Volume 66 — New York Supplement

<p>Appeal from special term, New York county.</p> <p>Action by Charlotte Y. Ackerman against Clarence F. True. From a judgment for plaintiff (66 N. Y. Supp. 140), defendant appeals.</p>

<p>Injunction by the town of North Hempstead against Matthew H, Gregory. Injunction granted, with damages.</p>

<p>1. Injunction—Evidence to Authorize.</p> <p>Where the complaint and moving papers on which a temporary injunction was granted, restraining defendants from certain disorderly acts, though not made on information and belief, contain allegations which could not have been within the affiants’ knowledge, and defendants answered, denying the acts enjoined, and submitted many affidavits, by persons in a position to know, denying in detail the commission of the acts complained of by any of the defendants, the temporary injunction will not be continued, since on similar evidence at the trial the complaint would be dismissed.</p> <p>2. Same—Picketing.</p> <p>Where the moving papers for an injunction charged some of the de-</p> <p>. fendants with loitering round the street and sidewalk in front of plaintiffs’ premise, and with picketing or patrolling such premises, an injunction to restrain such acts will not be granted; the acts being not unlawful if unaccompanied by disorderly conduct.</p> <p>3. Same—Payments to Strikers.</p> <p>Where temporary injunction was granted, restraining defendants from paying or offering to pay any former employs of the plaintiffs any money to induce such person not to enter plaintiffs’ employ, or for the purpose of combined action to prevent plaintiffs from continuing in business, and answering affidavits denied making the payments for any such purpose, but admitted making the payments to help plaintiffs’ employés in their strike, the injunction will not he continued, since such payment is not unlawful.</p>

Action by Belinda Ann Smith and others against Abram Sponsable. From a judgment in favor of plaintiffs, defendant appeals. Prior to April 1, 1846, John W. Riggs, Aziel Hough, and Henry Adams were the owners of a certain plot of land upon which was a woolen mill situated north of Zimmerman’s creek. The property was reached by a bridge crossing the creek at the southeast corner of the land, and from thence by a private way westerly from North Division street to this bridge.

<p>Officers—Civil Service Regulations—Tenure of Temporary Appointees.</p> <p>There is no provision in the state civil service laws, or the regulations made thereunder relating to state or municipal appointments, by which a temporary appointment, made to a competitive position, without examination, can ripen into a permanent one; and the provisions of regulation 35 adopted by the municipal civil service commission of the city of New York, that all employment in positions under any of the schedules except Schedule G shall be provisional, and which provisional service shall continue six months, after which, if the conduct and character of the appointee have been found satisfactory to the appointing officer, he shall receive an appointment, apply only to permanent appointments made after examination, and do not entitle an appointee under regulation 34, which provides for temporary appointments where there is no eligible list, to a permanent appointment, although he may have served acceptably under such temporary appointment for'more than six months.</p>

Certiorari by the people, on the relation of the Erie Railroad Company and others, to review the determination of the board of railroad commissioners granting to the Delaware Valley & Kingston Railway Company a certificate of reasonable necessity and convenience for the construction of its proposed road, under Railroad Law, § 59. Determination of the board of railroad commissioners confirmed.

<p>Action by Christopher J. Kenny and another against Hugh V. Monahan. Judgment in favor of plaintiffs.</p>

Application by one Van Beuren and others for a peremptory writ of mandamus to compel the comptroller of the city of New York to pay the relators the sum awarded them for property condemned for a school site.

Action by Henry C. Fischer against William B. H. Jordan and others to foreclose a mechanic’s lien. From a judgment in favor of the plaintiff, the defendants appeal.

<p>Covenants—Construction—Building Restrictions.</p> <p>A covenant in a deed that “no part of said premises shall be so used or occupied -as to injuriously affect the use, occupation, or value of the adjoining or adjacent premises for residence purposes,” and which also enumerated a number of buildings which were prohibited, such as blacksmith and carpenter shops, livery stables, etc., is not violated by the erection of a building with storerooms therein, although such use of the premises might incidentally affect injuriously the use, occupation, or value of the adjoining or adjacent premises for residence purposes.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action, by Nellie E. Chamberlain,, as administratrix; of John H. Markell, deceased, against Samuel K. Nester. From a judgment in favor of defendant, plaintiff appeals.</p>

> Action by Isaac Smith against John D. Cutter to recover for services performed under a contract. From a judgment in favor of the plaintiff and from an order denying a motion for a new trial, defendant appeals.

Action by George Bishof against Thomas B. Leahy and another for damages for injuries received by plaintiff by being struck by falling material from a building. There was evidence that plaintiff was rendered unconscious by the blow, and that when his head was dressed several stitches were taken in his scalp.

<p>Religious Societies—Ultra Vires Acts—Consolidation—Action to Set Aside—Prior Request—Necessity.</p> <p>Where two religious corporations have consolidated without attempting to follow the provisions of the statute provided therefor, either party to such action may sue to set aside the consolidation as ultra vires, without any prior request so to do from its members.</p>

<p>1. Judgment—Pendency of Other Action—Res Judicata.</p> <p>Where, in a subsequent action, judgment was rendered during the pendency, but after trial before a referee, of a prior action involving the same issues, such judgment is not res judicata of the matters involved in the first cause, since the judgment could not have been pleaded or put in evidence before the referee.</p> <p>2. Same—Law of the Case.</p> <p>Though a judgment rendered in a subsequent action, during the pend-ency, but after the trial, of a prior action involving the same issues, is not res judicata of the matters involved in first cause, yet where, on the appeal in which such judgment was affirmed, the court did not overlook some question, or was not manifestly in error, the determination of the subsequent cause will be held decisive of the prior action.</p> <p>8. Referee’s Finding—Evidence—Sufficiency—Affirmance of Judgment.</p> <p>Where the determination of a referee is fairly sustained by the evidence, a judgment entered on his decision will be affirmed on appeal.</p>

<p>■•Costs—Grounds—Issues of Fact.</p> <p>The general answer of an infant by his guardian ad litem, when sufficient for the purpose of putting plaintiff to his proofs, and enabling the guardian to controvert every allegation of the complaint, suffices to raise an issue of fact for the purpose of taxation of costs.</p>

