Volume 64 — New York Appellate Division Reports

<p>Appeal by the defendants, William A. Sampson 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 Oswego on the 7th day of January, 1901, upon the decision of the court rendered after a trial at the Oswego Trial Term before the court without a jury.</p>

<p>Appeal by the defendant, Adam Bickelhaupt, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 21st dáy of August, 1899, upon the report of a referee.</p>

<p>Declarations of an insurance agent, made several months after his agency ceased — they a/re not competent to establish a parol contract of insurance by his principal.</p> <p>In an action upon a parol contract of fire insurance, to take effect March 19, 1899, alleged to have been made by the defendant’s agent May 26, 1898, evidence of declarations made by the agent April 14,1899, several months after the agency had terminated, tending to establish the making of such parol contract, is incompetent.</p>

<p>Negligence—.injury where a brakeman, required to flag a twain, failed to do so because of epilepsy — chairge as to previous ca/re on the brakeman’s pa/rt—death of the officers hawing knowledge of the epilepsy — a verdict, for §11,000 heldmot to be excessive. ■ .</p> <p>In an action brought to recover damages for injuries sustained by the plaintiff while employed as a fireman on one.of the defendant’s passenger trains, in consequence of the failure of a brakeman on a freight train, which had met with an accident while traveling on the same track as the passenger train, to go back át least half a mile with a red light to warn all approaching trains, as required by the defendant’s rules, the liability of the defendant was claimed to arise.out of the fact that thejbrakeman was subject to epileptic fits and-t-hat. in consequence thereof he was incompetent to perform the duties .of his. employment.</p> <p>Held,, that it was not error for the court to refuse to charge that, if the brakeman exercised reasonable cafe and showed ordinary ability, care and prudence in the performance of his duties before the time of the accident, the plaintiff could not recover.</p> <p>Semble,, that if the charge of.incompetency was made on the. alleged ground that the brakeman was habitually careless and neglectful of duty, the fact that he had never been careless or neglectful before the accident would be a perfect answer to the charge. '</p> <p>The fact that some of the: officers of the defendant to whom notice of the brakeman’s condition was given had died, is immaterial. . .</p> <p>Where it appears that the plaintiff was a strong, healthy man at the time that.he was injured, and was earning from $80 to $90 a month, and that as a result-t-bereof his" right arm has been rendered practically useless, and that since the time of the accident, a period of ten years, he has been unable to do much work; that his actual money loss during this time has been some §7,300, and that his injuries will be permanent, a verdict for $11,000 will not be set aside as excessive.</p>

<p>Accident insurance — meaning of ‘■‘voluntary exposure to danger" and of “handling fn'e arms" —the phrase injury “ in any occupation or exposure temporary or otherwise” determines the amount to be paid.</p> <p>A clause contained in an accident insurance policy, exempting the insurance company from liability for injuries received by the insured while voluntarily exposing himself to unnecessary danger, does not apply to mere carelessness and recklessness on the part of the insured, but only to the case of the insured knowingly and without reason courting a danger from which injury is likely to be received.</p> <p>A provision in the policy that the risk should not include accidental injuries or death happening while the insured is “ employed in the manufacture, sale or transportation of any explosive compound, or handling firearms, unless insured to cover such employment,” does not relieve the insurance company from liability for the accidental killing of the insured while he was hunting for pleasure in consequence of the fact that his gun, which was standing against a tree near which he was resting while eating his luncheon, slipped from its position, exploded and sent the charge through his heart.</p> <p>Semble, that the phrase “handling firearms” only applies where the act is done in the course of the insured’s employment.</p> <p>The insured, who was classified as an attorney, having agreed, in his application for the insurance, that if he received an injury “in any occupation or exposure, temporary or otherwise,” classified as more hazardous than that for which he was insured, he should be entitled to receive only the amount which . could be drawn by a person insured under such occupation, and the policy containing a like provision, the insurance company is only liable for the amount payable to a person classified as a hunter for pleasure.</p>

Appeal by the plaintiff, Lyman B. Woodward, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 18th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of May, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, The Rochester Folding Box Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of August, 1900, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling a demurrer to the complaint.

Appeal by the plaintiff, Maurice J. Halleran, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of-Genesee on the 14th day of June, 1900, upon the decision of the court rendered after a trial at the Genesee Special Term.

<p>A complaint, asking that the plaintiff he adjudged to he the owner of certain land, that the defendants’ adverse claim thereto he adjudged to he had, and that a devise:, thereof to the defendants’ ancestor he adjudged to he void, states hut a single cause-of action.</p> <p>A complaint alleged that the plaintiff was the owner in fee of certain real property, and that a person who did not have any title thereto had assumed to-devise it by his last will and testament, and that the defendants were the heirs, at law of the devisee. The relief demanded was that, if the plaintiff should, be determined to be the owner of the premises, it should be adjudged that the-defendants’ adverse claims were of no force and validity, and also that the-cloud upon the plaintiff’s title created hy the devise he removed, and that she-, he adjudged to be the owner of, and entitled to, the possession of the premises. Held, that the complaint stated hut a single canse of action, although it demanded different forms of relief.</p>

<p>Constitutional law— the Legislature cannot prohibit 'the sale of railroad tickets by' others than the agents of the companies—railroad tickets are property — right of the railroad companies to malee them, non-transferable.</p> <p>Chapter 639 of the Laws of 1901, which provides that no person shall sell a passenger ticket giving any right to a passage or conveyance upon any railway-train unless he is the authorized agent of the company running such train, and unless he has received a certificate of authority from such company, is. unconstitutional.</p> <p>Such statute cannot be considered as an exercise of the power of the Legislatures to regulate the conduct of the business of a railroad company.'</p> <p>A railroad ticket is property in. the hands of the holder, and, unless its use is in some way limited, it has the same quality in respect to its transferability as, every other kind of property.</p> <p>Semble, that a railroad company may make its tickets non-transferable.</p> <p>Williams, J., dissented.</p>

