Volume 66 — New York Appellate Division Reports

Appeal by James R. Howe, register of the county of Kings, 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 16th day of August, 1901, taxing his fees for making a certain search for William S. Maddox.

Appeal by the petitioner, Margaret 0. Devoe, 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 18th day of May, 1901, confirming the report of a referee appointed to take proof and report to the court as to the persons entitled to take and receive a certain fund held by Miln P. Palmer, as trustee under the will of Frances B. liegeman, deceased, for the benefit of Letitia Devoe…

Appeal by Damon Merrill and other stockholders of the Anglo-American Savings and Loan Association . 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 21st day of August, 190-1, denying their motion for leave to intervene and be made parties defendant in the action, and to vacate or modify an order made in the above-entitled action on the 29th day of June, 1901, and entered in said…

<p>Conversion — destruction of a check, while in the hands of the constable to whom it h'as been given in payment of a judgment, by the drawer thereof— measure of damages.</p> <p>An execution debtor gave to the constable to whom the execution had been delivered his check in settlement of the judgment, fees and expenses. When the constable presented the check at the bank where it was payable it was discovered that “ two hundred dollars and ninety-five cents,” was written in the body of the check and §210.95 in the margin. The cashier offered to pay the amount stated in the body of the check, but refused to pay the amount stated in the margin. The constable thereupon took the check to the execution debtor and asked him to' rectify the mistake, and the latter snatched the check out of his hands and destroyed it.</p> <p>Held, that the execution creditor might maintain an action for the conversion of the check, and that the measure of damages was the value of such check;</p> <p>That in view of the offer of the cashier of the bank to pay the amouht stated in ■ the body of the check it could not be said that it had no value.</p>

<p>Trade fixtures — when the tenants right thereto rrmsibe exercised — effect of the tenants trustee in bankruptcy taking a new lease.</p> <p>The right of a tenant to remove trade fixtures, placed by him upon the. demised, -'premises, must be exercised before the expiration of the term ór before he -gives up possession.</p> <p>Assuming that an unexercised right to remove trade fixtures passes' to a trustee of the estate of the tenant appointed in bankruptcy proceedings the day after the. . issuing of a warrant for the removal of the tenant for-non-payment of rent, the trustee loses such right by accepting from the landlord a new lease of the property, “together with the buildings thereon and! the appurtenances,” not-containing any reservation of the right to remove the fixtures.</p>

Certiorari issued out of the Supreme Court and attested the-9th day of April, 1900, directed to F. De Haas Simonson and others, members of the school board of the borough of Queens, department, of education of the city of New York, commanding them to certify and return to the office of the clerk of the county of Queens all and singular their proceedings in relation to the removal of the relator from the position of-janitor of. public school No. Y in the borough, 'of Queens,…

Motion by the plaintiff, Margaret Tobin, for. a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term, .

Appeal by the defendant, William Henry, 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 19tli day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office. on the 18th day of March; 1901, denying* the defendant’s motion for a new trial made upon the minutes.

<p>Chapter 621 of the Laws of 1900, authorizing the payment of tabees and the redemption from, tax sales at reduced interest — it does not apply to milage and school taxes or milage tax sales in the milage of Flushing.</p> <p>Chapter 621 of the Laws of 1900, which provides that “Any tax heretofore and before the first day of January, eighteen hundred and ninety-eight, levied for ward, city, town, county or state purposes, and all water rates or rents in arrears at the time of the passage of this act, in that part of the city of New York which heretofore and before the first day of January, eighteen hundred and ninety-eight, formed and constituted the city of Long Island City and the towns of Newtown, Flushing, Jamaica and that part of the town of Hempstead now within the boundaries of the city of New York, in the county of Queens, may be paid and discharged of record at any time before the thirtieth day of September, nineteen hundred, with interest thereon at the rate of two per centum per annum,” and that any land within such territory sold for “unpaid taxes, water rates or rents, for ward, city, town, county or state purposes,” and bid in by the municipalities mentioned might be redeemed from such sales by payment of such taxes and water rates, with interest thereon at the rate of two per cent per annum, does not authorize .the payment, at the reduced rate of interest, of village or school taxes levied by a village in the town of Flushing, or the redemption from village tax sales for non-payment of such taxes, upon payment of the amount of the tax and the reduced rate of interest.</p>

Appeal by the defendant, Tommaso De Palo, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 12th day of April, 1901, upon the decision of the court.

<p>Appeal by the defendant, Julia Diefendorf, 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 30th day of October, 1900,. upon the report of a referee.</p>

<p>Appeal by the defendant August 0. Brust from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 11th day of February, 1901, upon the decision of the court; also an appeal by the defendant Isaac Sommers from so much of said judgment as. fails to award costs to him.</p>

<p>Sale of land by the receiver of a corporation, pending an appeal from, a decree canceling a judgment against it — reinstatement of the judgment—motion for leave to issue execution — notice thereof to the purchaser—right of the Attorney-General to appear in support of the title acquired, under the sale.</p> <p>In an action to enforce the statutory remedies for the mismanagement of a- corporation, the Special Term directed the cancellation of a judgment theretofore recovered against it. Pending an appeal by the judgment creditor, on which 'a stay was granted preventing the clerk from actually canceling .the judgment, the corporation was dissolved in an action brought by the People of the • State of New York, and a receiver was appointed, who, by direction of the . court, sold the real estate of the corporation, subject to certain specified liens, which did not include the canceled judgment. After the receiver’s sale the Appellate Division handed down a decision sustaining, at a reduced amount, the judgment ordered to be canceled by the Special Term.</p> <p>The judgment creditor thereupon made a motion for leave" to issue execution against the corporation and the receiver for the amount of his judgment as reduced by the Appellate Division. Notice of the application was given to the Attorney-General, but not to the person who had acquired the title under the receiver’s sale. The Attorney-General did not appear to oppose the motion and it was granted by default, without any consideration of the questions of law involved.</p> <p>Thereafter the Attorney - General made a motion to set aside the order, and also a motion to open the default.</p> <p>Held, without determining whether the judgment as reduced was a lien upon the real property at the time of the sale by the receiver, that the order granting leave to issue execution should be set aside, with leave to the judgment creditor to renew the motion upon proper notice.</p> <p>The Attorney - General, in a suit in the name of the People for the dissolution of a corporation, may properly appear to sustain the title which the receiver appointed by the judgment rendered in the action has endeavored to convey under a sale made pursuant to such j udgment. .</p>

<p>Appeal by the defendant, James J. McCauley, 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 9th day of August, 1901, resettling an order entered nr said clerk’s office on tiie 2d day of August, 1901, and denying the defendant’s motion to Cancel and discharge a judgment entered against him in the action l " ■</p>

<p>Insurance of a factory on leased ground — knowledge of that fact by, the agent' before Ms appointment — when 'imputable to the_ com/pany — burden.of proof.</p> <p>Where the local agent of an insurance company,' several months before His. . appointment as such, is told by the owner of a cheese factory that the factory-stands upon leased ground, and about a year after his appointment, the agent-issues a policy of fire insurance upon the factory containing a clause providing that it shall be void if the premises are erected upon leased land, the agent’s, knowledge on that subject is not imputable to the insurance company, unless-it appears that such information was present in his mind at the time he issued the policy..</p> <p>In an action brought upon the policy, the burden of prpof that the agent had such - information in mind when he issued the policy is upon the plaintiff, and where* the agent denies that he received such information and'states that at the time-he issued the policy lie had fió knowledge or information that the building was-erected' on leased land, the jury, in the absence of any evidence contradicting the agent’s testimony,, has no right to find that he did have such knowledge-at the time-the-policy was issued.</p> <p>Pei- Smith, Bdwabds and Chase, JJ.</p>

Certiorari issued out of the Supreme Court and attested on the 14th day of July, 1900, directed to Edward'M. Hoffman, Adjutant-General of the State of New York, who has since died and in whose place as defendant in the above-entitled action has been substituted Frederick Phisterer, as Acting Adjutant-General, and others,, commanding them to certify and return to the clerk of the county of Albany all and singular their proceedings in relation to the removal of the relator…