<p>Execution against ti-lb Person—Issuance by Clerk—Mandamus.</p> <p>Consol. Act, § 1405, provides that where, in an action in a district court by a female to recover for services performed by her, a judgment is obtained for less than $50, and execution against property is returned unsatisfied, the clerk, on application, must issue execution against defendant’s person; and section 1386 directs that, when a judgment is rendered in a case in which defendant is subject to arrest, it must be so stated in the judgment. Held, that a female, having a judgment under $50 on which execution against property has been returned unsatisfied, cannot compel the clerk to issue a body execution, where the judgment does not state that defendant is subject to arrest.</p>

<p>Lost Note—Action—Bond—Approval—Right op Recovery.</p> <p>Under Code, § 1917, requiring the plaintiff in an action on a lost note, as a condition to recover, to execute a written undertaking, approved by the judge, to indemnify the adverse party against any claim,, costs, or expenses on account of such note, the payee of a lost note, after filing such a bond at the trial, and its approval by the judge, was entitled to judgment for the amount due on the note.</p>

<p>Appeal from special term, ¡New York county.</p> <p>Action by Solomon B. Toplitz and others against Harry L. Toplitz, individually and as administrator with will annexed of Lippman Toplitz, deceased, and others, to set aside a certain sale of realty and for partition. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal.</p> <p>Complainants averred that Lippman Toplitz died in 1897 intestate, and seised of considerable real property, which was described in 13 separate parcels, being the premises sought to be partitioned. After setting forth the usual formal allegations as to the rights and interests of the parties, the complaint alleges that, for a long time prior to the death of Lippman Toplitz, the defendant Harry L. Toplitz, who is an attorney and counselor at law, had the management of the improved property, and that ever since said defendant had the management and charge of all of the real estate of said decedent, as attorney and agent for the various heirs to said estate. In addition, .Harry L. Toplitz had, since the death of said Lippman Toplitz, sole management of all the affairs of the personal estate which he left, as administrator. That in January, 1900, the heirs at law of the said Lippman Toplitz entered Into a written agreement, by the terms of which the said Harry L. Toplitz was delegated on their behalf to sell, with the assistance of an auctioneer, all the real property comprising the estate of said Lippman Toplitz, deceased, at a time to be fixed by said Harry L. Toplitz in the exercise of his sound discretion, who was also directed by said agreement to advertise said sale in a thorough and efficient manner, and to do all things necessary in the proper conduct of said sale, for the best interests of all the parties thereto. The plaintiffs further allege that the said Harry L. Toplitz, through his stewardship of the said estate, had acquired a full knowledge and acquaintance with all the facts connected with said property, its rentals and values, and that as attorney, agent, administrator, and interested as tenant in common in the successful management of said estate, the plaintiffs reposed explicit trust and confidence in him, and in the proper and faithful performance of his trust and of his duties under said agreement, which he undertook to carry out. The complaint then sets out in detail the alleged studied efforts on the part of the said Harry L. Toplitz to acquire the property of the estate for himself and three of the defendants by a sacrifice of the plaintiffs’ rights. It sets forth the alleged acts of the said Harry L. Toplitz in misrepresenting to his clients facts as to the property ‘to be sold, of which he had sole cognizance. It narrates his efforts to prevent other bidders from attending the sale and bidding on the property. It alleges that he deceived the plaintiffs into believing that the property was being sold without reserve to outside bidders, while he, through the medium of dummies, was buying in the property at prices far below its real value, and his unfaithful and unfair conduct of said sale; and, finally, it is alleged that all the property, with the exception of three parcels, was struck down, to persons representing the said Harry L. Toplitz, for a sum between $75,000 and $100,000 less than the property was actually worth. The complaint then prays that the said sale to the defendant Harry L. Toplitz and to the defendants he represented be set aside, the agreement annulled, and then follows the usual prayer for a partition and sale of the property. To the complaint the defendant Harry L. Toplitz, and the three defendants connected with him in the acts aboyé described, interposed a demurrer, on the ground that the complaint did not state facts sufficient to constitute a cause of action, excepting that part of the complaint describing three parcels of such realty. The court below (ANDREWS, J.) overruled the demurrer as follows: “The complaint sets forth a single cause of action only. The demurrer is to a portion of said cause of action only, and is therefore bad. Demurrer overruled, with leave to answer on payment of costs.”</p>

Action by Lorenz Leopold against Hyman Epstein and another as sureties on an undertaking. From a judgment entered on the direction of a verdict for plaintiff, and from an- order denying a motion for a new trial, defendants appeal.

Action by Joseph Nead against the Roscoe Lumber Company. From a judgment for plaintiff and an order denying defendant’s motion for a new trial, defendant appeals.

Action by William S. Lewis against Charles Hoffman, Jr. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Husband and Wife—Fraudulent Conveyances—Burden of Proof—Presumptions.</p> <p>Where, in an action to set aside a transfer of property by plaintiff to his wife on the ground of fraud, due execution of the conveyances was proven, the burden was on the plaintiff to show their invalidity and his own incompetency, there being no presumption that he was dominated by his wife or that the transfer was fraudulent.</p> <p>2. Same—Fraud—Evidence—Sufficiency.</p> <p>Where plaintiff transferred his property to his wife after consulting competent attorneys, and where there was testimony that his family physician had prescribed opium and morphine for his use, and of several other physicians that plaintiff’s mind was clear and rational, evidence that he was a man. of advanced years, and addicted to the use of morphine and affected with epilepsy, and that his wife, who had received a diploma as a physician before her marriage, administered morphine to him, was not sufficient proof of fraud to invalidate the conveyance.</p>

Action by 'Clara L. Stewart, an infant, by her guardian ad litem, against the Long Island Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Proceedings in the matter of objections to the certificates of nomination of Joseph P. Hennessey and Richard H. Mitchell for state senator for the Twenty-First senatorial district. From an order at special term reversing a decision of the police board in favor of Richard H. Mitchell, he appeals.

<p>Vacating Judgment—Order—Validity.</p> <p>An order of a municipal court on vacating a judgment, which omits to set the cause down for pleading, hearing, or trial, is invalid, though defendant was not a resident of the county.</p>

<p>Action on Note—Demand.</p> <p>An action will not lie against the indorser of a note where there is no evidence of demand on the maker.</p>

<p>Appeal from trial term.</p> <p>Action by William H. Schusterman against Max Schwartz and Max Sameth. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Foreign Corporations—Right to Sue—License—Attachment.</p> <p>Under Code Civ. Proc. § 1779, providing that “an action may be maintained by a foreign corporation in like manner, and subject to the same regulations, as where the action is brought by a domestic corporation, except as otherwise specifically prescribed by law,” there being no law prohibiting domestic corporations from maintaining attachment proceedings, a foreign corporation doing business wholly without the state may maintain such proceedings against a natural person on a contract made without the state without complying with Gen. Oorp. Law, § 15, relating to foreign corporations doing business within the state.</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Frank Gralleranzo was convicted of knowingly receiving stolen goods, and he appeals.</p>

Action by Joseph Nowack, an infant, by Barnett Nowack, his guardian, against the Metropolitan Street-Bailway Company, to recover for injuries caused by the defendant’s negligence. From a judgment in favor of the defendant, and from an order denying a. motion for a new trial, plaintiff appeals.