Appeal by the plaintiff, Martin Touhey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 27th day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of .December, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Negligence — the breaking of aboard on a trestle while an employee is unloading a coal car — when the act of a foreman is that of a fellow-servant.</p> <p>A man engaged in operating a coal trestle, the floor of which is pierced by many openings, through which the contents of coal cars can be dumped into the bins located under the trestle, is not liable for injuries sustained by an experienced employee, while trying to pry open the.-doors in the bottom of a coal car in order to facilitate the unloading of the car, in consequence of the breaking of one of three boards which, under the direction of a competent foreman, have been placed across one of the openings in the floor in order to enable the employee to stand thereon and to perform his task more conveniently than he could if he stood on the floor of the trestle, where it appears that the boards upon which the employee stood were not supplied by the defendant, but were some of those which had been used to convert box cars into coal cats and had been thrown aside when the box cars were unloaded, and, so far as appeared, had no latent defects, that the employee had frequently seen such boards used for the purpose for which he used them and knew how they were brought there.</p> <p>The placing of the boards across the opening was simply an incident of the work, in doing which the foreman was a co-employee of the injured servant, and the master is not liable for any act done or instructions given by the foreman in this respect.</p>

<p>Damages awarded for injury caused by the grade crossing commissioners at Buffalo . —when the owner of an equity of redemption is entitled to them as against a pur- . chaser at the mortgage foreclosure sale. ' :</p> <p>After the grade crossing commissioners of the city of Buffalo had commenced the work of altering'the grade of a-street in that city an action was brought to fore- ' close a mortgage, covering premises damaged by the change of grade, which resulted in a judgment of foreclosure and sale, pursuant to which the premises were sold after the work had been substantially but not entirely completed. Held, that the owmer'of the equity of redemption, and not the assignee of the pur- • chaser at the foreclosure sale, was entitled to the damages awarded for the injuries done to the. premises.</p>

<p>Re-direót examination, as to a failure to refer to counterclaims in letters written by, a witness who testifies in support thereof</p> <p>On. the trial of an action in which it appears th-¡t the secretary of the defendant corporation had written a number of letters which were inconsistent with tes:tiinony given by him in support of certain counterclaims set up in the answer, he may properly be asked by the defendant’s counsel to explain why he made no reference to the counterclaims at the time he wrote the letters.</p>

Motion by the plaintiff, John M. De Yore, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit granted by the court after a trial at the Cayuga Trial Term.

<p>Negligence — injury to a molder from pouring molten iron into wet or rusty holes, in defective castings — duty of the master to examine the holes—failure of the molder to do so.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff, a molder employed by the defendants, while he was- pouring molten iron into holes in defective castings, in consequence of an explosion due to the presence of rust or water in the holes, it appeared that the defective castings had, by direction of one of the defendants, been placed some forty feet distant from where the plaintiff was accustomed to work, at a place where the defendants knew or should have known that a portion of the roof was in a leaky condition; that at the time the plaintiff was directed to assist in filling the holes the work of placing the castings in readiness for the operation had been completed under the direction of the defendants’ foreman; that no means were taken to ascertain whether there was rust or water in the holes, although the defendants knew that, if there was, an explosion would be likely to result when the molten iron was poured into them. Evidence was also given that the plaintiff, who had had about fourteen years’ experience as a molder, had never done or witnessed the doing of work of that character, and that he did not know the effect of the presence of dampness or rust in the holes.</p> <p>Held, that the jury was justified in finding that the defendants were guilty of negligence in neglecting to examine the holes before directing the plaintiff to fill them, or in failing to notify the plaintiff that such an examination had not been made, and to warn him of the danger which might be expected in case the holes happened to be damp or rusty ;</p> <p>That the jury was also justified in finding that the plaintiff was not guilty of contributory negligence because of his failure to make the examination himself.</p>

Appeal by the plaintiff, Thomas Fiddler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 22d day of October, 1900, upon a nonsuit granted after a trial at the. Onondaga Trial Term.

Appeal by the plaintiff, James 8. Barcus, 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 22d day of November, 1900, upon the decision of the court,, rendered after a trial at the Erie Special Term, affirming a judgment of the Municipal Court of the city of Buffalo rendered on the 28th day of September, .1900, dismissing the plaintiff’s complaint with costs after ja trial before one of the judges…

Appeal by the defendant, Michael Kohles, from a judgment of the County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 28th day of December, 19.00, ¿ffirming a judgment of the Municipal Court of the city of Syracuse.

<p>Judgment in replevin not determining the value of the property — it is a bar to a subsequent action for its value.</p> <p>A mortgagee of chattels, seized under an execution against the mortgagor, brought an action against the sheriff to replevin the property, alleging in the complaint the value of each specific chattel and also their aggregate value. No proof of value was given at the trial, although that question had been put in issue by the answer; the judgment simply awarded the possession of the property to the mortgagee and did not fix the plaintiff’s damages as required by ■ section 1730 of the Code of Civil Procedure. In the meantime the property had been retaken by the sheriff and sold pursuant to the -execution held by him. Subsequently, after the execution for the property had been issued by the mortgagee and returned unsatisfied, he. commenced an -action against the sheriff to recover the value of such property.</p> <p>Held, that the prior judgment was a bar to the maintenance of the second action.</p>

<p>Deed to a woman and her affianced husband—when on their marriage it creates a tenancy by the entirety — an accounting by the husband who has received the avails of a mortgage and the rents and profits of the land, compelled.</p> <p>A deed executed by a woman to her daughter and the latter’s affianced husband, in order to provide a home for them, which states that the grantees shall take “as joint tenants, and not as tenants in common, the survivor to take of the second part,’’ creates, when the arrangement is consummated by the marriage of the grantees, a tenancy by the entirety and not a joint tenancy, and neither of the grantees can maintain an action of partition.</p> <p>Where it appears that the wife joined in mortgages on the property “at the special instance and request” of her husband, and that he received the entire avails thereof for his own use and benefit, and that in addition thereto he has had the solo care and management of the property, “ and has * * * received most of the rents and profits ” thereof during their joint ownership, the wife is entitled to maintain an action against her husband for an accounting.</p>

<p>Appeal by the plaintiff, Margaret McMahon, , from an interlocutory judgment of the County Court of Niagara 'county in favor of the defendant, Frank Specht, entered in the office of the clerk of the county of Niagara on the 22d day of January, 1900, upon the decision of the court adjudging that the plaintiff is entitled to dower in the premises described in the complaint but subject to a ratable contribution by her towards the payment of the mortgage given by one Mary McMahon to Myron L. Burrell, as executor.</p>

<p>■ Appeal by the defendant, C. Wilbur Monroe, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe, affirming a judgment of a police magistrate rendered on the 12th day of October, 1900, convicting the defendant of the crime of petit larceny.</p>