<p>Appeal by Ellen McManus, as administratrix de bonis non of Anthony Mclinight, deceased, from a portion of an order of the Surrogate’s Court óf the county of Albany, entered in said Surrogate’s Court on the 6th day of June, 1901, granting a motion made by the executors of John J. Harrigan, deceased, for a new trial upon the ground of newly-discovered evidence.’</p> <p>Anthony McKnight' died April 14, 1889, and John J. Harrigan was appointed administrator of his estate. Harrigan died in 1893, and Harvey T. Y. Harrigan and Ellen E. Harrigan duly qualified as his executors. Subsequently, in 1896, Ellen McManus was appointed administratrix de bonis non of McKnight’s estate. John J. Harrigan had never rendered any account of his proceedings as such administrator, and shortly after her appointment Ellen McManus commenced proceedings in the Surrogate’s Court of Albany county against his executors to compel an accounting for the property belonging to the McKnight estate. Such proceedings resulted in a decree which was entered April 25, 1900, in which the accounts of such executors as filed by them were surcharged to the extent of $953.40 for a note which had been received by said John J. Harrigan as an asset of said McKnight, deceased, and which the surrogate held had been lost to the McKnight estate by the negligent omission of Harrigan to prosecute and collect the same. It also reduced a credit which was claimed for Harrigan as being moneys paid out for funeral expenses from $350.52 to $200. Ho appeal was taken from such decree. Subsequently, on March 11, 1901, such executors moved before said surrogate for a new trial upon such two items upon the ground of newly-discovered evidence. The surrogate made an order opening such decree and allowing a new trial as to both of such items; and from so much of such order as affected the item of $953.40 allowed on account of such note this appeal is taken.</p>

Appeal by the defendant, Emmett F. Slade, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of December, 1900, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office on the 3d day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, John G. Smart, as president of the Taxpayers’ League of the County of W ashingtdn, from an order of the Supreme Court, made at the Washington Trial Term and entered, in the office of the clerk of the county of Washington on the 15th day of April, 1901, dismissing an alternative writ of mandamus.

Appeal by the plaintiffs, Boah W. Beekman and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Montgomery on the 18th day of March, 1901, upon the verdict of a jury rendered by direction of the court after a trial at the Montgomery Trial Term.

Appeal by the defendant, Theodore M’Vey, from a judgment of the County Court of Montgomery county in favor of the plaintiff, rendered on the 11th day of June, 1900, convicting him of the crime of manslaughter in the first degree. The defendant was barkeeper in a saloon run by one Murphy.

Appeal by the defendant, The American Union Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 23d day of April, 1901, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, the jury having been dismissed. This action is to recover upon a policy of insurance issued upon the life of Dr. Hewitt, the plaintiff’s husband.

Appeal by the defendant, Edwin L. Hall, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 10th day of May, 1901, upon the decision of the court tendered after a trial at the Saratoga Special Term sustaining a demurrer to a part of the defendant’s answer.

Appeal by the plaintiff, Edward Grieb, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 17th day of January, 1901, upon the report of a referee dismissing the complaint. This action was brought against the defendants as sureties upon the official bond of a constable for damages by reason of a levy upon exempt property under execution against the plaintiff.

■ Appeal by the plaintiff, J ohn Heib, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on tlie 9th day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Chemung Trial Term, and also from an order entered in said clerk’s office on the 28th day of September, 1900, denying the plaintiff’s motion for a. new trial made upon the minutes.

. Appeal by the defendant, The Mutual Life Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of March, 1901, upon the verdict of a. jury, and also from an order entered in said clerk’s office on the 4th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Benjamin S. Cowles, from an order of" the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Warren on the-11th day of June, 1901, granting an. injunction pendente lite-restraining the defendant from assigning, surrendering or otherwise disposing of a certain lease, and from taking any proceedings thereunder to eject plaintiff from the premises in the lease described, and from in any way interfering' with plaintiff’s enjoyment of the full benefit of such lease to the same extent as though made to, plaintiff as lessee.</p>

’• Appeal by the defendant, Albert Dorn, from a judgment of The County Court of Fulton county in favor of the plaintiff, entéred in the office of the clerk of the county of Fulton on the 15th day of April, 190Í, upon the decision of the court rendered after a trial before the court without a jury.' The action was originally brought, in the court of a justice of the ■peace where the plaintiff recovered.

Appeal by the defendant, John S. Barry, individually and as executor, etc., of William Stanton, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Rensselaer on the 2d day of April, 1901, upon the decision of the court rendered after a trial at the Rensselaer Trial Term, a jury having been waived. .The action, was .brought to compel the delivery of a deed in accordance with the terms of a contract.

Appeal by the defendant^ the Ehrman Brewing Company, from a judgment of thé Supreme Court in favor of the plaintiff, entered in the Office of the clerk of the county of Chemung on the 26th day-of January, 1901, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 2d day of May, 1901,. denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Emmett F. Slade, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of October, 1900, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on - the 7 th day of- November, 1900, ^denying the defendant’s motion for a new trial made upon the minutes.: . .......</p>

<p> Negligence—collision at a crossing between a locomotive and a carriage -^preponderance of evidence as to the ringing of the bell and the sounding of the whistle. </p> <p>In an action to recover damages for personal injuries, sustained by the plaintiff in consequence of a collision between a carriage in which she was riding and one of the defendant’s locomotives at- a highway crossing, the plaintiff and the two persons who were riding with her in the . carriage testified that while they were approaching -the crossing they listened for the sound of the bell or whistle on the locomotive or the automatic bell at the crossing but heard none.</p> <p>The engineer and fireman of the locomotive and three disinterested witnesses testified to the effect that the signals were given. It was not- disputed that thfe automatic bell at the crossing was ringing immediately after the collision.</p> <p>'Held, that although the testimony of the plaintiff’s witnesses ■ as to the absence of the signals was not of a mere negative character, it was overborne by the testimony given by the defendant’s witnesses, and that a judgment in favor of the plaintiff should be reversed.</p>

Appeal by the relator, Charles W. Spaulding, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 21st day of May, 1901, denying the relator’s motion for a peremptory writ of mandamus, and also from a judgment entered upon said order in said clerk’s office on the 21st day of May, 1901.

Appeal by the plaintiff, Samuel H. Shotwell, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fultpn on the 7th day of June, 1901, denying the plaintiff’s motion to compel the attorneys for certain defendants in the action to refund to the plaintiff money illegally collected by them under an execution.

Appeal by the defendant, Charles Palmer, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Schoharie on the 8th day of July, 1901, denying the defendant’s motion to change.the place of trial from the county of Schoharie to the county of Albany.

Appeal by the plaintiff, John Hall, from a judgment of the Supreme Court in favor of- the defendants, entered in the office of the clerk of the county of Washington on the 12th day of March, 1901, upon the dismissal of the complaint by direction of the court as to the defendants Isaac J. Finch, Charles A. Vaughn and Henry C. Clements, and upon the verdict of a jury as to the defendant Frederick I. Baker, and also from an order entered in said clerk’s office on the 30th day…