<p>Trial—Pleading—Amendment.</p> <p>Defendant should be allowed to set up, by way of supplemental answer, a settlement made with defendant, where the case had not reached trial, and there was no evidence that any injury had been sustained in consequence of defendant’s delay in making motion for such privilege.</p>

Action by the Remington & Sherman Company against the Niagara County National Bank. From an order denying a motion to change place of trial from New York county to Niagara county, defendant appeals.

<p>Appeal from special term.</p> <p>Action by Robert O. Babbitt against William W. Gibbs. From an order granting a motion for leave, to amend defendant’s answer, plaintiff appeals.</p>

Action by Elizabeth. Albrecht, as administratrix, against the New York Central & Hudson Biver Bailroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Street Railroads — Personal Injuries — Earning Capacity — Excessive Damages.</p> <p>Where the injury sustained by plaintiff from being knocked down by one of defendant’s street cars did not affect his earning capacity, and prevented him from performing his customary duties only for a few weeks, a verdict for $4,965 was excessive.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Emily F. Bloodgood against John D. Slayback and others. From an order denying a motion to vacate an order for the examination of defendant Slayback, he appeals.</p>

Application by Dennis O’Sullivan for peremptory writ of mandamus against Charles Knox and others of the civil service commission of the city of New York to compel defendants to place the applicant’s name on the pay roll, and certify the amount of salary due, and also to certify that the applicant had been lawfully employed by the stenographer of the municipal court from August 1, 1399, to October 10, 1899. From an order granting the writ, defendants appeal.

Suit by Consider Parish and others against the New York Produce Exchange and others. From an order denying motion for an extra allowance, plaintiffs appeal.

<p>Attorney and Client—Fees.</p> <p>Where an attorney at law retained, more than 50 per cent, of money collected for bis client, an application for an order to compel him to pay over the money retained should not be dismissed on a mere averment that he retained it as compensation, but a reference should be ordered to take proof as to the value of the services.</p>

<p>Mortgages — Foreclosure — Surplus Proceedings — Reference — Stipulations as to Costs and Disbursements—Validity.</p> <p>The costs and disbursements in proceedings for the distribution of a surplus fund on foreclosure are, by the express provisions of the Code, to be imposed in the discretion of the court in such way as justice requires, • and hence a stipulation of counsel that the referee’s or stenographer’s fees should be paid out of the fund is unauthorized.</p>

<p>Appeal from special term, New York county.</p> <p>Action by S. Anargyros against the Egyptian Amasis Cigarette Company and others. From an order denying motion for a temporary injunction, plaintiff appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Dennis Deegan and another against James and Edward Kilpatrick to foreclose a mechanic’s lien. From a judgment for plaintiffs entered on a decision of the court, defendants appeal.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Thomas F. Robertson against the Rockland Cemetery .Improvement Company and others. From an order denying a motion to compel plaintiff’s attorneys to accept an amended answer, defendants appeal.</p>

<p>Appeal from trial term.</p> <p>Action by Jacob B. Eeese and another against Edward W. Besburgh (or Bisbrough) and others. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>Transfer Tax—Trust Estate—Remainders.</p> <p>Under Laws 1892, c. 399, § 1, subd. 3, providing that, when a transfer of property is intended to take effect in possession or enjoyment at or after the transferror’s death, a tax shall be imposed on the transfer, where deceased transferred property to trustees, the deed declaring that the fund on his death should be paid to his daughter, or if she be dead, without issue, or having by will appointed any one to take the fund, then to her next of kin, and the daughter died before deceased, leaving no issue, nor having exercised her power of appointment, the transfer to the next of kin was taxable, since, though the remainders vested in the next of kin on the death of the daughter, they were not intended to take effect “in possession or enjoyment” until the death of deceased.</p>

Action by William J. Underwood and another, as executors of Emory M. Van Tassel, deceased, against the Greenwich Insurance Company. From a judgment for plaintiff entered on a directed verdict, and from an order denying a new trial, defendant appeals.

Action by Jacob Lubliner against Tiffany & Co. for false imprisonment and malicious prosecution. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Application by Philip F. Olwell to strike the names of Thomas S. Varter and others from the register of voters. From an order striking respondents’ names from the register, they appeal. Affirmed.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by the National Revere Bank of Boston against the National Bank of the Republic of New York. From a judgment on a verdict for plaintiff, defendant appeals.</p>

<p>1. Appeal—Dismissal.</p> <p>An appeal not perfected within the time fixed by Code Civ. Proc. § 1351, providing that an appeal shall be taken within 30 days after service of a copy of the judgment or order appealed from, and written notice of the entry thereof, on the attorney for the appellant, will be dismissed, unless a satisfactory and sufficient excuse for the delay Is presented.</p> <p>2. Same—Questions Considered.</p> <p>Where separate appeals are taken from a judgment entered on a verdict, and from an order denying a motion for a new trial on the minutes, appellant is in a position, on the appeal from the order denying a new trial, to review all the proceedings taken on the trial, so far as the same are presented by exceptions, though the appeal from the judgment rendered on the verdict is dismissed as not having been perfected in time.</p> <p>8. Negligence—Instructions—Trial—Verdict.</p> <p>Plaintiff was employed by defendant, a street-railroad company, in a building, a portion of which was leased to a corporation experimenting as to whether compressed air could be successfully used in operating street cars. Defendant furnished said corporation certain of its cars, and a motorman and conductor to operate them. When it became necessary to charge a car with compressed air, it was run into the portion of the building leased by the corporation, and its employes connected the reservoir underneath the car with the compressed-air reservoir by means of a pipe. On the day in question this pipe burst, injuring plaintiff. The jury was instructed that, to entitle plaintiff to recover, it must he found that defendant was the owner of, and engaged in the operation of, the apparatus for charging the car with air, and was guilty of negligence in its use. The jury found specially that the persons in charge of the car at the time of the accident were in the employ of the air company; also, that the accident was due to the negligence of the defendant. Held, that such findings were inconsistent with the instruction, and that a verdict thereon in favor of the plaintiff was error.</p> <p>4. Trial—Instructions.</p> <p>Where, in an action for negligence, a portion of the charge referring to the liability of the defendant for the condition of the apparatus causing the injury was inconsistent with a charge given at the request of the defendant at the close of the main charge, and qualifying it, the later instruction should control.</p> <p>6. Evidence—Bbs Gestae—Declaration op Agents.</p> <p>Declarations of the officers of a corporation are inadmissible to show liability of the corporation in the control of apparatus causing an injury complained of, where such declarations are not shown to have been made as a part of a transáction connected with a matter over and concerning which the officer was authorized to act.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by William Vanson against the Metropolitan Street-Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Mechanics’ Liens—Discharge op Security—Action on Bond.</p> <p>A bona executed to a city for the payment of any judgment to be rendered in an action to foreclose a mechanic’s lien, under Laws 189S, c. 169, amending Laws 1897, c. 418, § 20, providing the manner in which a lien against an amount due or to become due from a municipal corporation to a contractor for a public improvement may he discharged, is within the meaning of Code Civ. Proc. f 814, providing that where a bond has been given, as prescribed by law, in the course of an action or special proceeding, to the people or to a public officer, for the benefit of a party interested, and provision is not made by law for the prosecution thereof, the party interested may maintain an action in his own name thereon after procuring an order granting him leave to do so.</p>