<p> Negligence—injury to ah employee repairing a car, from the breaking of a plank placed between scaffolds on each side of the cart—direction of the foreman to go there—objection that a scaffold violated the Labor Law, not mailable on appeal if not raised on the trial. </p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff, while employed as a car repairer in the defendant’s repair shop, it appeared that there were three parallel repair tracks in the shop, and that on each side of each of the three tracks was a permanent scaffolding, suspended ten feet from the floor; and designed to be used by the workmen while .engaged in repairing the sides and roofs of the cars, and that when ¡it was necessary to work upon the end of the car the workmen selected planks from a supply of suitable planks kept for that purpose and constructed a temporary staging by laying the planks across the space between the permanent scaffolds; that on the day of the accident the plaintiff, his foreman and two other employees got upon a plank, which had been placed across the space between the permanent scaffolds, for the purpose of repairing the roof of a car, and that, while they were so engaged, the plank broke, precipitating the plaintiff to the ground and injuring his ankle. The plaintiff had been employed by the defendant for four years, and was aware that it was one of the defendant’s rules that.no more than two men should stand upon one of these planks at the same time. '</p> <p>Held, that the placing of the plank in position was a mere detail of the work,- and that the fact that the plaintiff Went upon it under the direction of the foreman did not charge the defendant with liability for the injury sustainéd by the plaintiff, even though the plank Were unsound;</p> <p>That the point that the temporary staging was not constructed in compliance with the Labor Law (Laws of 1897, chap. 415, §§ 18, 19) was not available to the plaintiff, as the case had been tried without any intimation that that statute affected the defendant’s liability.</p>

• Motion by the defendant, John C. Lighthouse, for a new trial upon a case containing exceptions ordered to be heard at the Appel ate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Monroe Trial Term.

Appeal by the plaintiff, Charles Weston, as executor, etc., of Abijah Weston, deceased, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus bn the 13th day of February, 1901, vacating and setting aside the service of a summons, complaint and injunction on George H. Barlow, vice-president of the defendant.

Appeal by the defendant, the Syracuse Rapid Transit 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 Onondaga on the 18th day of January, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p> Justice of the-peace —penalty for a. failure to remove an encroachment on a highway where the defendant does not plead, title—proof of a highway by user will sustain the action—title is not involved in an issue as to actual possession. </p> <p>Where in an action brought in a Justice’s Court under section. 105 of the Highway Law (Laws of 1890, chap. 568), to recover the statutory penalty for a failure to remove an encroachment upon a highway, the defendant does not plead title, the controversy is confined to the question whether the land encroached upon was used as a highway by the public.</p> <p>An action may be brought under this section, although the alleged highway was never laid out or entered of record but was established by User.</p> <p>An issue as to the actual possession of land, and not as to the right to such possession, does not involve the titlé and may be litigated in a Justice’s Court.</p>

Appeal by the plaintiff, Daniel E. Hodnett, as administrator,, etc., of Richard Hodnett, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Allegany on the 18th day of August, 1900, upon the report of a referee dismissing the. complaint at the close of the plaintiff’s evidence.

Appeal by the defendant, William J. Grlen, from a judgment of the County Court of Wayne county in favor of the plaintiff, rendered on the 29th day of March, 1898, adjudging him guilty of the crime, of embracery.

Appeal by the defendant, the Prussian National Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of April, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Trust ^-judgment for the recovery of a fund, held by a guardian, from, his assignee for creditors — not set aside because such assignee, who assented to its entry, was a surety on the guardian’s bond.</p> <p>Where the administrators of a decedent bring an action against the assignee for the benefit of creditors of a firm, of which the decedent was a member in his . lifetime, to recover from such assignee certain money which had been paid to the decedent as guardian of certain infants and had not been kept as a separate fund by him, and the parties, acting in good faith and in the belief that the administrators were entitled to recover, try the case upon stipulations and the oral presentation made by each counsel, and a judgment in favor of the administrators is entered in conformity to the complaint, such judgment will not be set aside because it appears that the assignee was one of the sureties on the bond given by the decedent as guardian or because the action was practically conducted on behalf of both parties by the attorney for the assignee.</p> <p>Adams, P. J., dissented.</p>

<p>Certiorari issued out of the Supreme Court and attested on the . 4th day of April, 1901, directed to Frank H. Flood and' others, commissioners of the fire department of the city of Elmira, N. Y., commanding them to certify and return to the office of the clerk of the county of Chemung all and singular their proceedings touching the removal "of the relator from the offices of assistant chief engineer of the fire department of the city of Elmira and superintendent of the fire alarm telegraph system of the city of' Elmira, and his reduction to the, office of hoseman in the -fire department of the city of Elmira.</p> <p>The relator was a member of the fire department of the city of Elmira and one of the assistant engineers thereof. He was also superintendent of' the fire alarm telegraph. The; respondents were the fire commissioners of such department.</p> <p>Charges of misconduct were preferred against the relator by Commissioner Cotton, one of which, among several others, was that he was intoxicated while on duty upon the 11th of February, 1901. Such charges were, upon notice to him, brought to a héaring before the fire commissioners, and by the vote of two of them, viz., Cotton and La France, he was found, guilty of being intoxicated as charged and was reduced from his said offices of assistant engineer and superintendent to the position of hoseman in such department.</p> <p>At the commencement of the hearing the relator claimed the. right to be represented by codhsel, and .asked that Mr. Stanchfield be permitted to appear and act for him as such during the trial. This claim was rejected by the commissioners. The relator was required to proceed to trial without, counsel, and Mr. Stanchfield was required to leave the room.</p> <p>The case now comes into this court upon a writ of certiorari to. review the proceedings of the commissioners upon such hearing* and several grounds of error are assigned for which a reversal of their decision is asked.</p>

Appeal by the plaintiffs, Mary A. Owens and Esmus Woodward, as surviving executors, etc., of Thomas Owens, deceased, and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schuyler on the 30th day of November, 1900, upon the decision of the court rendered after a trial at the Schuyler Special Term.

Appeal by the plaintiff, Albert L. Willey, from a judgment of the Supreme Court in favor of the defendants, entered in the office •of the clerk of the county of Tompkins on the 22d day of January, 1901, upon the decision of the court rendered after a trial at the Tompkins Special Term. The action is in ejectment.

Appeal by the claimant, the American Bank Note Company, from a judgment of the Court' of Claims in favor of the defendant, entered in the ¡office of the clerk of said court on the 19tli day… Held: that he was authorized to order them .only from the Brandow Printing Company. The Brandow Printing Company has not been paid for these licenses, nor has this company any claim ■against the State therefor. The Supreme Court by mandamus required the Comptroller to audit the claim.

