an amount stated, which was greatly in excess of the amount fixed by the directors. The contract contemplated the reorganization of the company owning the mortgaged property, of which plaintiff owned a majority of the stock. The letter stated that the essential part of the agreement was that defendant should buy at the sale for the lowest amount practicable, and that the details of the reorganization were the only matters left to subsequent mutual agreement. Helé to show a refusal by plaintiff’s assignor to negotiate as to the price to be paid, and not to show that defendant had refused to negotiate, or had arbitrarily fixed a limit for the amount which it would bid.</p>

<p>Insurance — Application—False Statements — Policy—Validity.</p> <p>Where a life policy was issued in reliance on a statement contained in the application which was warranted true, which was in fact false, and which was written therein by the medical examiner of the company, who was by the terms of the application made the agent of the insured for that purpose, the policy was void.</p> <p>Spring, J., dissenting.</p>

<p>1. Executors — Accounting—Expenses—Attorney’s Fees — Payment.</p> <p>Code Civ. Proc. § 2726, authorizes the surrogate’s court to compel an executor, whose letters of administration have been revoked, to account. Section 2729 requires him to produce vouchers for all disbursements made for the estate. Section 2730 provides that he may charge his necessary expense, actually paid out, without filing vouchers therefor. Held that, where an executor has not paid a bill for attorney’s services rendered for the estate, he cannot charge the amount against the estate, as an expenditure.</p> <p>2. Same — Payment acter Removal.</p> <p>Where an executor, after his letters have been revoked, gave his note to an attorney in payment for services performed for the estate, he cannot charge the amount of such note to the estate, as he had no authority to bind the estate after his removal.</p>

<p>Abstracts op Title — Guaranty—Liability of Examinee.</p> <p>Under a contract of guaranty to a person ordering a search made by an abstractor of titles to real estate, and to his heirs, devisees, and grantees, that in the abstract of title furnished the promisee is contained an accurate and complete statement of the title of the premises as to which the search was made, a grantee under a mesne conveyance from the grantee of the promisee is not entitled to maintain an action for damages for a breach of the guaranty.</p>

<p>Transfer Tax — Gift in Contemplation of Death.</p> <p>Though one at the time of giving a third of his property to his children was 86 years old, somewhat enfeebled, and gradually declining in physical power, yet there being nothing then to indicate that he was in immediate danger of death, and he having lived 18 months after the first gift was made, and 10 months after the second gift was made, and the services of a physician not being had or required till 2 months before his death, the gifts, being absolute, passing title immediately and irrevocably, and not made or received with the intent to avoid payment of the transfer tax, are not within Laws 1892, c. 399, § 3 (Laws 1896, c. 908, § 220), imposing a tax on the transfer of property by gift made “in contemplation of the death of the * * * donor, or intended to take effect in possession or enjoyment, at or after such death.”</p> <p>Spring and Williams, JJ., dissenting.</p>

<p>1. TBADE-MABKS — INFRINGEMENT—ESTOPPEL.</p> <p>The defendants having agreed for a valuable consideration that certain labels should thereafter be the property of plaintiff, and that the defendants would not infringe on their use, they were estopped from asserting that the symbols and devices composing the labels were not such as were subject to protection solely as trade-marks.</p> <p>2. Same — Similarity op Design.</p> <p>On the left end of a label used by plaintiff on canned goods was a picture of a flag, with the words, “F. S. Flag,” directly over it. In the center of the label, within a gilt rim, were the words, “Packed at Rome, N. Y.” On the right end was a picture of vegetables. Defendants adopted a label of the same size, with a flag on the left end of about the size as on plaintiff’s label, but of a different design, with the words “Our Flag” above. In the center, within a gilt rim, was an eagle’s head. On the right end was a picture of vegetables, substantially as on plaintiff’s label, with the words “Our Flag” above. HeldI, that defendants’ label was an infringement on plaintiff’s, being sufficiently similar to deceive a purchaser of ordinary caution, and to injure plaintiff’s trade. .</p> <p>8. Same.</p> <p>On the left end of a label used by plaintiff on canned goods was the name of the firm within a gilt scroll, with the words, “Packed at Rome, N. Yij” beneath. In the center of the label was a picture of a Roman shield, helmet, and other devices. On the right end was a picture of vegetables, and above, in red letters, with gilt edges, were the words, “Pride of Rome.” Defendants adopted a label of the same size, having on the left end substantially the same picture as was on the right end of plaintiff’s label, with the words, in similar lettering, “Pride of the Home” above. In tbe center of the label was a picture of a Roman soldier in armor. On the right within a wreath were the words, “Packed at Rome, N. Y.,” though the.goods.were not packed there. Beneath the wreath was the device of shield and helmet, as on plaintiff’s label. Heidi, that the defendants’ label was an infringement on plaintiff’s, the similarity being sufficient to deceive the ordinary customer.</p>