Action by George E. Williams and others, as trustees under the will of Mary Mason Jones, deceased, against Catherine L. O’Conor Jones and others. From a judgment in' favor of the plaintiffs, defendants appeal. Action brought to procure a judgment construing the ninth clause of the will of Mary Mason Jones, deceased, and also for a settlement of the accounts of her executors and trustees. The ninth clause of the will reads as follows: “Ninth.

<p>1. Street Railroads—Injuries to Passenger—Evidence—Objections.</p> <p>The complaint alleged that plaintiff, a passenger on defendant’s street car, was “severely injured and bruised about different parts of her body, and particularly as follows: A fracture of the right fibula at its lower third; a badly sprained ankle, with ecchymosis extending from the toes to the knee, and great swelling of the foot and ankle.” Her attending physician and another witness testified without objection that they found deformity at the ankle and ankylosis, and the latter was asked if a formation had been created at the bottom of the tibia or fibula, preventing movement of the ankle joint, when defendant objected for the first time that the testimony as to her condition was not within the allegations of the complaint. Held, that such objection came too late, as the facts showing condition of the ankle had already been proven without objection.</p> <p>2. Excessive Damages.</p> <p>Plaintiff, a carpet sewer, earning $8 per week, sustained a fracture of the right fibula and sprained her ankle while alighting from a street car. She was incapacitated for her work for seven months, and paid $185 for medicines and doctor bill, and there was evidence that the injury, which produced ankylosis, was permanent. Held, that a verdict for $7,000 was excessive, and should be reduced to $5,000.</p>

Action by Sarah A. Bly against the Edison Electric Illuminating Company. From a judgment for plaintiff, defendant appeals.

<p>1. Contract—Default in Payment—Demand—Abandonment.</p> <p>There is no default in payment, authorizing abandonment of a contract to furnish stone for a building, where the contractor failed to comply with the provision of the contract that, before any sum should be due, he should furnish a certificate of the architect approving the quantity and quality of the material furnished, but without such certificate, the furnishing of which the other party in no way prevented or waived, and made demand for more than was earned under the contract, which latter sum the other party offered to pay.</p> <p>&. Same—Provision for Damages.</p> <p>Provision in a contract to furnish stone for a building, that, if the contractor fails to fully perform it by the time stipulated, he shall pay, as liquidated damages, $50 for every day he shall be in default, does not apply to a case of otter abandonment of the contract by him.</p> <p>8. Same—Measure of Damages.</p> <p>The measure of damages for breach of contract to furnish for a building stone of a certain color and of certain dimensions is the necessary expense incurred by the other party in obtaining it, there being no open market for it, and he having to open a quarry to get it.</p>

Action by the Shepard & Morse Lumber Company against the Franklin Trust Company and others. From an order granting plaintiff leave to file a supplemental complaint, defendants appeal.

Action by Abraham Israel against Tillie B. Israel for divorce, and action by Tillie B. Israel against Abraham Israel for separation. From orders refusing to allow Abraham Israel to amend his reply in the action for divorce and his answer in the other .action, and from an order denying a motion for a commission to take testimony, Abraham Israel appeals. Orders denying leave to amend affirmed, and order denying a commission reversed.

<p>Appeal from special term.</p> <p>Application by Catherine M. J. Redmond, as administratrix of Rebecca D. Champlin, deceased, for an order requiring Charles C. Leeds, an attorney, to pay over certain money. From an order denying the application, petitioner appeals.</p>

Judicial settlement of the accounts of George B. Coe, executor of 'Sarah A. Coe, deceased. From a decree thereon directing the executor to pay the Associated Presbyterian Society in Oxford, as a legatee under the will, he appeals. The will of Sarah A. Coe, dated June 10, 1886, was on the 11th day of September, 1893, admitted to probate in the surrogate’s court of Chenango county; .and letters testamentary were issued to George B. Coe, named in the will as .executor.

Action by Walston H. Brown, receiver of the firm of Brown, Howard & Co., against Duncan D. McBean and another. From an order denying the application of Henry C. Copeland, assignee of Charles Peterson, to compel the receiver to pay over certain money to petitioner, the latter appeals.