Appeal by the defendant, The Town of New Scotland, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 26tli day of April, 1900, upon the report of a referee.

Appeal by the plaintiffs, William J. Gray and another, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 2d day of January, 1900,' affirming a judgment rendered by the City Court of Albany on the 14th day of March, 1899, dismissing the plaintiffs’ complaint.

Certiorari issued out of the Supreme Court and attested on the-1st day of September, 1900, directed to Timothy L. Woodruff and others, as Commissioners of the Land Office of the State of New; York, commanding them to certify and return to the office of the clerk of Albany county all and singular their proceedings relating to the granting of the application of George E. Brightson for four and four hundred and seventy-six one-thousandths acres of land under the waters of Cold…

Appeal by the claimant, Thomas Killam, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 20th day of September, 1899, dismissing the claimant’s claim.

Appeal by the defendant, Fred S. Howell, from an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 21st day of March, 1901, permitting plaintiff’s attorneys to prosecute this action to judgment, after settlement, for the purpose of enforcing their lien for costs under- section 66 of the Code of Civil Procedure.

Appeal, by the plaintiff, The Patrons of Industry Fire Insurance Company, from a judgment of the County Court of the county of Franklin in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 14th day of January, 1901, affirming a judgment of the J ustice’s Court.

<p>Moneys of an insurance company and of a savings and loan association, deposited by their respective agents in a common bank account — a payment of the same to the respective principals, held to be good as against an assignee for creditors of the-agents.</p> <p>A firm of fire insurance agents made it a practice to deposit the net insurance-premiums collected hy them in a hank account standing in the name of one of the copartners, and then to remit the same hy check to the companies for which they were collected. The other copartner was the treasurer of a savings and loan association, and it was his practice to deposit the funds collected by him for the association, less his commissions, in the bank account above mentioned, and then to remit such sums to the sayings and loan association by-check. The firm becoming insolvent, checks were drawn for the amounts-payable to the insurance companies and to the savings and loan association, respectively, and were forwarded to them by mail. Thereafter, and before the checks were presented to the bank for payment, the members of the firm, individually and as copartners, made a general assignment for the benefit of creditors. .</p> <p>The moneys collected for the insurance companies and the savings and loan association, which were conceded to he trust funds, were intact, and it did not appear that any part thereof was ever mingled with other funds of the assignors, or that they ever intended to, or did misappropriate any of the moneys: so collected.</p> <p>Meld, that the trust funds, did not pass to the assignee for the benefit of creditors.</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 Town of Kinderhook from an order made by the Board of Railroad Commissioners of the State of New York and entered in the office of the clerk of the county of Columbia on the 16th day of July, 1900, abolishing the grade crossing at Chatham street, in Niverville, in the town of Kinderhook, and determining that public safety requires that said grade crossing be abolished and all travel thereon be diverted to another highway or-crossing to be constructed and…

Motion by the plaintiff, Rebecca L. F. Mahon, to vacate, a judgment for costs in favor of the defendant entered upon the affirmance of a judgment on an appeal taken by the plaintiff.

Appeal by the defendants, Agnes Shannahan 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 Westchester on the 2d day of March, 1901, upon the decision of the court rendered after a trial at thfe Westchester Special Term.

Appeal by the defendant,, the Village of Port Jervis, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 21st day of March, 1901, upon the decision of the court, rendered after a trial at the Orange Special Term, overruling the defendant’s demurrer to the complaint.

Appeal by the defendant, Jacob Rothschild, 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 27th day of March, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1900, denying the defendant’s motion for a new trial made upon the minutes.

<p>A statement by jurors, after the■ jury has been discharged, that they intended- to-, render a different verdict — it justifies a new trial ,in the Municipal Court of Mew TorJc.</p> <p>A jury, before whom an action was tried in the Municipal Court of the city of' New York, announced a verdict in favor of the defendant, were discharged, and'left the court room. After judgment had been entered in favor of the defendant upon the verdict two of the jurymen returned and informed the justice that the jury intended to decide in favor of the plaintiffs and had been told outside of the court room that they had decided for the defendant.</p> <p>Held, that the court had power, upon the affidavits to this effect of all but one" of the jurors, to set aside the verdict and grant a new trial.</p>

<p>Payment of money by a town to drafted men under an unconstitutional statute — it cannot be recovered from the drafted men by the bank which loaned it to the town —mistake of law.</p> <p>"Where a town, acting under the provisions of chapter 664 of the Laws of 1892, authorizing the reimbursement of men drafted into the military service of the United States during the Civil war for the moneys expended by them" in procuring substitutes, borrows money for the purpose specified in the act, and after the money has been voluntarily paid to the drafted men the statute is declared unconstitutional, the bank which loaned the money to the town is not ■entitled to recover from the drafted men, who had not requested such action on its part, the amount received by them, as the mistake under which the payment was made was one of law.</p>

Appeal by the relator, James Wyllys Dixon, 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 13th day of March, 1901, dismissing an alternative writ 'of mandamus. ■

<p>What statute fixing the amount of an assessment for certain work at a definite sum-is not unconstitutional.</p> <p>Chapter 311 of the Laws of 1888, authorizing the construction of a sewerage? system in the village of New Rochelle, provided for a “ direct assessment per lineal foot upon property fronting on the street through which any sewer may he built, a sum not to exceed the average cost of providing and laying each, lineal foot of an eight-inch pipe, to be assessed one-half on each side, of the-street. ” It also provided that the balance of the cost, which ultimately proved, to be about one-half of the total expense of constructing the system, should be. defrayed by the village at large.</p> <p>In 1899, at which time the sewerage system had been almost completed and it had been found by experience that the average cost of laying one foot of eight-inch sewer pipe was three dollars and forty cents, the village was incorporated into-, the city of New Rochelle. The charter (Laws of 1899, chap. 128) provided in section 208 thereof that the property fronting on a street through which a. sewer should be laid or built or property draining therein should be assessed for each lineal foot of sewers built within said street three dollars and forty cents per lineal foot, ithe tax to be assessed one-half on property fronting on. • each side of such streets.</p> <p>Held, that the provision in section 208 of the charter, fixing the amount of theassessmeiit at a definite sum per front foot, did not render that section unconstitutional and void as involving an arbitrary taking of property without due-process of law.</p> <p>Quaere, whether the rule would be different if the entire expense of constructing' the sewer system were placed upon the abutting owners.</p>