<p>Will — what words are sufficient to create a trust—the decision of a court of general jurisdiction in a sister Stale, the domicile of the testator, will control in determining-the proper construction of the will.</p> <p>The will oí Robert M. Shoemaker, who was a resilient Of the State of Ohio, provided:</p> <p>“Fourth- I will and devise to my sons Robert H., Murray 0. and Michael M. Shoemaker; to my daughters Mary S. Putnam and Henrietta Christopher, each the sum of fifty thousand (§50,000.00) dollars, * * * to be paid to-each of them, or to the descendants of such of them as may then be deceased, • without allowing interest thereon, within six months after my death * *</p> <p>‘ ‘ Seventeenth. I also hereby devise and will that all advances, devises, rents and bequests in this will made, provided for or devised to my son Robert H., are and shall be held by him in trust only for the support and benefit of his wife, and children including therein his lineal descendants, he, my son and his wife to have during their natural lives their support only out of said advances, devises, rents and bequests, and all income thereof to be so used, and in the maintenance and education of the children of my said son Robert H., and upon the death of said son and his wife, all of said devises and bequests shall pass to and become the property of his children, or the descendants of any deceased child, taking per stirpes, share and share alike.</p> <p>“ Eighteenth. I further hereby appoint my son-in-law John R. Putnam as trustee for his wife, my daughter Mary, and it is my will and direction that all moneys, rents and property of whatever kind under or by authority of this will advanced, paid to or devised to my daughter Mary shall, subject to the provisions of this will, as to the management of my estate by my executors pass to and be managed by my said son-in-law John R. Putnam, at his discretion for the benefit of my said daughter Mary and her children, including the lineal .descendants of any deceased child, and upon the death of my said daughter all of said property and her share in my estate shall.pass to and become the property of her children -including the lineal descendants of any deceased child, taking per stirpes share and share alike.”</p> <p>1 ‘ Twenty-first. I give and bequeath all the residue of iny estate, both real and personal of whatever kind or wherever situated, and not hereinbefore specially devised to my said executors in this will named, and to the survivor or survivors of them to be held in trust for the uses and purposes following: that is to say, to hold, manage, and control in the best and most careful manner, until the final execution of all the several duties and functions .herein charged and imposed upon them * * * held as the property of my estate entire, and be invested as herein directed, and the rents, issues, and profits after paying taxes, insurance, and costs of management, shall until two years after my decease, be equally divided among my five children, or in case of the death, of either of my five children then among the surviving children and the children— my grandchildren of such deceased child, the child or children of such deceased child of mine, to take the share of such rents, issues and profits the deceased parent would have taken if -alive, and then at the expiration of two years after my decease all the property real and personal belonging to my estate and not in this will otherwise disposed of, and subject to the restrictions and limitations hereinbefore provided shall be divided, or, if sold, the property or proceeds of sale be divided equally among my five children, share and share alike, or their lineal heirs, such heir or heirs taking only the share his, her, or their parent would have taken if alive.</p> <p>“ Provided that all the bequests and conditions of this item are and shall be subject to the bequests, limitations, and conditions of this will as to each of my said children.”</p> <p>Murray 0. Shoemaker died intestate a few months after the death of the testator, leaving surviving him a widow and two minor children.</p> <p>An action for a judicial Construction of the will was thereupon brought in-a court of general jurisdiction in the State of Ohio. This action, to which all persons in interest were made parties, resulted in a decree ad judging ‘ ‘ That it was the intention of the testator that the legacies mentioned in the said fourth item should vest on* the said five children of the said testator respectively at the time of the testator’s death. * * * That it was the testator’s intention to vest the residue of his property not thereinbefore specifically disposed of and consisting of both real and personal property and being the portion of his estate mentioned in the twenty-first item of said will in his five children equally at the date of his death. The proportion or share of said Robert H. Shoemaker to be held in trust in accordance with the terms of the seventeenth item of said will, and the said share upon the death of the said Robert H. and his wife Mary to devolve as in the'said seventeenth item specified, and the share of v said Mary S. Putnam to be held in trust by her husband John R. Putnam in accordance with the terms, of the eighteenth item Of said will, and to devolve on the death of said Mary S. Putnam as in the said eighteenth item specified. That the other three-fifths of said residuary estate and the income thereof vested at the death of the testator in Mary (Murray) C. Shoemaker, Michael M. Shoemaker and Henrietta Christopher respectively in equal shares, the real estate in fee simple and the personal property absolutely.”</p> <p>The decree then referred to a condition subsequent contained in the 19th item of , the will which related to a child dying without lawful issue before the period of distribution mentioned in the 21st item of the will, and then continued:</p> <p>“ The said Murray C. Shoemaker having died within the said period (viz,, the period of distribution), but leaving lawful issue, and the four "other children having survived said period, the estates of Murray 0., Michael M., and Henrietta Christopher have become absolute and vested estates in fee'simple •and-not subject to any condition; * * * that the time fixed by said twenty-first item for the distribution of said residuary estate having expired February 10, 1887, and no distribution thereof having been made, the said distributees are each and all entitled to have their shares distributed to them immediately as such absolute owners thereof, except Robert H. Shoemaker and Mary S.Putnam, who are entitled as above found.- * * * ”</p> <p>An appeal from this decree was taken by John R. Putnam and Mary S. Putnam, but was never brought to a hearing. Thereafter Mary S. Putnam and John R, Putnam died, and one of the children of the said Mary S.. Putnam, who was a resident of the-State of New York, brought an action in the Supreme Court of that State for a judicial construction of that portion of the will of Robert M. Shoemaker relating to the trust alleged to have been created for the benefit of .the said- Mary S. Putnam and her children and ,fbr a division of the trust fund.</p> <p>Meld, that the law of the testator’s domicile should control the interpretation of the will and that the decree of the Ohio court was binding upon the courts of the State of New York;</p> <p>That as to one-fifth of the residuary estate the will created a valid active trust in John R. Putnam for the benefit of Mary S. Putnam and her children, and did not vest the legal title to such one-fifth in Mary S. Putnam, leaving John R. Putnam merely a passive trustee without authority to do any effective act;</p> <p>That this was the effect of the decree of the Ohio court when construed as a whole, notwithstanding the fact that it contained a recital “That it was the testator’s intention to vest the residue of his property * ” * in his five children equally at the date of his death.”</p>

Appeal by the relator, Studebaker Brothers Company of New York, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 27th day of July, 1901, denying a motion of the relator for a peremptory writ of mandamus to command the defendant forthwith to send written notice to the relator of his determination upon the application of the relator for a revision and readjustment of the account against…

<p>Corporation tarn on a domestic ferry company — “ capital stock” refers to share stock and “ capital” to the property of the corporation—real estate, not used in its business, and city bonds are not “employed within this State” — method of computing the tax.</p> <p>Section 182 of the Tax Law (Laws of 1896, chap. 908), which provides that domestic corporations declaring a dividend of less than six per cent must pay a franchise tax “upon such portion of the capital stock at par as the amount of capital employed within this State hears to the entire capital of the corporation,’» uses the words “ capital stock ” as referring to share stock, and the word “ capital ” as referring to property of the corporation contributed by its shareholders ■ or otherwise obtained by it to the extent required by its charter.</p> <p>■Money invested by a domestic corporation in real estate located in the borough of Brooklyn, not used by 1he corporation in its business or in any way connected therewith, and upon which it pays a tax for general and local purposes, and money invested by it in non-taxable bonds of the former city of Brooklyn, the rentals ol' the house Und the interest on the bonds being Used to increase the corporation’s annual income, are not part of its capital “ employed within this State,” as that phrase is used in section 183 of the Tax Law, which refers only to capital actively employed in the State and not to that merely invested. .</p> <p>The corporation in question had a capital stock of $3,000,000. The gro¿s assets of the corporation were $3,341,361. Its indebtedness amounted to $3,300,000, ■ and $330,000 of its assets did not constitute capital employed within the State . of New York,'thus making the amount of its capital employed within- the State $831,361. The average price at which the stock of the company sold during the year was sixty-three and one-half.</p> <p>Meld, that as the capital employed in the State of New York was .7887-]- of the ' 'entire capital of the corporation, the tax must be computed on a basis of .78874-of the entire capital stock at par, amounting to-§3,366,150, calculated at sixty-three and one-half, the average price at which the stock sold during the year, thus making the'amount on which the tax should be computed $1,503,505. .</p>

<p>Gift of personal property by an invalid to his physician and secretary, reserving the income to himself— held not to be taxable under the Transfer Tax Act — an execu- ■ tor is a person aggrieved by an order fixing the tax and may appeal therefrom.</p> <p>An invalid, who employed a physician and surgeon as his secretary and medical adviser, about two years before his death, in pursuance of a promise made to. the secretary and medical adviser when he accepted the employment, which promise had not been consummated because of the annoyance which might grow out of the publicity of the transaction, gave to such secretary and medical adviser securities of the par value of over $40,000, upon the understanding that he (the invalid) should receive the net income thereof during his life. Some months later, upon hearing a rumor that an application would be made for the appointment of a committee of his person and estate, the invalid transferred certain other securities to the secretary and medical adviser, reserving to himself the right to use the net income of such securities during his life, and also to give a portion of such securities to a third person. All of the securities included in the two gifts were delivered to the donee at the time such gifts were made, and remained in his undisputed possession and control until the death of the invalid.</p> <p>Held, that as there was no evidence that the gifts were made in contemplation of death, or for the purpose of evading payment of the tax, or were intended to take effect in enjoyment at or after the death of the invalid, they were not subject to the transfer tax.</p> <p>An executor who, by section 230 of the Tax Law (Laws of 1896, chap. 908), is made personally liable for the payment of the transfer tax is a person aggrieved by an order fixing the amount of the tax, and is entitled to appeal from such order.</p>

Appeal by Bartlett B. Grippen, as county treasurer of the county of Saratoga, from an order and decree of the Surrogate’s Court of Saratoga county, entered in said Surrogate’s Court on the 23d day of July, 1901, affirming so much of the order and decree entered in said court on the 27th day of May, 1901, as purports to fix, determine and assess the tax upon the property therein appraised and over which Clarence A. Walworth, deceased, had exercised a power of appointment…

Appeal by the defendants, Joseph A. Farrell and another, from a judgment of the County,Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of April, 1901, affirming upon an appeal a judgment of the City Court of Albany in favor of the plaintiff.