<p>Appeal from Chenango cóunty court.</p> <p>Action by Carl Swanson against Wilbur D. White for debt. From a judgment for defendant, plaintiff appeals.</p> <p>Between April, 1897, and October, 1897, the plaintiff, at the request of the defendant, furnished board for three different men employed by the defendant at an agreed price of $2.50 per week. Upon October 17, 1897, the parties attempted to adjust their accounts. The balance due, as appeared upon the plaintiff’s book, was somewhat in excess of that which appeared upon the defendant’s book. After some discussion, the defendant gave to the plaintiff a check for the balance as appeared to be due upon his own book, the check reciting that it was “in full to date.” At the time of the giving of the check the defendant said to the plaintiff that, if there was any mistake, he would rectify it. This fact is disputed by the defendant, but for the purpose of this appeal must be deemed to have been found, upon sufficient evidence by the justice. The plaintiff swears that he did not notice that the check read “in full to date.” He afterwards cashed the check, and thereafter brought this action for the balance claimed to be due from the defendant. He recovered in justice’s court the sum of about $17. The judgment entered upon this recovery the county court has reversed, and from this reversal this appeal is taken.</p>

<p>1. Contracts—Consideration—Breach.</p> <p>Plaintiff, being liable on a judgment obtained by defendant against him as guarantor of an advertising contract, made an agreement with defendant to pay installments to the amount of the judgment, and defendant was to permit plaintiff to furnish acceptable advertisements to the same amount. Plaintiff having paid all the amounts called for, defendant refused to receive unobjectionable advertising tendered by plaintiff for a part of such payments. Held, that defendant’s contention that, plaintiff being bound to pay the judgment, there was no consideration for the agreement to accept advertising, was without merit, the agreement being practically one to furnish advertising for defendant; the payment of the judgment being a part of the conpensation therefor, and plaintiff’s full performance of the agreement «being sufficient consideration to enforce defendant’s liability under it.</p> <p>3. Same—Measure oe Damages.</p> <p>Where plaintiff and defendant entered into an agreement by which, plaintiff was to make certain payments to defendant, who was to permit plaintiff to furnish advertising to the same amounts, and defendant, after plaintiff had paid certain amounts, refused to publish advertising matter tendered by plaintiff, the proper measure of damages was the amount paid by plaintiff for which defendant refused to accept advertising.</p>

Action by William Pagett and others against the Connecticut Mutual Life Insurance Company. From a judgment on a verdict for plaintiffs, and from an order denying a motion on the minutes for a new trial, defendant appeals.

Action by Harvey Beagle and others against Edwin B. Cable. From a judgment on the decision of the trial court for plaintiffs, defendant' appeals.

<p>Loan and Trust Company—Liability for Money Had and Received.</p> <p>An officer oí a- corporation remitted to a loan and trust company, trustee in a deed of trust executed by the former corporation to secure-an issue of its bonds, money, which he directed should be applied in satisfaction of a portion of the interest coupons on such bonds due on a specified date and remaining unpaid. At the same time he notified it that a third party named, who, unknown to him, had acquired title thereto, was under obligations to pay the same. The trustee thereupon refused to pay the holder of such coupons, and, on informing the officer as to who had become owner thereof,' he expressly directed it not to pay him. Held, that the trustee was not liable to either the holder of such coupons or his assignee for money had and received to their use.</p>

Action by Charles L. Dimon, as administrator, etc., of Stephen C. Dimon, deceased, against Martha Keery. From a judgment in favor of plaintiff entered on decision of the court on trial without a jury (64 N. Y. Supp. 1091), defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Edward S. Stokes aginst James D. Leary and Daniel J. Leary on four notes. The notes sued on were given by one Polley in consideration of the transfer to him of shares of stock in the Hoffman House, df which Polley was treasurer. James D. Leary, Daniel Leary, and one R. T. McDonald were indorsers on the notes, and were also stockholders in the Hoffman House. Defendants, in their answer, set up counterclaims for damages suffered by Polley by reason of fraudulent representations by plaintiff in inducing Polley to purchase the stock, which claims had been assigned to defendants. Plaintiff, in his reply, set up a conspiracy between Polley and defendants to defraud plaintiff, alleging matters pertaining to Polley’s character; among other things, that Polley “was a mere tool in their hands”; that in another action connected with the same transaction Polley had been indicted for perjury in swearing to the answer in that action, and was awaiting trial on the indictment; and also that in an action recently brought by Policy’s sister to have Polley removed from being her trustee the court had found that Polley was a man of dissolute character, and had appropriated trust funds to Ms own use. Defendants moved to strike portions of the reply as scandalous, sections 2, 4, and 5 of the motion being directed, respectively, to the above allegations. From an order denying defendants’ motion to strike such allegations in the reply as redundant and scandalous, defendants appeal.</p>

<p>1. Action against Corporation—Abatement.</p> <p>Where the existence of a corporation expires under its charter pending: an action against it for negligence under the statutes, there is no abatement, and plaintiff may obtain an order permitting the continuance of the-action against the directors as trustees.</p> <p>2. Calendar—Abated Suit.</p> <p>Where pending an action for tort the charter of a corporation expires, until the action is revived under the statute it will be marked “Abated” on the preferred calendar, and on revival may resume its position on the day calendar.</p>

<p>1. Master and Servant—Conteact—Termination of Employment.</p> <p>S. hired plaintiff by a written contract which provided that, in case the connection was severed without plaintiff’s voluntary choice, he should receive a year’s salary or a year’s notice. The contract did not fix a time for the expiration of the employment. Held, that plaintiff was entitled to recover the amount of one year’s salary on his discharge after the expiration of the first year, since such contract did not expire at the end of the year.</p> <p>8. Same.</p> <p>Where an agent hired a servant under a contract by which the latter is entitled to a year’s notice or a year’s salary in case of discharge, but the contract is subject to be terminated at the end of a year on the revision of a contract between the principal and agent, but no revision occurs, and the servant is discharged thereafter, he is entitled to recover a year’s salary.</p> <p>8. Same—Question for Referee.</p> <p>Where a contract of employment made with an agent stipulated that the servant should receive a year’s notice or a year’s salary in case of discharge, and the agent, in an action by the servant against the principal, testified that he informed the servant that the agent and principal had formed a partnership, and that the agreement with the defendant was then voluntarily canceled, which was denied by the plaintiff, the question whether the contract was voluntarily canceled was a question of fact to be determined by the referee.</p>

<p>Appeal from special term, Niagara county.</p> <p>Action by Herman S. Lary against Isaac H. Pettit and another to set aside a conveyance. From a judgment in favor of plaintiff, defendants appeal.</p> <p>The plaintiff obtained a judgment against Isaac Pettit on the 22d day of January, 1899, which is the basis of this action. The deed which, by the judgment, has been set aside, is claimed by the defendants to have been executed on the 12th day of August, 1895, delivered on the 10th of June, 1896, and recorded on the 4th of December, 1897. It has been found at special term that at the time of the contracting of the debt upon which plaintiff has recovered Isaac Pettit was the owner of this property; that thereafter, upon the-4th of December, 1897, with intent to defraud the plaintiff, he transferred the property to his daughter, Myrtle Pettit; that the deed was never delivered;, and that defendant has no other property. One Kobert J. Boyd had theretofore recovered a judgment against Isaac Pettit, and brought an action to set' aside this deed, in which he was successful. Upon his common-law judgment the defendant Isaac Pettit was sworn in supplementary proceedings.</p>

Action by Leon Abbett and others against Emma A. Blohm and another. From an order vacating a judgment tor plaintiffs, they appeal.