<p>Negligence — liability of a railroad company which owns the fee of its right of way and of a road which it has constructed for the public on the side thereof.</p> <p>A railroad company which purchases the fee of its right of way, grades and improves it and calls it an avenue, and for the purpose of developing a seaside resort located along its route constructs a driveway about twenty-five feet in width along one side of its right of way and throws it open to the use of the public, although it does not formally dedicate it to that purpose, is chargeable with the same degree of care with respect to persons traveling upon such driveway as it would be called upon to exercise upon any public driveway.</p>

<p>Appeal by the defendants, William D. Stratton and another, from a. judgment of the County Court of Orange county in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 13th day of September, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of September, 1900, denying the said defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendants, The H£olian Company and another, from .a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of June, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term, with notice of an intention to bring up for review upon such appeal an order made at the Kings County Special Term and entered, in the office of the clerk of the county of Kings…

<p>Appeals by Ellwood Burdsall and another, individually and as executors, etc., of Ellwood Burdsall, deceased, and others, from certain portions of a decree of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court on the 9th day of April, 1900, judicially settling the account of the said Ellwood Burdsall and Richard H. Burdsall, as executors, etc., of Ellwood Burdsall, deceased.</p>

<p>The maintenance of a platform two and one-half feet wide on an elevated railroad without a guard rail — liability for an injury to an employee falling therefrom.</p> <p>A corporation engaged in operating an elevated railroad which fails to equip with a guard rail or other protection a platform two and one-half feet wide on the elevated structure, upon which the employees of the corporation are obliged to walk when engaged in switching trains and other work, is not guilty of negligence which will render it liable to an employee who had had abundant opportunities to observe the general construction of the platform and who, in broad daylight, fell therefrom while walking along it in the performance of his duties.</p>

<p>Negligence — fall of a telegraph pole upon one who removes the wires preparatory to moving it.</p> <p>It is the duty of a railroad company maintaining a telegraph system to equip it in the first instance in such a manner that the poles will furnish a reasonably safe place for its employees to work upon when stringing, repairing, altering or removing the wires, and it is its further duty to keep the poles in the same sate condition by the exercise of reasonable care and inspection.</p> <p>Evidence that while the railroad company was moving the telegraph system from one side of its road to the other, one of the poles, which stood on the side of a bank, fell after the wires had been removed therefrom because it had not been originally imbedded deep enough in the earth or because the supporting earth had been gradually worn away, establishes a prima facie case in favor of a lineman injured by its fall in the absence of evidence that the defect could not. have been discovered by reasonable inspection.</p>

Appeal by the defendant, The Third Avenue 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 Westchester on the 26th day of December, 1900, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 14th day of January, 1901, denying the defendant’s motion for a. new trial made upon the minutes.

<p> Insurance—phrase “vacant or unoccupied” construed. </p> <p>Where a policy of fire insurance, covering a dwelling house and household furniture, contains a provision that it shall be void “if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days,” the fact that the insured nails up the back part of the house, leaves the key with a neighbor and goes away on a visit, remaining away about five months, during which time no one either occupies the house or goes into it, renders the policy void, and the insurance company is not liable for a loss occurring a day or two after the insured returned to the house.</p>

Appeal by the plaintiff, Thomas J. Powers, Jr., as agent for landlord, from a judgment of the County Court of Westchester county in favor of the defendant, bearing date the 23d day of March, 1901,- and entered in the office of the clerk of the county of Westchester, reversing a final order made by a justice of the peace of the town of Cortlandt, in said county, awarding to the plaintiff possession of real estate in summary proceedings.

• Appeal by the relator, Margaret Tobin, 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 18th day of January, 1901, denying her application for a peremptory writ of mandamus directed to John J. Scannell, as fire commissioner of the city of New York and as trustee of the New York fire department pension fund, commanding him to pay the relator the sum of $1,350 and to place her name…

<p>■ Appeal by the defendant, G. Henry Maass, 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 3d day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Frank Sexton 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 Kings on the 8th day of October, 1900, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Attendance officer in the'Flushing school system—he is not one of the “ educational staff ” continued, in office Z>7 section 1117 of the Greater New York charter.</p> <p>An attendance officer, appointed by the board of education of the village of Flushing, which was incorporated into the city of New York, wasi not a member of the “educational staff” within the meaning of section 1117 of the Greater New York charter (Laws of 1897, chap. 878), which provides : “ All superintendents, assistant or associate superintendents, and all principals, teachers and other . members of the educational staff in the public school system of any part of The City of New York as constituted by this act, shall continue to hold their respective positions.”</p> <p>The words “ educational staff” construed the same as “teaching staff.”</p>

<p>Fraud not presumed— an assignment of stock need not he dated nor the blanks filled in— that it was dated after the date of its alleged sale does not overcome the presumption of innocence.</p> <p>Fraud cannot be presumed, but must be proven, and where the evidence does not necessarily lead to the presumption of a fraudulent intent, but is as consistent with innocence as with wrongdoing, that construction must be placed upon it which will exonorate the party implicated from a dishonest intent.</p> <p>Tt is not necessary that an assignment of corporate stock should be dated or that all the blanks should be filled in in order that it shall be effective to convey the legal and equitable title to the stock.</p> <p>In an action begun in 1893 by a man who had been adjudged insane, but who had recovered his sanity, against his former committee upon the ground that the latter, when settling his accounts in 1863, had falsely represented to the plaintiff that he had sold certain railroad stock belonging to the plaintiff, at a certain price at a certain time, when, in fact he had sold it at another time at a higher price, it was</p> <p>Held, that the fact that the assignment of the stock was dated about four months later than the date which appeared in the books of the defendant, and in his sworn account filed with the clerk of the court in 1863, as the day on which he sold the stock, was not sufficient to overcome the presumption of innocence. Sewell, J., dissented.</p>

' Appeal by the. ■ defendant, John E. Ryan, 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 24th day of May, 1901, adjudging him guilty of a contempt of court for violating the injunction contained in an order made in-proceedings supplementary to execution by paying the sum of sixty dollars to one of his creditors after the order had been served upon him.