Appeal by the defendant, Frank P. Elliott, .from a judgment of the County Court of Chenango county in favor of the plaintiff, rendered on the 8th day of March, 1901, convicting him of the crime of rape in the second degree. This is the second trial and the second conviction of the defendant.

<p> Assumption-of a mortgage by a grantee -^-its payment and discharge of record by the grantor does not entitle him to sue the grantee—whether such a covenant in a contract of sale is collateral or merged in the deed. </p> <p>Where the grantee in.a deed assumes and agrees - to pay a mortgage,' subject to which the conveyance is made, the land iS the primary fund for the payment of the mortgage debt, and as between the .grantor and ¡the grantee the liability of the latter is that of indemnitor or surety only. If, therefore, the'grantor pays the mortgage debt and procures the-mortgage to be discharged of record without first requiring the mortgagee to- resort to the land, lie cannot maintain an action against the grantee to recover the amount so expended by him.</p> <p>Quaere,, whether a covenant contained in a contract for the sale of land, by which the vendee agrees to assume the payment of a mortgage subject to which the conveyance was made, is a collateral covenant which is not extinguished" by, ñor merged in, a deed executed pursuant to the contract, and which recites that the conveyance was made subject-to the mortgage, but contains no assump- . tion clause. .</p>

<p> Indictment for grand larceny—when it sufficiently charges that the party actually stealing the money acted as the agent of the others —false representations to. an owner of a dwelling, that the adjoining lots were owned by the person making them are a basis for an indictment. </p> <p>An indictment charging the commission of the crime of grand larceny, which, after alleging that the crime was the result of a conspiracy to. which the defendant, Wesley Wheeler, and one James A. Harris and others were parties, sets forth that the actual stealing was done by Harris and the manner in which such stealing was accomplished, and concludes with the allegation “ that the words, pretenses,, statements of the said James A. Harris were done and spoken at the instance and request of the .said Wesley Wheeler,” sufficiently charges that Harris in receiving the stolen money acted as the agent of the defendant.</p> <p>Where the owner of a residence in the vicinity of some vacant lots is induced to purchase such lots by reason of false representations, made to him by a person who pretended to own the lots, that he intended to erect a soap factory thereon, the fact that after the owner of the residence had agreed to make the purchase, but before he had actually paid the purchase price, the person making the false representations acquired the legal title to the lots, does not prevent such representations from being used as the basis of an indictment for larceny.</p>

Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from an order of the Supreme Court, made at the. Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of June, 1901, granting the plaintiff’s motion for the discovéry of certain articles of personal property in the possession of the defendant.

Appeal by the defendant, the United Traction Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 25th day of September, 1901, denying the defendant’s motion to change the place of trial of the action from the county of Erie to the county of Albany.

. Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 28th day of January, 1901, upon the verdict of a jury for $2,800, and also from an order entered in said clerk’s office on the 11th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal- by the defendant, James 'D. Casey, as commissioner of public safety of the city of Rochester, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 20th day of May, 1901, denying the defendant’s'motion to quash an alternative writ of mandamus theretofore issued in the action, and directing the issuance of a peremptory writ of mandamus.

<p>Appeal by the defendant, John Powers, 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 30th day of March, 1901, upon an order of said court affirming upon an appeal a judgment in favor of the .plaintiff rendered' by the Municipal Court of the city of Syracuse.</p> <p>' The action was commenced in the Municipal Court of the city of Syracuse on the 10th day of November, 1900, to recover the value of a certain mantel, gas grate and fixtures which it is alleged were the property of the plaintiff, and which, as alleged, the defendant converted to his own use. The action was tried before the Municipal Court without a jury, and judgment was rendered in favor of the plaintiff for forty dollars and costs. An appeal was taken from such judgment to the County Court, and the judgment of the Municipal Court was in all things affirmed, with costs. From such judgment of affirmance this appeal is taken.</p>

Appeal by the plaintiff, Lou P. Moore, 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 20th day of December, 1900, upon a nonsuit granted by the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 20th day of December, 1900, denying the plaintiff’s motion for a, new trial made upon the minutes.

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Oswego, entered' in said Surrogate’s Court on the 3d day of December, 1900, assessing the transfer tax upon the estate of John Dingman, deceased, and holding.and determining that the personal property in the State of Iowa which was a part of such estate and was paid to George W, Dingman, a brother of the deceased, in the State of Idwa, who at the time was a resident of…

<p>Office of a writ of prohibition — not issued to restrain the mayor of "Utica from, considering charges against members of its board of police and fire commissioners — not issued where certiorari lies — otherwise as to one whose term of office has expired.</p> <p>The sole office of a writ of prohibition is to prevent a tribunal, having judicial power, from taking cognizance of matters not within its jurisdiction, or from exceeding its jurisdiction in regard to such matters, and the question of jurisdiction is the only question which can properly be considered upon an application for such writ.</p> <p>The jurisdiction to hear, try and determine charges of misconduct against mem-_ bei-s of the board of police and fire commissioners of the city of Utica, conferred on the mayor of that city by section 3 of chapter 314 of the Laws of 1874, is not affected by the fact that the charges were preferred by the mayor, and for this reason, as well as for- the further reason that the action of the mayor-may be reviewed by certiorari, the Supreme Court has no jurisdiction to issue a writ of prohibition to restrain the mayor from proceeding, to investigate such ■ charges.</p> <p>The mayor has no jurisdiction to hear, try and determine charges preferred against a police and fire commissioner whose term of office has expired, and a writ of prohibition may properly be issued to prevent him from doing so.</p>

Appeal by the defendant, Frank Albright, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of January, 1901, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 7th day of February, 1901,. denying the defendant’s motion for a new trial made upon the minutés. The action was commenced on the 6th day of July, 1900, to recover damages alleged to…

Appeal by the plaintiff, James B. Warren, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 9th day of February, 1900, upon the verdict of a jury dismissing the complaint upon the merit's, and also from an order bearing date the 2d day of October, 1899, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Supreme Court of the Independent Order of Foresters,, 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 1st day of May, 1901,. upon the decision of the court rendered after a trial at the Erie Trial Term, a jury, having been waived, directing the reinstatement of the plaintiff to membership in the defendant company.</p> <p>The proceedings were instituted by an alternative writ of mam damns, founded upon the affidavit of the relator, setting forth that he was a member of the defendant and had been improperly suspended therefrom, and asking reinstatement to all his rights and privileges as a member in good standing in said order. The defendant made -return to said writ, traversing some" of the facts contained in the affidavit of the relator, and a trial was had, resulting in the judgment aforesaid. The facts were stipulated on the trial.</p>

<p>A gift to trustees to found a charitable use is not exempt from the transfer tax — the fact that the execution of the trust devolves upon the Supreme Oourt does not change the rule.</p> <p>A bequest to trustees in trust to found, erect and maintain “a home for those who by misfortune have become incapable of providing for themselves, and those who have slender means of support,” is subject to a transfer tax, as subdivision 7 of section 4 of the Tax Law (Laws of 1896, chap. 908), providing that the property of a “ corporation or association ” organized exclusively for charitable or benevolent purposes shall bo exempt from taxation, and section 220 of the Tax Law, imposing a transfer tax upon property passing “to persons or corporations not exempt by law from taxation,” do not include a gift for charitable purposes made to trustees.</p> <p>The fact that upon the expiration of the two lives in being, during which the trustees named in the will were empowered to hold the trust estate, the execution of the trust would, under chapter 701 of the Laws of 1893, devolve upon the Supreme Court, does not operate to exempt the bequest or the part thereof which would pass to the Supreme Court, from the transfer tax.</p> <p>Semble, that it has been the policy of the Legislature to limit exemptions from taxation of gifts for charitable uses to cases where gifts are made to corporations.</p>

Motion by the defendants, Adam Engel and another,'for a new trial upon a ease containing exceptions, ordered to be.heard at the Appellate 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 Erie Trial Term. John A. Schappert and Adam Engel were the only defendants who interposed answers.