Action by Margaret E. Hennesy against Patrick L. Kelly. From a judgment in favor of the plaintiff, and from an order denying motion for a new trial (64 H. Y. Supp. 562), defendant appeals.

. Action by Elizabeth Moeller, administratrix, against the Delaware, Lackawanna & Western Railroad Company. From a judgment in favor of plaintiff, defendant appeals. This case has been twice tried. Upon the first trial the plaintiff recovered a verdict, and the judgment entered thereon was reversed by this court. The case was again tried, and submitted to the jury, over the. defendant’s objection and exception, with the same result as upon the first trial.

Action by Isabel G-. Woodruff against Amos Woodruff and others to recover income from a trust fund. From a judgment in plaintiff’s favor, defendants appeal.

Action by Charles M. Hough, receiver, etc., against Richard A. Canfield. From an order granting plaintiff’s motion to place the cause on the preferred calendar, defendant appeals.

Mandamus, on the relation of George I. Roberts, against Charles F. Cannedy, as president of the board of education of the city of New Rochelle, and others. From an order denying the writ, applicant appeals.

<p>Appeal from trial term, Kings county.</p> <p>Action by Gustav Weissboum against Max Solomon. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Richard Olpherts against Frank Sullivan Smith. From a judgment in favor of defendant (62 N. Y. Supp. 409), plaintiff appeals. '</p>

Mandamus by the people, on relation of Dennis Grady, against Charles H. Knox and others, as civil service commissioners of the city of New York, to compel respondents to certify relator’s promotion to roundsman. From a judgment granting a peremptory writ, respondents appeal.

Action by Delmer D. Martin, as assignee of the Brooklyn Hardware & Sporting Goods Company, against Philip Lewinski, to recover damages for conversion. From a judgment for plaintiff, defendant appeals.

<p>1. Reference—Necessity—Right to Compel.</p> <p>Under Code Civ. Proc. §’1013, providing for a compulsory reference where the trial will require the examination of a long account on either side, the plaintiff is not entitled to a compulsory reference, where, from the pleadings and motion papers, it appears that the only question involved is one between the plaintiff and another not a party to the action, and is only involved collaterally.</p> <p>3. Same.</p> <p>Under Code Civ. Proc. § 1013, providing for a compulsory reference, a reference cannot be had in an action brought On án express contract in no way involving such a question, which can be raised only in connection with an answer which sets up new matter tending to show payment.</p>

Action by Clara J. Brown and others against Gertrude M. Mount, executrix of Henry R. Mount, impleaded. Prom so much of an interlocutory judgment as directed a judgment in favor of plaintiffs and against Henry R. Mount personally, defendant appeals.

<p>1. Conditional Sale—Default—Right of Possession—Evidence.</p> <p>By a contract in writing, defendant hired a piano of plaintiff, and agreed to pay $290 rent, in monthly installments of $10 each, and to keep it insured in favor of plaintiff, and not to underlet it without his consent, and that in case of default he would return it, at the option of plaintiff, in as good condition as received, ordinary wear excepted, with the privilege of purchasing it within 30 months if the terms of the agreement were kept. Defendant, after having paid $160, made default. Held, that a verdict awarding defendant possession of the instrument was against the weight of the evidence, since the contract was not a hiring, though so designated, but a conditional sale.</p> <p>2. Motion fob Yebdict—Necessity—Waiver of Objection.</p> <p>The fact that plaintiff did not move that a verdict be directed in his favor did not constitute a waiver of his right to insist on appeal that the verdict was against the weight of the evidence.</p>

Bill by Charles Deuterman against Samuel H. Gainsborg and . another. Upon death of plaintiff, his executors were duly substituted. Judgment for defendants, and plaintiffs appeal.

<p>Insolvency op Husband—Payments on Wipe’s Property—Lien op' Creditors.</p> <p>Where a husband, being insolvent, occupied with his family a house owned by the wife, and, instead of rent, paid taxes, insurance, interest on mortgages, and repairs thereon, the amount of such payments being less than half the rental value, such payments having been made without any express agreement with the wife therefor, such payments were not made in fraud of creditors, so that a judgment creditor could claim a lien on the house for the amount of them, since in providing a home for his family he was simply fulfilling the obligation imposed on him by law.</p>

<p>Discovery—Examination of Plaintiff before Trial.</p> <p>Where plaintiff, injured while working at a machine, claims that the injuries were caused by reason of the intermittent character of the electric current operating the machine, and the machine was not owned by or under the control of the defendant, he merely supplying the motive power, and suggesting that the injury was attributable to the fault of the employer in failing to furnish the necessary and proper appliances for protection of his employés, defendant is entitled to an examination of plaintiff before trial with respect to the machine, and its condition and mode of operation, as well as to plaintiff’s physical condition, but not as to the facts which plaintiff must prove to show freedom from contributory negligence, or facts which must be within defendant’s knowledge, relating to-the negligence asserted by plaintiff to be the cause of the accident.</p>

<p>1. Notes—Partnership—Individual Debts—Payee—Knowledge—Liability.</p> <p>Where notes, executed by one partner in the partnership name, were given for his individual debt, a payee who took the notes with knowledge of such fact cannot recover against the partnership, and hence a subsequent holder who is not a bona fide holder cannot recover.</p> <p>2. Same—Bona Fide Holder—Inquiry.</p> <p>Where notes executed by one partner for his individual indebtedness were drawn in the names of the partners, but not in the partnership name, as established by the partnership agreement, which had not been changed, such difference in the names was sufficient to put a subsequent holder of the notes on inquiry, and hence he was not a bona fide holder, and cannot recover against the firm.</p> <p>3. Same—Negotiable Instruments—Defective Title—Subsequent Holder —Burden of Proof.</p> <p>Under Negotiable Instruments Law, § 98, providing that when the title of any negotiator of a note is defective the burden of proof is on the subsequent holder to prove that he is a holder in due course, where the payee, in a three-months note drawn by one partner in the partnership name, knew that the note was given for the individual debt of the partner drawing it, evidence by the payee that after holding it a few days he transferred it to the holder does not make the plaintiff a holder in due course, since such evidence is not conclusive that the few days did not exceed the three months, and constitute a transfer after maturity, and hence the holder could not recover.</p>

Action by Domenico Marando, as administrator, etc., of Antonio Cantanzarite, deceased, against the T. A. Gillespie Company. From an order denying plaintiff’s motion from a preference on the calendar, plaintiff appeals.