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 10th day of December, 1900, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 29th day of December, 1900; denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, William Isaacsen, from a judgment of the. Municipal Court of the city of ¡New York, borough of Brooklyn, second district, rendered on the 22d day of May, 1901, dismissing: the-complaint.</p>

<p>Appeal by the defendant, George Garner, from a judgment of the County Court of Nassau county in favor of the plaintiff, rendered on the 4th day of December, 1900, convicting him of the crime of rape in the second degree.</p>

<p>Receiver in supplementary proceedings — Ms appointment does not prevent the examination of a third person — an affidavit that the latter “ haspersonal property of the judgment debtor ” or “ is indebted to him” is insufficient.</p> <p>The appointment of a receiver of a judgment debtor in proceedings supplementary to execution, does not prevent the judgment creditor from obtaining an order for the examination of a third party alleged to have property of the-judgment debtor in his possession.</p> <p>Semble, that an allegation in the moving affidavit that the third party “has personal property of the judgment debtor exceeding ten dollars in value, or is-indebted to him in a sum exceeding ten dollars/’ is insufficient.</p>

Appeal by the plaintiff, Elizabeth A. Clark, 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 3d day of July, 1901, denying the plaintiff’s motion to vacate a judgment theretofore entered against her in the above-entitled action.

<p>Appeal by the plaintiff, Anna D. Fawdrey, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the loth day of March, 1901, setting aside the, verdict of a jury rendered in favor of the plaintiff and granting a new trial, on the ground that the amount awarded by the verdict was excessive.</p>

Appeal by the plaintiff, Irene Lateer, as administratrix, etc., of Judson T. Lateer, deceased, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 17th day of June, 1901, substituting Lewis W. Robinson as defendant in the action in the place and stead of the Prudential Insurance Company of America.

Appeal by the plaintiff, Thomas D. Eadie, from a judgment of the Municipal Court of the city of New York dismissing the plaintiff’s complaint upon the merits.

Appeal by the plaintiffi Michael Rosa, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 15th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 22d day of December, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Brooklyn Heights Railroad Com-', pany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the icounty of Kings on the 23d day of February, 1901, upon the verdict of a jury for $3,125, 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>

Appeal by the plaintiff, Jennie Mandigo, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 6th day of December, 1900, setting aside the verdict of a jury rendered in favor of the plaintiff and granting a new trial.

Appeal by Archibald Douglas and Paul Armitage, as substituted trustees of the estate of Henry L. Douglas, deceased, and others, from an order of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court on the 22d day of December, 1900, as resettled by an order entered in said Surrogate’s Court on the 7th day of January, 1901.

Appeal by the defendant, The^City of New York, from so much of a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 24th day of July, 1901), upon the. decision of the court rendered after a trial at the Queens County Special Term as awards damages and an additional allowance of costs to the plaintiffs.

<p>Will—suspension of the power of alienation for more than two lives — an estate does not vest under a direction to divide — an allowance not made to a guardian ad litem of infants having no estate.</p> <p>A testator, who left him surviving a widow and seven children, by his will gave his estate, both real and personal, to his executors in' trust to pay the income thereof to his wife during her natural life, and at the death of his wife to divide his estate into seven equal parts, and “to pay the income and.profits of one share thereof to Eva Bindrim, wife of my son Julius Bindrim, during the minority of my grandchildren, the children of my said son Julius Bindrim. to be used by her for the support, maintenance and education of said grandchildren, and when they attain the age of twenty-one years to divide such share among 'such grandchildren equally, share and share alike.” Here follows a similar provision for another daughter, and then the 3d paragraph of the will provides: “In case of the death of any of my said children or grandchildren under the age of twenty-one years, the share of such child shall go to his.or her issue, if any, him or her surviving,' or if he or she shall die unmarried and without lawful issue, the share of such child shall go as provided by statute in case I died intestate.”</p> <p>The testator was survived by his five grandchildren,' children of his son Julius Bindrim.</p> <p>Held, that the will suspended the absolute power of alienation for more than two lives in being at the death of the testator, viz., during the life of the testator’s widow and during the minorities of the several grandchildren who were living at the time of the testator’s death, and also during the minority of those who should be born after his death;</p> <p>That as the only gift to the grandchildren was 'by a direction to the executors to divide at a future time, no present interest vested in them; That as the testator’s grandchildren had no interest in the estate, the guardian ad litem appointed to represent them in an action brought for a construction of the will was not entitled to an allowance in addition to the taxable costs.</p>

• Appeal by the defendant, William F. Miller, from a judgment of the County Court of the county of Kings in favor of the plaintiff, rendered on the 30th day of April, 1900, convicting the defendant of the crime of grand larceny, and also from an order denying the defendant’s motion for a new trial. The indictment under which the defendant was convicted contained two counts.

Appeal by the defendant, the Electric Illuminating and Power Company of Long Island City, from a judgment of the Supreme Court in favor of the plain tiff, entered in the office of. the. clerk of the county of Kings on the 6th day of December, 1900, upon the verdict of a jury for $6,500, and also from an order entered in .said clerk’s office on the-4th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Coceo Yenanzio, by his guardian ad. litem, Salvatore Yenanzio, 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 18th day of February, 1901, denying the plaintiff’s motion to set aside an order theretofore entered in the above-entitled action, requiring him to furnish security for costs.

<p>' • Appeal by the plaintiff, Florence S. Leeds, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 13th day of November, 1900, upon the dismissal of the complaint by direction of -the court " after a trial at the Queens Oounty Trial Term, and also from an order entered in said clerk’s office on the 13th day of November, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Negligence -—the act of grounding a printing press charged with electricity, held not to he within the scope of employment of one directed to repair a rheostat — a failure to foresee an extraordinary consequence of an act is not negligence.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the New York Times Company, in consequence of the unexpected starting of a printing press, it appeared that the New York Times Company entered into an agreement with the defendant The World’s Dispem sary Medical Association to publish certain advertisements- in consideration that an electric motor and rheostat should be manufactured and installed for the New York Times Company by the defendant The American Engine Company.</p> <p>The engine company sent two experts, one to install the motor and the other to install the rheostat. After the motor and rheostat had been installed and used by the New York Times Company for about ten days, the expert who installed the rheostat was sent to repair and readjust it. After finishing his work on the rheostat, the expert took up his tools to go home, and while waiting in the press room for his train, the foreman of the press room notified him that the press was charged with electricity and asked him to ground' it. For this purpose the expert connected the water pipe with the shaft of the-press, when a-flash followed and- the. press moved, drawing the hand :of the, plaintiff, who was a pressman in the employ of the New York Times Company, into the cylinders and mangling it. There was no evidence that the expert was authorized or- directed to work upon or in any manner interfere with'the motor or press, and it was not claimed that he was incompetent or that the motor or rheostat was not properly connected.</p> <p>Seld, that the expert’s ¡attempt to ground the press was an act outside the scope of his employment, and that The American Engine Company-was -not liable for any negligence on his part in so doing;</p> <p>That if it should be conceded that the expert was acting within the scope of his authority at the time of the accident, the defendant could not be charged, with liability to the plaintiff, as it appeared that the occurrence was so extraordinary that the failure to foresee and provide against it could not be considered negligence.</p>

Appeal by the defendant, Lewis G. Langstaff, 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 26th day of March, 1901, denying the defendant’s motion to set aside an order bearing date the 23d day of February, 1901, and entered in said clerk’s office, in so far as it granted leave to the plaintiff to prosecute as a poor person.