Appeal by the plaintiff, Mary Osborne, from an order of the 'Supreme Court, made at the Genesee Special Term and entered in the office of the clerk of the county of Genesee on the 5th day of March, 1901, granting costs in the above-entitled action in favor of the defendant and against the plaintiff and directing the clerk of Genesee county to retax the disbursements allowed by him to the. plaintiff by ■ disallowing the same, and that the judgment theretofore entered in the…

Appeal by the defendant, Charles Bird, from a 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 March, 1901, upon the decision of the court, rendered after a trial at the Monroe Special Term, decreeing that the defendant reconvey to the plaintiff the premises described in the complaint in compliance with the terms of the decision.

<p>Referee — right to his fees on making his report — each party is liable therefor.</p> <p>A reieree appointed to hear, try and determine the issues in an action may decline to deliver his report until he has received payment of his fees, or he may deliver it without receiving such fees and resort to an action at law to obtain what he has earned.</p> <p>Each of the parties to the action, including those who protested against the ordering of a reference, is liable for the feus of the referee regardless of the fact that the judgment entered upon his report was reversed by the .Appellate Division.</p>

Appeal by the defendants, Buffalo Wheel Company and Joseph P. Devine, as general assignee for the benefit of the creditors of Buffalo Wheel 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 Ith day of November, 1900, upon the decision of the court rendered after a trial at the Erie Special Term.

<p>Assessment for a local improvement in city of Little Falls—notice of the improvement signed by the city engineer for the city clerk—publication of notice before filing map—a regularly adjourned meeting is a “ regular meeting ”—an owner is concluded, as to the city’s authority to order work, by his petition—his acguies- ' cence in the doing of the wot'k estops him — the right to sue to cancel an assessment being conditional. on an injunction being obtained—power of the Legislature to legalize an assessment.</p> <p>An assessment for a local improvement in the city of Little Falls is not invalid because the notice of the proposed improvement was not prepared or signed by the city clerk as required by section 71 of the charter (Laws of 1895, chap. 565, as amd. by Laws of 1898, chap. 199), but was prepared by the city engineer and was signed by him in the city clerk’s name, where it does not appear that the city clerk made any objection to the city engineer’s assumption of authority or that any person was injured thereby.</p> <p>Notwithstanding that section 71 of the charter provides that notice of the improvement shall be published upon the filing by the city engineer of the maps, profile and estimate, the publication of the notice is not rendered defective by the fact that it was dated May fifth, and was published in one of the papers on that day, while the maps, profile and estimate were not filed until May sixth, where it appears that the notice was published a sufficient number of times, after the maps, profile and estimate had been filed, to comply with the law.</p> <p>.The provision of section 71 of the charter that' the time fixed in the notice for the filing of objections to the improvement should not expire before the next “ regular meeting ” of the common council, does not prevent the time fixed for the filing of objections from being limited to the holding of a regularly adjourned meeting of the common council, where it appears that the charter permitted the common council to fix the time of its meetings, and that the meeting in question was regular to the extent that any ordinary business could be transacted at it, as distinguished from a special meeting at which only the spécific business could be done for which the meeting was called.</p> <p>An owner of property located in the city of Little Falls who signs a petition to the common council requesting that the street upon which his property abuts be graded and otherwise improved, and states that the cost of the improvement will be borne by the abutting property owners and not by the general public, will not be heard to claim .that uúder the charter the expense of grading a street is not payable wholly or partly by local assessment.</p> <p>Where at the time the petition for the improvement is presented water and sewer pipes have not been laid in the street which is to ¡be improved, and the city authorities order them to be laid upon the theory that the property owners have neglected to lay such pipes within the meaning of section 101 of the charter, - which provides that abutting property can be charged with the expense of laying water and sewer pipes only in case of a refusal or neglect-by the property owners themselves to lay such pipes, and the property owners stand by and permit the pipes to be laid, they will not to be heard to claim that this part of the improvement was unauthorized.</p> <p>Semble, that section 83 of the charter, as amended by chapter 199 of the Laws of 1898 and by chapter 289 of the .Laws of 1899, which provides: “ No action of proceeding to'set aside, cancel or annul any assessment made for local improvement under any of the provisions of this act shall be maintained by any person unless such action or proceeding shall have been commenced within thirty days after the delivery of the assessment roll and warrant -for such local improvement to the city treasurer, and notice by him in the official newspapers of tíre city of the receipt thereof, and unless Within said thirty days an injunction shall have been procured by such person from a court of competent jurisdiction, restraining the common council from issuing the assessment bonds hereinbefore -provided to be issued for such assessment,” is-constitutional. Quaere, as to the constitutionality of that provision thereof requiring, the plaintiff to procure an injunction.restraining the issue of assessment.bonds.</p> <p>Statutes purporting to legalize an assessment for a local improvement, passed after the entry of a judgment declaring the assessment invalid, are operative ■ so far as they relate to those acts which the Legislature might have dispensed with or ordered done before the proceedings were instituted.</p>

<p>Appeal by the plaintiff, Edward R. Satterlee, from a judgment of the Supreme Court in favor of the defendants, Alice L. Kobbe and others, entered in the office of the clerk of the county of Jefferson on the 25th day of. Hay, 1901, upon the dismissal of the complaint by direction of thé court after a trial at the Jefferson Trial Term.</p>

Appeal by the plaintiff, Simeon Sweet, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 5th day of June, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Wayne Trial Term, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

Appeal by. the petitioner, Martin Búllan, from a decree and order of the Surrogate’s Court of the county óf Monroe, entered in said Surrogate’s Court on the Util day of April, 1901, denying his motion for the issuance of a commission to examine witnesses and dismissing a proceeding to compel á judicial settlernent of the accounts of Miles T. O’Reilly, as administrator, etc., of Mary Búllandeceased.

<p>Extent of the duty of a master to repair machinery—injury from, the bursting of a water gauge on a steamboat boiler— t]ie engineer acts in his capacity as a servant in directing a fireman to replace it.</p> <p>The rule that the duty to repair machinery is one incumbent upon the master, does not apply to such defects in machinery as may arise in the daily use thereof, and which are not of a permanent character and. do not require the help of skilled machinists to repair them, but may be and are usually remedied by the workmen with materials supplied by the master.</p> <p>Where a water gauge attached to a steamboat boiler is fitted with a glass which is liable to ■ break at any time, and the operation of replacing the broken .glass can be readily performed by turning off the valves at either end of the gauge and thus shutting off the water, and then taking out the defective glass and putting in a new One from a supply kept on hand, the duty of replacing the defective glass is incumbent upon the engineer in his character as a servant.</p> <p>The act of the engineer, upon discovering a crack in the glass, in directing the fireman to turn the valves at either end of the gauge and shut off the water, is that of a fellow-servant, and if the fireman while complying with such directions is injured by the explosion of the glass, he cannot maintain an action against the owner of the steamboat therefor.</p> <p>The engineer, although he had power to discharge the fireman for disobedience of orders, cannot be said to represent the owner of the steamboat where it appears that both he and the fireman are under the general direction of the master of the boat.</p>

Appeal by the defendants, Valentine F. Whitmore and others, from an order of the Supreme Court; made ¡at, the Monroe Trial Term and entered in the office of the clerk of the county of Mon-. roe on the 27th day of June, 1901, denying the defendant’s motion to set aside a verdict on an assessment of damages upon the ground of want of power.,

<p>Appeal by the defendant, The Grand Lodge of the Ancient Order of United Workmen of the State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 14th day of May, 1901, upon the decision of the court rendered after a trial at the Monroe Trial Term, the jury having been waived by consent.</p>

Appeal by the defendant, William Sherlock, 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 '6th day of March, 1901, affirming upon appeal a judgment rendered by the Municipal Court .of the city of Syracuse.