<p>Deeds—Description op Property—Uncertainty.</p> <p>The description of land in a deed stated a point of beginning which could be identified by reference to a map which was referred to in the deed, and stated the first course and its distance, and the distance of all subsequent courses, the last of which terminated at the place of beginning. A surveyor testified that by taking the map there would be no difficulty in locating the land. BeU, that the description of the property to be conveyed was not so uncertain as to invalidate the deed.</p>

<p>Guardian and Ward—Disposition on Fund Held by Decedent as Guardian.</p> <p>Under Code Civ. Prbc. § 2606, providing that the surrogate’s court shall have jurisdiction to compel the executor or administrator of a deceased executor, administrator, or guardian to account, and that in case of a guardianship the jurisdiction may be exercised at the instance of the ward of the deceased guardian, and that the court shall also have jurisdiction to compel the execqtor or administrator to deliver over any of the trust property which has come into his possession or under his control, the surrogate’s court cannot properly direct the executor of a deceased guardian to pay over the trust fund directly to the ward, though she has reached her majority, but should direct the payment of the fund into the court, the further disposition thereof to be controlled by that body.</p>

<p>Appeal from trial term, Greene county.</p> <p>Action by Annie Bell against the New Jersey Steamboat Company. From a judgment in plaintiff’s favor, defendant appeals.</p>

Action by John H. Parks against John W. Gates. From an order denying a motion to vacate an order for examination of defendant before trial, he appeals.

<p>Appeal from trial term, Kings county.</p> <p>Action by Mary O’Dea against Elizabeth W. Aldrich. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Morris Ackman against the Third Avenue Railroad Company for personal injuries. From an order granting a motion, founded on affidavit of plaintiff’s attorney, to amend an amended complaint by alleging that plaintiff’s injury caused him to suffer from certain diseases, defendant appeals.</p>

<p>Appeal from special term, Chenango county.</p> <p>Action by Gage E. Tarbell against George P. Finnegan and others. From an order granting defendants’ motion for a new trial on the ground of newly-discovered evidence, plaintiff-appeals.</p>

Action by James Freeman, an infant, by John Freeman, his guardian ad litem, against the Brooklyn Heights Railroad Company. From an order vacating a prior order dismissing plaintiff’s complaint, defendant appeals.

<p>1. Officers—Preference of Veterans—County Detective.</p> <p>A county detective appointed by the district attorney of the county of . Kings under Laws 1896, c. 772, repealing all inconsistent acts, “to hold office during the pleasure of said district attorney,” is not an employé of the city, within Laws 1887, c. 708, entitled “An act providing for the employés of the various departments of the city of Brooklyn,” and providing that an honorably discharged veteran shall not be removed from a position in such city except for cause.</p> <p>2. Civil Service Law—Person Holding Confidential Relation to Appointing Officer.</p> <p>A county detective, attached by Laws 1896, e. 772, to the office of the district attorney of Kings county, by whom he is appointed, and required, inter alla, to perform such duties as he may require, is a “person holding a strictly confidential relation to the appointing officer,” within Laws 1899, c. 370, § 21, relating to the civil service, and providing that such section shall not apply to such a person.</p>

Actions by John Podmore, administrator, against the Dime Savings Bank of Williamsburgh and the Brooklyn Savings Bank. From judgments in favor of plaintiff entered on direction of a verdict (60 N. Y. Supp. 533), defendants appeal.

Action by Smith Lent against Abram S. Underhill for libel. From a judgment dismissing the complaint at the close of plaintiff’s testimony, he appeals.

Action by Samuel Holmes against Carl E. Eriksen and others. From a judgment in favor of the plaintiff, and an order denying defendants’ motion for a new trial, they appeal.

Action by Arthur G. Peuchen and another against Fritz Behrend.. From a judgment setting aside a verdict in favor of defendant,, and granting a new trial, defendant appeals.

Mandamus, on the relation of James W. Seward and another, against the president and trustees of the village of Sing Sing. From an order denying the writ, relator Seward appeals.

<p>Penalties—Venub.</p> <p>Domestic commerce act (Laws 1896, c. 376, § 29) imposes a penalty for the unlawful use of milk cans, and provides that an action for the penalty may be brought in a court of record having jurisdiction thereof, and the place of trial may be laid in the county where such owner, dealer, or shipper resides, “and, if laid in such county, it shall not be changed for any cause.” Eeld, in an action to recover such penalty, brought in the county where the owner resided, as provided by said act, instead of in the county where the cause of action arose, as provided by Code Civ. Proc. § 983, subd. 1, that while the clause in section 29, c. 376, Laws 1896, prohibiting the court from exercising its power to change the place of trial, violates Const, art. 6, § 1, providing that “the supreme court is continued with general jurisdiction,” the other part of the section is not affected thereby, and the venue was therefore properly laid.</p>

<p>1. Appeal and Error—Harmless Error.</p> <p>Where an expert witness subsequently testified that the car which-killed plaintiff’s decedent “was coming along this way very fast,” and indicated a jumping motion by “this way,” an erroneous exclusion of" a question as to- what, in his judgment, was the speed of the car when, the accident occurred, was not reversible error.</p> <p>2. Appeal and Error—Evidence—Competency.</p> <p>In an action for damages for decedent’s death, caused by one of defendant's cars, where the motorman of the car that killed decedent testified that he was present at the coroner’s inquest, but was not examined as a witness, it was error to exclude the question whether he was-asked by a juryman at the inquest if he saw the accident.</p> <p>3. Trial—Form op Questions—Evidence—Competency.</p> <p>In an action for damages for decedent’s death, caused by one of defendant’s cars, a question asked the motorman of the car that caused: the accident, if he did not state at the coroner’s inquest that he could' not testify to anything about the accident, because he was too excited' at the time to notice what occurred, is sufficiently specific; and it was-error to sustain a general objection to the question, as calling for incompetent evidence.</p>

<p>1. Costs—Judgment op Court op Appeals—Remand—Power op Trial Court.</p> <p>Where the court of appeals makes an order in an equity case taxing costs to appellant, and the case is remanded to the trial court for the sole purpose of carrying out the judgment of the court of appeals, the trial court has no power to award separate bills of costs to each appellant.</p> <p>2. Same—Extra Allowance.</p> <p>Where the court of appeals makes a final judgment in an equity case, and the case is remanded for the sole purpose of carrying out its judgment, the trial court has no power to grant an extra allowance, though the question of extra allowance was not raised in the court of appeals.</p>

Action for personal injuries by William J. ‘Callan against Paul B. Pugh. From a- judgment of the trial term dismissing the complaint, plaintiff appeals.