<p> Equity suit to set aside a bill of sale as fraudulent as to creditors—when a money judgment cannot be granted. </p> <p>Where a receiver appointed in proceedings supplementary to execution brings an action in equity to set aside as fraudulent and void as to creditors a bill of sale executed by the judgment debtor to one of the defendants and to compel such defendant to convey to the plaintiff the property so transferred and to account, for and pay over the proceeds of any part thereof disposed of by it, and the action results in a decree adjudging the bill of sale to have been made in fraud of creditors, and reciting that the property is still in existence, and directing judgment according to thp relief demanded in the complaint, a personal judgment cannot be rendered against the fraudulent grantee for the value of the property, where no such relief is demanded in the complaint, and, so far as appears, the fraudulent grantee has not interfered with or disposed of the property or hindered the receiver from taking possession of it.</p>

<p>. Appeal by Francis M. Carpenter, treasurer of Westchester county, and another, from a decree of the Surrogate’s Court of Westchester county, entered in- said Surrogate’s Court on the 22d day of December, 1900, fixing the transfer tax upon the estate of Caroline Remsen Gihon, deceased.</p> <p>The appeal is taken on the following grounds:</p> <p>. First. That the surrogate has allowed as deductions from the taxable property of said estate the expenses and commissions of the temporary administrator.</p> <p>Second. That the surrogate has allowed as deductions from the taxable property of said estate the commissions of trustees.</p> <p>Thi/rd. That the surrogate has allowed as taxable deductions from the said estate the legacy tax under the United States War Revenue Law of June 13, 1898.</p>

<p>Appeal by the plaintiff, Morris Goldman, from a judgment of the Municipal Court of the city of New York in favor of the defendant.</p>

Appeal by the defendants, Elizabeth G. Ahearn, individually and as executrix and trustee under the last will and testament of Michael C. Freeman, deceased, and others, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of July, 1900, with notice of intention to bring up for review upon said appeal a so-called, judgment theretofore entered in the action, and also an order entered in…

•Appeal by the defendant, Henry Blume, from a. judgment of the Municipal Court of the city of New York, second district, borough of Brooklyn, iñ favor of the plaintiffs, rendered on the 22d-day of October, 1900.

Appeal by the defendant, The Delaware, Lackawanna and - Western 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 Westchester on the 19th day of February, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 19th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants) Annie C. Richardson 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 25th day of February, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term foreclosing a mortgage.</p>

Appeal by the defendant, Nathan C. Jessup, from a judgment of the Supreme Court in.favor of the plaintiffs, entered in the office of' the clerk of the county of Suffolk on the 29th day of August, 1900,. upon the decision of the court rendered after a trial at the Suffolk-Special Term. The facts are stated in the opinion of Smith, j., and in the dissenting opinion of Goodrich, P. J. -

Appeal by the plaintiff, Samuel Abrams, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, third district, rendered on the 11th day of January, 1901 j dismissing the complaint upon the merits.

<p>Appeal by the plaintiffs, Elizabeth Lake 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 Kings on the 12th day of J une, 1901, relieving Louis E. Gross- from his purchase at a partition sale had in the above-entitled action:</p>

<p>Appeal by the plaintiff, Eddie Bryant, 'an infant, by Mary Harper, Ms 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 Kings on the 20th day of May, 1901, denying the plaintiff’s motion for a substitution of attorneys.</p>

Appeal by the defendants, Elizabeth L. Brown and others, from an . order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of' March, 1901, denying said defendants’ motion to vacate an order of reference theretofore granted in the action. t

<p>Appeal by the plaintiff, Amelia Grosjean, from a judgment of the Supreme Court in favor of the defendant, entered in the office' of the clerk of the county of Richmond on the 12th day of March, 1901, upon the- dismissal of the complaint by direction of the court after a trial at the Richmond Trial Term.</p>

<p>Amendment of a complaint on the trial—an allegation of a sale of goods to the defendant cannot be changed into one of a promise to pay for goods sold to a third party. ' »</p> <p>Where an action is brought to recover for goods alleged to have been sold and delivered to the defendant at his special instance and request, and it appears upon the trial thereof that the goods were sold and delivered to a third person and that the defendant is sought to be held liable upon his promise to pay for the goods so furnished, the court has no power to allow the plaintiff to amend ■ his complaint to conform to the facts proved, as such an amendment would change substantially the nature of the action and is not authorized by section 723 of the Code of Civil Procedure.</p>

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

<p> Allowance lo a defendant in an action in which a judgment of actual partition is entered. </p> <p>The Supreme Court has power under section 3253 of the Code of Civil Procedure, as amended by chapter 299 of the Laws of 1899, to make an allowance to a defendant in an action in which a judgment of actual partition is entered.</p> <p>Appeal by the defendants, Abraham J. Wyckoff and others, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 30th day of November, 1900, as denies the said defendants’ motion for an additional allowance.</p>

<p>Appeal by the plaintiff, Charles Morschauser, as sole surviving administrator, etc., of Hester Halliwell, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 18th day of February, 1901, upon the décision of the court, rendered after a trial before the court without a jury at the Dutchess County Trial Term, directing a sum of money, the proceeds of an insurance policy, in the hands of a trustee for the parties to the action, to be paid to the defendant.</p>

<p>Jury trial — when a case may not be taken from the jury — Conversion of personal property—an assignee of the owner from, whom, before the assignment, it has been wrongfully taken, may after demand sue.</p> <p>In a case which of right is triable by jury the court cannot take from .that tribunal the ultimate decision of the fact, unless the fact is either uncontradicted or the- contradiction is illusory or the answering evidence is a “ scintilla ” merely.</p> <p>The wrongful taking of personal property does not divest the true owner of his; title thereto, and an assignment of such property subsequently executed by such owner will vest the title thereto in the assignee; and if after obtaining the assignment the assignee demands possession of the property from the wrongful taker, the refusal of the latter to comply with such demand will entitle the assignee to maintain an action for conversion against him.</p>