<p>Municipal Corporations — Defective Sidewalk — Notice—Statutory Provi signs — Executive Board.</p> <p>Laws 1880, c. 14 (Charter of Rochester), absolve it from liability for injuries caused by a defective sidewalk, unless notice of its unsafe condition shall have been given to the executive board a reasonable time before the accident. Notice of a defect was given two months before the accident, to a clerk, who made a note of the complaint, and who was at the only office of the executive board open to the public, and where the board was in the habit of receiving such notices by any clerk who happened to be behind the counter. Feld, that such notice was a compliance with the statute.</p> <p>McLennan, J., dissenting.</p>

<p>Building and Loan Associations — Insolvency—Rights of Borrowers.</p> <p>Upon the insolvency o£ a building and loan association, and the execution of a general assignment for the benefit of creditors, a borrower is not entitled to treat the inability of the association to mature his stocx, consequent upon the assignment, as a breach of its contract, for which he may recover for the damages sustained, by applying all payments made by him, with interest thereon, in reduction of the sum borrowed, with interest on that sum, and require the satisfaction of his mortgage upon payment of the remainder.</p>

<p>Water Courses — Diverting Surface Waters into Natural Stream — Pollution of Stream — Rights of Riparian Owner — Taking Case from Jury — Evidence.</p> <p>In an action for damages for diverting surface waters and polluting the waters of a natural stream, to the damage of a riparian owner, plaintiff showed that the stream had its source in a spring, that it had a clearly-defined channel, that there were springs in its hed, and that the water could he depended upon occasionally for the entire year, and always for a considerable portion thereof. Defendant’s evidence tended to show that the stream was merely a channel through which the surface waters of contiguous territory flowed, and that the volume of water therein depended entirely upon the season of the year and the condition of the atmosphere. The evidence showed that when the water reached plaintiff’s land it was impregnated with salt by soakage, percolation, or otherwise, in its passage over defendant’s premises, and that such condition was not discovered until after the erection of the dam by which defendant diverted the surface waters on his land to the stream in question, although salt-mining had been conducted on the same land for several years prior to that time. Eeld<, that the court erred in directing a verdict for defendant.</p>

Action by the Central Trust Company of New York against the West India Improvement Company, the Manhattan Trust Company, and others. From a judgment entered on the report of a referee dismissing the complaint, plaintiff appeals, and the West India Improvement ’Company appeals from a judgment dismissing its cross complaint against its co-defendant the Manhattan Trust Company, and awarding such co-defendant an extra allowance of $2,000.

<p>1. Judgment — Dismissal—Res Judicata.</p> <p>A dismissal of a complaint on the merits is a bar to any new action for the same cause of action, in view of Code Civ. Proc. § 1209, providing that a final judgment dismissing a complaint does not prevent a new action, unless it declares that it is rendered on the merits.</p> <p>2. Same.</p> <p>A judgment dismissing a counterclaim based on a contract will preclude a subsequent action on the contract, where the judgment is based on a finding that the contract cannot be enforced because of the impossibility of the performance of a condition that formed the consideration for the contract.</p> <p>8, Contracts — Considebation.</p> <p>Plaintiff agreed to purchase stock in a corporation of a third person in addition to stock owned by plaintiff, and not to sell any stock without giving defendant the first opportunity to purchase, and defendant agreed to deposit other stock owned by him with plaintiff as security against a foreclosure of a mortgage on the property of the corporation. Heldi, that defendant’s agreement was in consideration of plaintiff’s agreement to purchase stock, so that he was not bound to comply therewith on plaintiff’s failure to purchase the stock.</p> <p>4. Same — Dismissal—Res Judicata.</p> <p>A dismissal of a counterclaim based on a contract precludes a subsequent action on the contract, where the dismissal is founded on a finding that the consideration for the contract had failed, though there is an additional finding that the contract had not been abandoned.</p> <p>5. Same — Questions for Jury.</p> <p>Questions as to whether there had been a breach by plaintiff of a contract sued on, or as to whether plaintiff had notified defendant of his intention not to fulfill his part of the contract, are questions of fact, which should be submitted to the jury, where such issues are raised, and there is evidence to support them.</p> <p>6. Same — Conditions—Performance.</p> <p>One to whom securities are delivered in consideration of his agreement to purchase corporate stock of a third person must return the securities on failing to purchase the stock within a reasonable time. °</p> <p>7. Same.</p> <p>A finding in an action founded on a contract, that the contract had not been abandoned, will not prevent the avoidance of an enforcement of the contract in a subsequent action, on the ground that plaintiff himself was guilty of a breach of the contract.</p> <p>McLaughlin and Rumsey, JJ., dissenting.</p>