<p>Appeal by the plaintiff, The Oswego County Savings Bank, 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 13th day •of July, 1899, upon the decision of the court rendered after a trial •at the Onondaga Trial Term, a jury having been waived.</p> <p>Chapter 298 of the Laws of 1871, which is referred to m the •opinion, provided “ any town, village or city in any county, through or near which said railroad or its branches may be located, except such counties, towns or cities as are excepted from the provisions •of the general bonding law, may aid or facilitate the construction •of the said New York and Oswego Midland railroad and its branches and extensions, by the issue and sale of its bonds in the manner provided for in the act entitled, ‘ An act to facilitate the construction of the New York and Oswego Midland railroad, and to authorize towns to subscribe to the capital stock thereof,’ passed April fifth, eighteen hundred -and sixty-six, and the acts amendatory of and supplementary thereto.”</p>

<p>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 Oneida on the 20th clay of March, 1901, upon the verdict of a jury.for $4,900, and also from an order entered in said clerk’s office •on the 20th day of March, 1901, denying the defendant’s motion íor a new trial made upon the minutes.</p>

<p>Appeals by E. Lucintha Penfield and another, as executors, etc., of Thomas D. Penfield, deceased, and by the petitioner, Elias E.. Spencer, as administrator with the will annexed of Abigail Smith,, deceased, from so much of a decree of the Surrogate’s Court of the-county of Oneida, entered in said Surrogate’s Court on the 7th day of April, 1900, as directs the payment of the sum of $1,097.74 recovery in costs against the said estate in favor of the petitioner.</p> <p>On the 26th day of October, 1864, one Reuben Smith, a resident of the town of Camden, Oneida county, FT. Y., departed this life leaving a last will and testament .which was duly admitted to probate upon the sixth day of December following. The will nominated and appointed Thomas D. Penfield and Abigail Smith, the widow of the testator, the executors thereof, but by an arrangement between them Penfield became the sole acting executor in the settlement of the estate.</p> <p>Under the provisions of the will, the widow, Abigail Smith, was to receive the life use . and income of the testator’s property, and after the payment of certain specific legacies the remainder was to go to Polly Wetmore and Rebecca Morse, daughters of the testator.</p> <p>Rebecca Morse died prior to the commencement of this proceeding, leaving a last will and testament in and by which her son, Edward Morse, was duly appointed executor thereof.</p> <p>In June, 1865, the other daughter, Polly Wet-more, duly transferred and assigned to Thomas D. Penfield all her interest in the estate tif her father, Reuben Smith.</p> <p>The widow, Abigail Smith, died in 1875, leaving a last will and testament in and by which she gave all of her property to her daughter Patience Spencer, and the petitioner herein was in due bourse of time appointed administrator with the will annexed of Mrs. Smith’s estate.</p> <p>. Reuben Smith left, among other -personal assets,, thirty-five shares of the capital stock of the Rome, Watertown and Ogdensburg Railroad Company, of the par Value of $100. per, share. After his death, and on or about the 1st day of July, 1869, a stock' dividend was declared by the railroad company upon the basis that every, owner of stock should be entitled to receive one share of the par value of $100 for every five shares owned by him, upon payment to the company of $50 per share in cash; and as a consequence the estate of Reuben Smith became entitled under these terms to seven additional shares of the stock. The widow, Abigail Smith, declined to take advantage of the offer of the railroad company, whereupon* her co-executor, Penfield, accepted the seven shares, paying therefor in cash the sum of $350,- which money was furnished by him individually. Thereafter, and on the 5th day of February, 1873, * another stock' dividend was declared upon these seven shares at the rate of $5 per share, and thereafter, and on the 13th day of March, 1881, an additional stock dividend was declared of twenty per cent, or $140. Regular cash dividends were likewise declared, which were received by Penfield.</p> <p>After the death of Abigail Smith, and in the year 1878, the surviving executor, Penfield, rendered an account of his proceed- ■ ings in the Surrogate’s Court of Oneida county. Upon such accounting a hearing was had before an auditor who took and stated the account of the executor, and in his report to the Surrogate’s Court stated in respect of the amount found due the estate, that “ the same includes all the property which has come into his hands, as executor of Reuben Smith, except seven shares of dividended railroad stock of Rome, Watertown R. R. Co. (and not included in any account heretofore mentioned), and which stock is of but little value and the title to the same is in dispute between the residuary legatees of Reuben Smith, and the heirs of his widow, and which seven shares said executor still retains and should retain for the present.”</p> <p>This report was subsequently confirmed by a decree of the Surrogate’s Court, which decree followed the language of the auditor's report, save -that it directed that the seven shares of stock should remain in the hands of Penfield “ until said disputéis settled.” No further proceedings were taken in regard to this stock until February 10, 1882, when Penfield sold the same, together with some stock of his own, through the First National Bank of Camden, for nineteen and seven-eighths cents per share. It is conceded that in making this sale Penfield acted in good faith and obtained for the stock all that it was worth at that time.</p> <p>In 1897 this proceeding was commenced by the petitioner Elias F. Spencer, as administrator with the will annexed of Abigail Smith, to compel a further accounting by Thomas D. Penfield, the surviving executor of Reuben Smith, of the assets of the estate remaining in his hands, and particularly of the seven shares of stock of the Rome, Watertown and Ogdensburg Railroad Company, alleged in the petition to have been income arising from the estate of Reuben Smith, and -that as such it belonged to the estate-of Abigail ¡Smith. Edward Morse, as executor of Rebecca Morse, was made a party to this proceeding, and appeared therein by attorney, claiming that such stock was principal, and that as such one-half thereof belonged to his testatrix, Rebecca -Morse, as. one of the residuary legatees of Reuben Smith, deceased. Thomas D. Penfield answered the petitión herein, and among other defenses thereto claimed that by an arrangement with Abigail Smith, his co-executor, he had paid for? the stock in question with his own money, and. that in consequence thereof the same belonged to him ; that in any event he should be allowed the sum of $350, paid by him for such stock, and that the claims of the petitioner and of Edward Morse to such stock, if they ever had any, were barred by the Statute of Limitations. The issues thus joined were tried before the surrogate of Oneida county, all the parties appearing and taking part in such trial. During the pendency of the trial Penfield died, leaving a last will and testament, of which the appellants, É. Lueintha Penfield and I. Stoddard Pen-field, were duly appointed executors, and in due course of timetliey were substituted as parties to this proceeding in the place of their testator. Subsequently the surrogate made certain findings of fact, among which was one to the effect fhat one-half of the seven shares of stock was principal and the other half income; that the» claim of Edward Morse, as executor of Rebecca Morse, to that, portion of the seven, shares so found to be principal was barred by the Statute of Limitations, and that the representatives of Penfield" should account for and pay over to the petitioner, as representative-of Abigail Smith, the value of the one-lialf found to be income,, together with the dividends received on the same since May 1-, 1876,, together with, interest thereón and the costs and expenses of the» proceeding.</p> <p>The executors of Penfield in due course of time filed exceptions to certain of the findings of the surrogate,, as did also the petitioner in the. proceeding, who claimed that.no part of such stock should be treated as principal; and from the decree which was subsequently entered upon the findings of the surrogate these appeals are brought.</p>

Appeal by the plaintiff, Leonard Wiedman, from a judgment of the ■Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 3d day of August, 1900,, upon the dismissal of the complaint by direction of the court after a trial at the Niagara Trial Term, and also - from an order entered in said clerk’s office on the 3d day of August, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, George W. Weyand, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Erie on the 9th day of November, 1900, upon the verdict of a jury,' and also from an order entered in said clerk’s office on the' 19th day of October, 1900, denying the defendant’s motion.for a new trial made upon the minutes.

Appeal by the defendants, George Bartholomew 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 Chautauqua on the 18th day of May, 1900, 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 4th day of April, 1901, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Wilbur C. Brown, for himself and all other bondholders of The Lima Northern Railway Company and of The Detroit and Lima Northern Railway Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 5th day of July, 1901, granting a motion made by certain defendants to change the place of trial of the action from the county of Erie to the county of New York, upon the…

<p>District attorney — his statements to the jury, that the accused lived inaloeality inhabited by criminals,.that his'associate was an old offender and that the sister of one of his witnesses was disreputable constitute error — the jury must take previous good character into account — burden on an appeal as to est.dblishing error and its harmlessness.</p> <p>Upon the trial of an indictment charging the defendant and one Underwood with the crime of burglary and grand larceny, it is error to permit the district attorney to impress upon the jury that the defendant lived in a locality inhabited by criminals; that upon the night when the offense was committed he was in the company of Underwood, and that, although the defendant himself had never been convicted of crime, Underwood was an old offender and that the sister of one of the defendant’s witnesses was leading á disreputable life.</p> <p>The defendant is entitled to have, the court charge that,, if they reached the conclusion that his previous character had' been good, it was their duty to take . that into account in forming a détermination as to his guilt, and a charge? that they might take such previous good character into account is not sufficiently favorable to him.</p> <p>Upon an appeal from a judgment of conviction the burden rests upon the appellant to show that errors have been committed, and after he has shown the commission of errors the burden is upon the respondent to show that such errors were harmless and could by no possibility have pre j udiced the appellant.</p>

Appeal by the plaintiffs, Fred Hinges and Owen Hinges, 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 9th day of April, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining the defendant’s demurrer to the plaintiffs’ complaint.