<p>Appeal by John I. Kane and another, as executors, etc., of George A. Brandreth, deceased, from certain portions of a decree of the Surrogate’s Court of the county of Westchester, entered in the office of said surrogate on the 27th day of October, 1900, settling and adjusting their accounts as such executors.</p>

<p>Appeal by the defendants, Harry M. Porter 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 Oswego on the 3d day of November, 1900, upon the decision of the court rendered after a trial at the Oswego Special Term.</p> <p>The deed referred to in the opinion contained the following recitals:</p> <p>“ It is understood and agreed that this grant is made in trust for the benefit of Charles James Case of Fulton and the lawful children of the said Charles James Case under the conditions and restrictions following to wit: should the said Charles J. Case die without children surviving him leaving a widow then the: premises aforesaid shall be subject to the use of said widow as long as she remains his widow, but it is understood that should the present wife of the said C. J. Case become a widow her use of the premises is to be held subject and in subordination to the dower right of the wife of the said Charles Gr. Case and if she the widow of said Charles James Case again marries the said premises shall become the property of the lawful heirs of said party of the first part and it is further understood that in case the said Charles James Case should have a lawful child or lawful children living at the time of the decease of the said C. Gr. Case the grantor herein & at the time of the decease of the present wife of said grantor then the premises hereby conveyed are to vest in such child or children and it is the intent of this Trust that the said Ohesebro & Hull or their legal representatives shall convey the same to such child or children that is to say after the decease of the said Charles Gr. Case & wife it is understood & agreed that the said Charles Gr. Case & wife shall retain full possession of said premises during their lives and it is not until after the decease of both the said Charles G. Case & his wife, that the said Charles J. Cáse or his wife or children are to take any rights under the trust hereby created.”</p>

<p>Undertaking in replevin — liability thereunder where the action is discontinued — how established.</p> <p>In an action upon an undertaking given by the plaintiff in a replevin action, which was afterwards discontinued, the defendants’ liability is limited to a return of the property replevied or the payment of its value.</p> <p>In order to establish such a liability it must be shown that the plaintiff in the replevin action took possession of the chattel by virtue of the writ of replevin.</p>

<p> Costs—what term fees are taxable. </p> <p>An appeal from a judgment rendered by a justice of the peace was taken to the County Court of Herkimer county. The regular jury terms of the County Court of Herkimer county are held in May and December. A regular term without a jury is also held on the first Monday of each month. The case was noticed for trial by both parties for the December term, 1900, and was placed upon the calendar for that term. January 31, 1901, the plaintiff,</p> <p>who was the appellant, made a motion to postpone the trial on the ground that he-was ill and unable to be present in court. This motion was granted by an order which contained the following provision, i(and also upon the further condition that the defendant may notice the same for trial for any of the regular terms of this court held on the first Monday of each month,' and have the same tried thereat either before the court without a jury or before a jury to be drawn from the so-called Herkimer or third box as the defendant may elect or the court direct.” In obedience to this condition both parties duly noticed the case for trial at the March term, but upon the application of the plaintiff the trial was again postponed. The case was noticed by both parties for trial at the April term and they were ready for trial when, upon the motion of the court, the trial was fixed for April tenth, and the jury drawn from the third, or Herkimer, box to try the cause. April 1,1901, the defendant’s counsel offered to try the case before the court without a jury, which the plaintiff’s counsel declined to do. The defendant thereupon made a motion that the issues be heard before a referee, which was denied at the instance of the plaintiff. On the eighth of April the county judge advised the defendant’s counsel that the case would not be tried on the day fixed, as he knew of no authority for summoning a jury for that time. The case was finally tried at the May term, and decided in favor of the defendant.</p> <p>5eld, that the defendant was entitled to include in his bill of costs the term fees for the terms appointed to be held in the months'of March and April. "</p>

Appeal by the plaintiff, The People of the State of Hew York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 22d day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term.

Appeal by the plaintiff, The City of Syracuse, 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 Onondaga on the 27th day of June, 1901, vacating a temporary injunction theretofore granted in the action.

<p> Champerty—conveyance, under a mortgage foreclosure sale, of premises in the actual-possession of a purchaser thereof at a tax sale. </p> <p>A conveyance of mortgaged premises executed by a sheriff pursuant to a judgment of foreclosure and sale, at a time when the premises áre in the actual possession of a third party who claims title thereto under a tax deed executed) by the treasurer of the county in which the premises are situated, is void under the Statute of Champerty however defective the title based upon the tax deed-may. be.</p>

<p>Appeal by the plaintiff, Richard Ripsom, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 19th day of February, 1901, Upon the decision of the court rendered after a trial at the Monroe Special Term dismissing the plaintiff’s complaint.</p> <p>The action was brought to compel the specific performance of an .alleged contract by which John Och agreed to give his entire estate to the plaintiff and Augustus Ripsom at his death. The plaintiff alleges that Anna Maria Ripsom devised a certain piece of real estate to the said J ohn Och, Augustus Ripsom and the plaintiff, share and share alike, and that such real estate was worth the sum of $3,600; that on the 28th day of September, 1876, the plaintiff and Augustus. Ripsom and their wives executed a quitclaim deed of their respective interests in such property upon a stated consideration of $900, :$800 of which was to be paid in cash and $100 of which was to be paid for masses for the repose of the soul of Anna Maria Ripsom and the erection of a gravestone at her grave. The plaintiff claims that .as a part of the consideration for the conveyance Och further agreed that upon his death he would give his entire estate to the grantors, Richard Ripsom and Augustus Ripsom.</p> <p>The heirs of Augustus Ripsom brought a similar action and the actions were tried together.</p>

Appeals by Elizabeth Raymond and by John Murkett from an order of the County Court of Chautauqua county, entered in the office of the clerk of the county of Chautauqua on the 5th day of March, 1900, directing the sheriff of said county to proceed with the execution of a writ of assistance theretofore issued out of the said County Court, and to remove the appellants; and all other persons claiming under them from the premises described in the writ.

Appeal by the plaintiff, Mary M. Graves, from a judgment of the Supreme Court in favor of the defendant, entered iñ the office of the clerk of the county of Cattaraugus on the 18th day of February, 1901, upon the report of a referee dismissing the plaintiff’s complaint.

Appeal by the North River Electric Light and Power 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 2-lst day of May, 1900, denying its motion for an order Tacating and setting aside an order theretofore made in the proceeding appointing commissioners, of estimate and assessment.