<p>Action by the Third National Bank of Syracuse against John C. Keeffe and others to subject certain property held by the other defendants to the payment of a judgment against John C. Keeffe, on the ground that he had secretly transferred it to defraud his creditors. Judgment for plaintiff.</p>

<p>Action by Francesco Cassani against Thomas. J. Dunn, as sheriff. P. J. Britt, for appellant. A. I. Oishei, for respondent.</p>

<p>Action by Frank V. Bodine against Benjamin Andrews.</p>

<p>Action by Bridget Boyle, as administratrix, etc., of John Boyle, deceased, against the Degnon-McLean Construction Company.</p>

<p>Action by Albert Brumley against the Lee Manufactoring Company, Watson P. Harvey, and Carrie Harvey.</p>

<p>Action by Maud L. Crane against the Brooklyn Heights Railroad Company.</p>

<p>Action by Isaac Dugoff against Isaac D. Zeman. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>In the matter of the estate of Joseph Gall, deceased.</p>

<p>Action by Charles E. Haff against the Metropolitan Street-Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Henry A. Robinson, for appellant. Henry De Forest Baldwin, for respondent.</p>

<p>In the matter of the estate of Joseph Gall deceased.</p>

<p>In the matter of the probate of the last will and testament of Caroline Remsen Gihon, deceased.</p>

Action by the Havana City Railway Company and another against the American Indies Company, impleaded with others. From a judgment overruling a demurrer to an amended complaint, defendant American Indies Company appeals. Reversed. Charles A. Collin, for appellant. Seymour Kisch, for respondents.

<p>Action by Henderson Hill against John Moebus. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Action by John E. Hollingsworth against the Spectator Company.</p>

<p>Action by John M. Kerrigan against Frederick W. Fielding and others.</p>

<p>In the matter of the application of John H. Madden for admission to practice.</p>

<p>Action by Kenneth McLeod against Anna McGrory for false imprisonment and malicious prosecution. From a judgment in favor of plaintiff, defendant appeals. Modified. William J. Lippmann, for appellant. Herbert H. Walker, for respondent.</p>

<p>Action by Annie E. O’Connor, as administratrix, etc., of Patrick H. O’Connor, deceased, against the Metropolitan Street-Railway Company.</p>

<p>Action by Arthur Meyer against Hermann Reimers and others. From an order denying plaintiff’s motion for the appointment of a receiver pendente lite (63 N. Y. Supp. 681), he appeals. Affirmed. B. F. Einstein, for appellant. John E. Parsons, for respondents.</p>

<p>Action by the Mutual Life Insurance Company of New York against Spencer Aldrich and Mary Nagle.</p>

<p>Action by Charles E. Pell, as surviving partner, etc., against Norman J. Fuller.</p>

<p>Action by Emil Opitz, as executor of the last will and testament of Frederick Hammen, deceased, against Emma Hammen, impleaded with others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed. Richard Cohn, for appellant. James P. Judge, for respondents.</p>

<p>Action by Thirza Purdy, as administratrix, etc., against Edward J. Purdy.</p>

<p>Action by one Podmore, administrator, against the Bank for Savings. From an order requiring plaintiff to give security for costs, he appeals. Reversed. Michael Schapp and Edward Hymes, for appellant. Strong & for</p>

<p>Action by Adolph Rosenberg against the Third Avenue Railroad Company.</p>

<p>Action by Hannah E. Usher against Josiah Van Vranken, Anson R. Flower, and others.</p>

<p>Action by Landon A. Thomas against Charles Schumacher and others.</p>

In the matter of the application of Mary J. Westerfield and another for the removal of William Cauldwell and another, as trustees, etc., of Jason Rogers, deceased.

<p>Action by James B. Witherow against John D. Slayback and others. E. C. Perkins, for appellant. H. Bacon, for respondents.</p>

<p>Action by Emma J. Wightman against William Phelps'and others.</p>

<p>Action by Margaret Wells against George W. Simpson. W. H. Gardenier, for appellant. T. A. Campbell, for respondent.</p>

<p>Action by Henry E. Woodford and another against John M. Brinker and the Niagara Falls & Lewiston Railroad Company.</p>