Appeal by the plaintiff, Warner M. Sweet, from, a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Allegany on the 19th day of September, 1900, upon the report of a referee dismissing the complaint upon the merits.

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 14th day of February, 1901, upon the verdict of a jury for $850. ' , This action was commenced on the 30th day of October, 1899, to recover damages alleged to have been sustained by . the plaintiff through the negligence of the defendant.

Appeal by the defendant, the New York, Ontario and Western 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 Oswego on the 19th day of October, 1900, upon the verdict of a jury for $400, and also from an order bearing date the 11th day of October, 1900, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John F. Leary and Robert E. Malone, composing the firm of Leary & Malone, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Herkimer on the 26th day of June, 1901, granting the defendant’s motion and appointing a referee to hear, try and determine the issues of the action.

<p>Appeal by the defendant, the. Lehigh Valley Eailroad Company, from an order of the Supreme Court, made at the Monroe' Trial Term and entered in the office of the clerk of the county of Monroe on the 24th day of September, 1901,. denying the defendant’s motion to set aside the verdict of a jury rendered on an assessment of damages in the action, and for a new assessment.</p> <p>This action was brought to recover damages for injuries caused by the defendant. A verdict was directed in favor of the defendant at the close of all the evidence and the plaintiff’s exceptions were ordered heard in the first instance at the Appellate Division. The plaintiff’s exceptions were sustained and a'new trial ordered by this court.- The defendant appealed from said, order of the Appellate Division to the Court of Appeals and stipulated that if .the' order .was affirmed judgment absolute should be rendered, against, the said appellant. The order was affirméd in the Court of Appeals and an assessment of damages was thereupon had at a Trial Term of the Supreme Court with a jury, resulting in a verdict for the plaintiff of $10,000. A motion was then made at said term to set aside the verdict and inquest on the stenographer’s minutes, on the ground that the verdict was excessive and that errors was committed during the trial.</p>

<p> New trial granted in a criminal case where a jure»’ concealed the fact that he had expressed to several persons his desire to serve on the jury and to punish the prisoner. </p> <p>After the jury had been drawn upon the trial of an indictment, charging the defendant with the crime of manslaughter in unintentionally causing the death of a man by exploding dynamite under a cottage, the defendant’s attorney received some telephone messages and an anonjmous letter stating that one of the jurors before coming to court had stated that he would be on the jury and would teach the defendant not to use any more dynamite. The juror whose integrity was thus impeached had stated during his examination concerning his qualification to sit that he had no opinion about the case, had not talked, with any one about it; that lie had heard .it discussed, that is, had just heard it spoken of, but had heard no opinion expressed about it; that since he came into court he heard that the cáse was something about dynamite. -</p> <p>The next day after the case had been opened by the district attorney, a confer-encé was had at which the trial judge, the district attorney, the defendant’s counsel and the juror in question were present. The juror, when informed of the charge against him, earnestly and emphatically denied the same and stated distinctly that he had no preconceived opinions about the case and that he did not make the remark imputed to him. -Relying, upon the assurances of the juror, the latter was permitted to serve and participated in rendering A verdict of guilty against the defendant.</p> <p>After the trial a motion for a new trial was made based upon five affidavits made by apparently disinterested persons, stating that the juror in question had expressed to several persons his desire to serve on that particular jury and his intention to punish the defendant. The statements in these affidavits were contradicted only by the juror in question. The trial judge denied the motion.</p> <p>Held, that the conclusion reached "by the trial judge upon the facts could not be sustained;</p> <p>That if the conduct of the juror whose integrity was impeached did not constitute “misconduct" of the jury, for which a new trial might be granted under subdivision 3 of section 465 of the Code of Criminar Procedure, the court had inherent power, outside the statute, to grant such new trial for the purpose of securing to the defendant his constitutional right to a trial- by an impartial jury.</p>

Appeal by the plaintiff, John G-. Stackhouse, as trustee in bankruptcy of the estate of Otis L. Humphrey and Seward W. Hold-ridge, bankrupts, from that portion of 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 16th day of March, 1901, upon the decision of the court rendered after a trial at the Monroe Special Term which adjudges the assignment of certain accounts to be valid..

Appeal by the plaintiff, Edward S. Campbell, as ancillary receiver of the Middlesex County Bank, 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 8th day of April, 1901,. upon the decision of the court rendered after a trial at the Monroe Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the petitioners, the Grade Crossing Commissioners of the city of Buffalo, from that part of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 29th day of December, 1900, refusing to appoint commissioners to ascertain the damages to two parcels of property, described in the petition herein and identified as Nos: 76 and 77, belonging to the city of Buffalo.

Appeal by the plaintiff, Mab Heffron, an infant, by Fannie Heffron, her guardian ad litem, from a judgment of the County Court of Wayne county in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 27th day of May, 1901, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury, upon the ground of lack of jurisdiction of the subject-matter of the action,' and also from an order- entered in…

Appeal by Edmund L. Maguer, as receiver of the defendant, the Buffalo Amusement Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 3d day of September, 1901, modifying an order theretofore granted in a proceeding for the dissolution of the Buffalo Amusement Company, a domestic corporation.

<p>Mutual benefit association — an amendment of its by-laws .making void the certificates whose holders commit suicide-held not to apply to then existing certificates.</p> <p>An amendment to the by-laws of a mutual benefit association, providing that the benefit certificate issued to a member shall become void in case he shall die by suicide, does not apply to certificates in force at the time of the amendment, although such certificates contain an agreement on the part of the member to comply with all laws and regulations of the association which are then in force or which may thereafter be enacted, where it does not appear from any express provision in the amendment, or from any resolution or action of the association, that it was intended to apply to such certificates, or that notice thereof was given to such members or their beneficiaries, and it does appear, that, at the same time the amendment relating to suicide was passed, ah amendment increasing the monthly assessments was also passed, and that, the association construed the latter amendment to apply solely to certificates thereafter issued.</p> <p>Semble, .that the association might, if it so desired, have made the amendment relative to suicide applicable to certificates issued prior to its enactment.</p>

Appeal by the relator, William E. Daly, from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1901, as resettled and amended by an order entered in said clerk’s office on the 4th day of June, 1901, nune pro tninc- as of the 10th day of May, 1901, dismissing an alternative writ of mandamus, and also from the judgment entered thereon in said clerk’s office on the 24th…

<p>■Certificate of a city engineer — 1low far conclusive on contractors — submission of a case to the jury on the theory that the defendant was negligent, when the complaint alleges that the engineer’s certificate was false — a conjectural verdict, set aside — insufficient proof of damage.</p> <p>Where a contract for the regulating, grading and paving of a street in the city, of New York contains a provision that the contractors shall be bound and concluded by the final certificate of the engineer, such final certificate is conclusive upon the contractors in the absence of proof of corruption, bad faith or misconduct on the part of the engineer or of such a gross mistake therein as indicates the existence of fraud or bad faith.</p> <p>Where the contractors bring an action against the city to recover for materials furnished in excess of the amount stated in the certificate to have been furnished by them, basing their right to recover upon the ground that the certificate is false and untrue, and was given in bad faith and under a misconstruction ■of the contract., it is error for the court .to submit the case to tlie jury over the objection of the defendant on the theory that the contractors, in consequence of the negligence of the city, had been obliged to perform work in addition to that required by the contract.</p> <p>Where the contractors claim to be entitled to compensation for 15,000 cubic yards of additional filling at thirty cents a cubic yard, which they claim to have furnished in place of a quantity of filling which had been washed awaj>- by reason of leaks in the Croton water main, and it appears that there were three ■separate causes for the loss of material, requiring the use of the additional filling, namely, the action of the tides, the sinkage or shrinkage of the material and the leaks in the Croton water main, and it does not appear what amount of ' loss of material could be ascribed to any of the three causes, a verdict of §1,750, which would pay for about 5,800 cubic yards of additional filling at thirty cents a cubic yard, will be set aside as conjectural.</p> <p>A verdict of §4,500 in favor of the contractors for the expense of rehandling filling material, in consequence of the erection by a corporation with the con- ’ sent of the city of telephone and’telegraph poles upon the line of work, cannot be sustained where the only evidence as to the amount of material rehandled was a statement by one of the contractors in the following language: “ 15,000 yards, I should say.”</p>

<p>Appeal by Thomas F. Baldwin 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 30th day of September, 1901, adjudging him guilty of a. contempt of court.</p>

Motion by the plaintiffs, Katherine O’Connell and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first ■ instancej upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, The Edison Electric Illuminating Com- . pany of New York, from a judgment of the Supreme Court in favor of the plaintiffs^ entered in the office of the clerk of the county. of New York on the 15th day of February, 1901, upon the decision of the court rendered after a trial at the New York Special Term. ■

Appeal by the plaintiff, the J. R. Alsing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 7th day of March, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of March, 1900, denying the plaintiff’s motion for a new trial made upon the minutes. This appeal was transferred from the second department to the first department.