Application by the people, on the .relation of Eugene Cooney, against George S. Wood, sheriff, for discharge of relator on a writ of habeas corpus.

<p>In the matter of petition of Catherine Blake for the repayment to her from the estate of Anthony Blake, deceased, of moneys paid out by her for her support.</p>

<p>Action by George W. Church against Elizabeth Walsh and others.</p>

<p>Action by Harry W. Chase against the Metropolitan Street-Railway Company.</p>

<p>Motion by the city of Buffalo to open Delevan avenue across the tracks .•and right of way of the New York Central & Hudson River Railroad Company.</p>

<p>Action by- Isabella M. Burton against J. Howard Burton.</p>

<p>Action by Catherine Cogan against Metropolitan Street-Railway Company. Prom an order denying defendant’s motion for leave to serve a supplemental answer, it appeals.</p>

<p>Action by Isabel A. Clark against Benjamin W. Tilton and another, as executor and executrix, etc., of Harriet Hull Seaver, deceased.</p>

<p>Action by Jamei Law Farqubar and John Black Farquhar against the Wisconsin. Condensed Milk Company.</p>

<p>Ación by George F. Farrington against Alice B. Muchmore, as administratrix, etc., of Edward D. Muchmore, deceased.</p>

Action y Udo M. Fleischmann and others, against Juius Fleischmann and others for an accounting, ’rom an order compelling an inspection of partership books (65 N. Y. Suyp. 93), defendants ppeal.

<p>Action by James Flynn and Canice Cassin against the city I New York.</p>

<p>Action by George F. Farrington against Alice B. Muchmore, as administratrix, etc., of Edward E. Muchmore, deceased.</p>

<p>Action by Theodore P. Gregory against Squire Clarke.</p>

Action by John E. Hollingsworth against the Spectator Company. From an interlocutory judgment overruling plaintiff’s demurrer to paragraphs 3 and 7 of defendant’s answer, plaintiff appeals.

<p>"In ie matter of the liquor tax certificate of one [award.</p>

<p>Action by Nellie King agains Henry Gossel. From an order denying defenc ant’s motion for leave to serve an amende answer, defendant appeals.</p>

<p>Action by George W. Knowles against Sylvester ?. Dillenbeck, as, etc., and others.</p>

<p>Action by Louis Klinger, by guardian, against. GCerman Markowitz. From an order granting lefendant’s motion to set aside a judgment in "avor of plaintiff and awarding a new trial (65 ST. Y. Supp. 369), plaintiff appeals.</p>

<p>Action by the Lumber Exchange Bank against Charles Weston and others.</p>

<p>Action by Joseph W. Masters against Henry De Zavala and another. From a judgment for defendants on decision of the court after trial without a jury, plaintiff appeals.</p>

<p>Action by the National Cash-Register Company against Joseph Besch.</p>

<p>Actions by William Murgatroyd and Annie Murgatroyd against the Town of Hempstead •Gas & Electric Light Company.</p>

<p>Action by the people of the state of New York against the Bank of Commerce in Buffalo, Henry H. Persons and John R. Hazel as receivers of the Bank of Commerce in Buffalo, and the Provident Savings Life Assurance Society of New York.</p>

<p>Proceeding by the people of the state of New York, on the relation of John J. Al-bright and others, against the city of Buffalo.</p>

<p>Proceeding by the people of the state of New York, on the relation of John R. Reid, against William H. Connell and others, together constituting the board of audit for the town of Hempstead.</p>

<p>Application by the people of the state of New York, on the relation of the National Surety Company, for a writ of certiorari directed to Thomas L. Feitnei- and others, as commissioners of taxes and assessments of the city of New York. From an order dismissing the writ, relator appeals.</p>

<p>Action by Fred J. Pinsker and another against Adolph Pinsker and another.</p>

<p>Action by the Provident Savings Life Assurance Society of New York against Henry H. Persons and John R. Hazel, as receivers of the Bank of Commerce in Buffalo, impleaded with Mary Helen Brown and another.</p>

<p>Actions by August Reiss and Charles Weber against the town of Pelham.</p>

<p>Action by Daniel Reehl and another against William H. Martens and others.</p>

<p>Action by the county of Queens against John W. Petry and another, as deputy commissioner of public buildings, etc., of the city of New York, and the city of New York.</p>

<p>Action by Thomas F. Robertson against the Rock-land Cemetery Improvement Company and others. From an order denying a motion to compel plaintiff’s attorneys to accept an amended answer, defendant Mary A. Stone appeals.</p>

<p>Action by the St. Regis Paper Company against the Metropolitan Paving & Contracting Company and others.</p>

<p>Action by Coryel H. Sarasohn against the Workingman’s Publishing Association and others. From a judgment sustaining a demurrer to the third paragraph of defendant’s answer they appeal.</p>

<p>Action by Samuel H. Shotwell against Baltie H. Dixon and others.</p>

<p>Action by John Silvernail against James Connors and another.</p>

<p>Action by the Solvay Process Company against Percy Kent.</p>

<p>Action by Fanny Sprague against the city of Rochester.</p>

<p>Action by Moses Tanenbaum against Robert Lindheim and another. From an order denying defendant’s motion to vacate an ex parte order for his examination before trial, defendant appeals.</p>

<p>Action by the town of Lysander and another against the Syracuse, Lakeside & Baldwins-ville Railway and another.</p>

<p>Action by Libbie Van Wagoner against John Thompson, as executor, etc.</p>

<p>In the matter of the application of Frederick Verway and another to lay out a highway in the town of Islip, etc.</p>

<p>Action by Elliott D. Wigton as receiver of the Iowa Savings Bank against Albert S. Kenney.</p>

Action by Ellis R. Williams against the Delaware, Lackawanna & Western Railroad Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>In the matter of the application • of James H. Westcott, Jr., for admission to .practice.</p>

<p>Action by Maria Wells against Nellie Rothwell, individually and as executrix, etc.</p>

<p>In the matter of the application of Sidney H. Woodruff for removal from certain premises in the city of Buffalo of Everard C. Dennison and another.</p>