Appeal by William W. Heroy, as sole surviving partner of the firm of Heroy & Marrenner, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 31st day of July, 1901, granting leave to William IL Arnoux to intervene in the proceeding and to file his answer or objections.

<p>Appeal by the defendants, Edwin Butterworth and others, doing business under the firm name and style of Edwin Butterworth & 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 7th day of October, 1901, denying the defendants’ motion to compel the plaintiff to make the second cause of action set forth in the complaint more definite and certain.</p>

<p>Negligence — where death results instantaneously to an infant, its father cannot recover damages for loss of services.</p> <p>The right of the father of an infant who has been negligently killed, to recover,, from the person whose negligence caused the infant’s death, damages, for loss-of the latter’s services, is limited to the interval between the injury to the infant .and Ms death. Consequently where the death of the infant was instantaneous the father is not entitled .to recover damages for loss of services.</p>

Appeal by the defendants, Agnes K. Murphy Mulligan and another, from a judgment of the Supreme Court in favor of the plaintiff's, entered in the office of the clerk of the county of New York on the 9th day of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of March, 1901, awarding to the plaintiffs double damages and directing entry of judgment in their favor, and also from an order bearing date the 22d day of…

Application by the Kingsbridge Railway Company for the appointment of commissioners to determine whether a railway should be constructed in certain avenues and streets in- the city of' New York, notwithstanding the. refusal of the owners of property abutting thereon to consent thereto*

<p>Appeal by the defendant, Janet T. Malcolm, as executrix, etc., of James F. Malcolm, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the-office of the clerk of the county of Hew York on the 6th day of July, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s 'office on the 2d .day of August, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This cause of action was assigned to the plaintiff by one Charlotte F„ Tringham.</p>

Appeal by the plaintiff; Thomas N. Rhinelander, as trustee of the estate of John V.* Schaefer Company, bankrupt, 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 óf New York on the-4th day of June, 1901, directing the plaintiff to serve a bill of particulars upon the attorneys for the defendant -Rudolph M. Haan.

Appeal by the plaintiff, Henry G. Gabay, from, a final judgment: of the Supreme Court in favor of the defendants, entered in the' office of the clerk of the county of New York on the 8th day of October, 1901, nunc fro fame as of the 27tli day of September,. 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the second defense set up in the defendants’ answer and dismissing the complaint on the…

Appeal by the defendant,-the Columbia Cab Company, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, Pauline Gumprecht, as administratrix, etc., of Morris Gumprecht, deceased, from an order of the Supreme Gourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of August, 1901, denying the relator’s motion' for a peremptory writ of mandamus.

<p>Appeal by the defendant, W. & J. Sloane, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Albert Lajotte and Charles R. Ruegger from an order of the Supreme Court, made at the Hew York Special'Term and entered in the office of the clerk of the county of Hew York on the 1st day of Hovember, 1901, denying their motion to modify an injunction order theretofore granted in the action and entered in said clerk’s office on the 22d day of October, 1901.

Appeal by the defendant, the Greenwich Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of May, 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 22d day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The People of the State of New York .from an order of the Court of General Sessions of the Peace in and for the city and county of New York, entered in the office of the •clerk of said court on the 30th day of August, 1901, allowing a •demurrer to an indictment and directing that the charge be resubmitted to the grand jury of the county of New York.

Appeal by the defendants, Horace Russell and another, as executors of and trustees under the last will and testament of Henry Hilton, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 18th day of October, 1901, granting the plaintiff’s motion for an open commission to take the testimony of certain named and unnamed witnesses.

Appeal by the plaintiff, Emily H. Moir, as surviving trustee of Johannah S. Seymour under a deed of trust, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of October,.1901, relieving Adolph Cohn, the purchaser at a sale of real property under a judgment of foreclosure in. the action, from completing his purchase.

Appeal by the defendant, Richard Clay Sibley, from an order of the Supreme Court, made at' the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of August, 1901, denying the defendant’s motion to modify an order granting alimony and counsel fee to the plaintiff in the action, and to vacate and set aside an order adjudging him in contempt of court.

Appeal by the plaintiff, Minnie Brass, as administratrix, etc., of August Bruss, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the plaintiff, John M. Cornell, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of March, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the plaintiff, Sanford E. Gee, from a judgment of the Supreme Court in favor- of the defendants, entered in the office of the clerk of the county of New York on the 21st day of May, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.

Appeal by the defendant, the Morning Journal Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the 'office of the clerk of the county of New York on the 16th day of March, 1901, upon the verdict of a jury for $10,000, and also from an order bearing date the 18th day of March, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Necessaries for inf ants — the obligation of an infant therefor is-not greater than that of his father—he is not bound to pay more than their value—theatre tickets are not—borrowed money to be such must be so applied. ■</p> <p>The obligation of an infant to pay for necessaries furnished to him is not greater than the obligation of his father in respect thereto; they must be strictly necessaries and in substance are limited to such articles as are requisite for the body or for the proper cultivation of the mind.</p> <p>The infant cannot be charged with more than the fair value of the necessaries furnished even though he contracted to pay more.</p> <p>Theatre tickets are not necessaries for an infant attending college.</p> <p>An infant is not liable for borrowed money unless it is shown that it was applied to his personal use for some necessity..</p>

<p>Appeal by the defendant, Dora Miesel, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day .of April, 1901, as denies said defendant’s motion to-vacate, an order theretofore entered in said clerk’s office appointing a receiver iii the. action, and also from so much thereof as directa the receiver appointed thereunder to account to himself, as the new receiver, for rents collected by him as receiver under said prior-order.</p>

<p>Appeal by the plaintiff, Jared W. Bell, from a final judgment of the Supreme Court in favor of the defendant, entered in -the office of the clerk of the county of New York on the 11th day of July, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer to the complaint, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 25tb day of May, 1901, adjudging that the complaint does hot state facts sufficient to constitute a cause of action.</p>

Appeal by the defendant, The Bee Publishing 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 17th day of July, 1901, denying the defendant’s motion to set aside the service of the summons and complaint in the action.

<p>Negligence.— a collision between a street car and a wagon presenting a question of negligence and contributory negligence — a case not to be taken from, a juey because its verdict will be set aside as against the weight of evidence.</p> <p>In an action to recover damages, for personal injuries, sustained by the plaintiff in consequence of a collision at the corner of. One Hundred and Twenty-fourth street and Lexington avenue, in the city of New York, between one of the - defendant’s north-hound street cars and a wagon driven by the plaintiff, evidence Was .given tending to show that the accident took place about four . o’clock in'the afternoon; that the plaintiff had driven down Lexington avenue on the westerly side; that his horse was walking, and when he reached a point about the middle of One Hundred and Twenty-fourth street he proceeded to guide the horse straight and not diagonally across the tracks; that at this time the plaintiff noticed that the car was about a half block away; that he did not watch the further approach of the car, but kept his attention upon the horse and the street in front; that the motorman’s view of the horse and wagon was unobstructed and that there was ample time to enable the plaintiff to clear the tracks if the car had not approached with great rapidity; that under the conditions existing at the time of the accident the car could have been stopped within ten or Alteen feet.</p> <p>Held, that the questions of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence should have been submitted to the jury,.and. that it was error for the court to direct a verdict in favor of the defendant,. '*</p> <p>Where the evidence given-on a jury trial presents an issue of fact, the court has no power-to direct a verdict for one of the parties on the theory that a verdict in- favor of the other party would be set aside as against the weight of evidence.</p>

Appeal by the plaintiff, Eugene C. Bell, doing business under-the ■name of the “ Bell Manufacturing 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 7th day ■of October, 1901, requiring the plaintiff to furnish a bill of particu:ars of his claim to the attorneys for the defendant James M. Heatherton, individually and as trustee of the estate of James M. Heatherton,…

Appeal by the plaintiff, William W. Brauer, from, an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1901, granting the defendant’s motion for a new trial made upon the minutes after a trial at said term which resulted in the verdict of a jury in favor of the plaintiff for $40,000. ■ Also, an appeal by the defendant, The.