Volume 67 — New York Appellate Division Reports

<p>Six separate appeals by different defendants, one from the whole and five from various parts of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 3d day of May, 1901, upon the decision of the court rendered after a trial at the Rew York Special Term.</p>

Appeal by the defendant, The Mutual Life - Insurance Company of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of November, 1901, denying said defendant’s motion for a preference and to place the cause upon the preferred calendar pursuant to subdivision 5 of section 791 of the Code of Civil Procedure.

<p> Injunction to prevent illegal acts of a trade union association. </p> <p>In an action by a painting contractor against an association of journeymen painters and decorators, and the officers thereof, to restrain them from doing certain acts which would interfere with the property rights and business of the plaintiff, in which it appears that the defendants have been guilty of unlawful , acts with respect to the plaintiff, the latter is entitled to an injunction pendente lite restraining the defendants from interfering in any manner with the business of the plaintiff by resorting to intimidation, force or fraud, or by such acts injuring the business of the plaintiff or preventing the members of the defendant association from working for the plaintiff, or from preventing other men employed by him from working for the plaintiff or upon any contract with which he is connected.</p>

Appeal by the defendants, Alfred E. Goslin and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 3d day of July, 1900, upon the verdict of a jury convicting the defendants of the misdemeanor of conspiracy, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Benjamin L. M. Bates, from a judgment of the Supreme Court in favor of the defendants,- entered in the office of the clerk of the county of Mew York on the- 1st day of July, 1901, upon the decision of the court rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.

Appeal by the defendants, The New York Elevated Railroad Company and another, from á 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 29th day of March, 1901, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, Central Spar Yerein, 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 13th day of March,. 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 13th day of- March, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Henrietta Garcewich, 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 20th day of September, 1901, restraining the defendant from interfering with the plaintiff in his possession of the premises Ho. 45 Whitehall street, borough of Manhattan, city of Hew York, during the pendency of the action.

<p>Appeal by the plaintiff, David Mitchell Thomson, Jr., an infant, by David Mitchell Thomson, his guardian ad litem, 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 8tli day of February, 1901, upon the verdict of a jury, and also from an order, entered in said clerk’s office on the 28th day of February, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The United Press, 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 9th day of August, .1901, granting the plaintiff’s motion for an inspection and discovery of certain books and papers of the defendant,

<p>Appeal by. the defendants, John II. Grant and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of March, 1901, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

Appeal by the defendant, The People’s National Bank of Lebanon, Pennsylvania, from an order of the Supreme Court, made at. the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of September, 1901, denying the defendant’s motion to- vacate a warrant of attachment theretofore granted in the action.

<p>Penalty for delivering “ to cither party” a replevied chattel — what is an allegation that the property was talcen by the sheriff from the defendant or his agent.</p> <p>The words “ either party,” used in section 1707 of the Code of Civil Procedure, imposing a penalty upon “ A sheriff, who delivers to either party, without the consent of the other, a chattel replevied by him,” mean the parties mentioned in section 1706 of the Code, namely, the plaintiff or the defendant in the action, and a complaint in an action brought to recover such a penalty, which alleges that the sheriff delivered the property to some person or persons unknown, does not state a cause of action.</p> <p>A complaint in an action to recover damages for the alleged wrongful conduct of the defendant sheriff, in releasing property which he took into his possession under a writ of replevin issued at the instance of the plaintiff, alleged that the plaintiff sold and delivered property to one Davies at Fort Edward;, that upon discovering that the sale had been induced by false representations, on the part of Davies the plaintiff elected to rescind the sale and brought an action to replevy the property; that Davies shipped the merchandise from Fort Edward to the city of New York, ¡and that on the day of its arrival . in that city the writ of replevin was placed in the hands of one of the defendant’s deputies for execution; that one of the plaintiff’s- officers pointed out to-such deputy a portion of the' property at the New York Central and Hudson River Railroad Company’s freight depot in New York city arid also other portions Of the property found on a public street in that city; that, the sheriff-then and there took possession of the property by virtue of the process, but subsequently released it to some person or persons unknown to the plaintiff and without the plaintiff’s consent.</p> <p>Held, that the complaint sufficiently alleged that the property was taken from the possession of Davies or his agent.</p>

<p>required of a purchaser of a note, which is shown to have had a fraudulent inception — what proof requires the submission of the question of the plaintiff’s good faith to the jury.</p> <p>When, in an action to recover upon a promissory note, it appears that the note had a fraudulent inception, it is incumbent upon the plaintiff to show that he purchased it for value before maturity without notice or knowledge of the fraud.</p> <p>¡Evidence that the consideration paid by the plaintiff to the payee for the note in suit, which was for §2,750, was $600 in cash and, the .surrender of several old promissory notes made by the payee and that the plaintiff knew the payee to be a bookmaker on race tracks, with whom he, as a pawnbroker, had had dealings, and that so far as appeared he made no inquiry as to how the payee became possessed of the note nor as to the consideration thereof, requires the question of the plaintiff’s good faith to be submitted to the jury.</p>

Appeal by the plaintiffs, John Haven and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of April, 1901, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term dismissing the complaint upon the merits, with notice of an intention to bring up for review upon such appeal an interlocutory judgment of the Supreme Court in…

Appeal by the defendant, Annie Pearson, as administratrix, etc., of Samuel W. Pearson, deceased, - 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 29th day of August, 1901, upon the report of a referee.

<p>Street sweeper — care which he is required to exercise to prevent injury from a. street car.</p> <p>A street sweeper in the employ of a city, at work upon a public street between the rails of a street surface railway, is not bound to exercise the same degree of care with respect to street cars that would be required of ordinary pedestrians.</p> <p>In an action to recover damages resulting from the death of the street sweeper in consequence of his being struck by a rapidly approaching street car, which gave no notice of its approach until it was within ten feet of him, evidence that from time to time at intervals of a minute or so he looked for the approach of cars upon the track on which he was working, and that he was doing his work in the usual and proper way, is sufficient to warrant a finding that he exercised such care as was required of him under the circumstances.</p>

Appeal by the plaintiff, the W altham Manufacturing Company, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1901, granting the plaintiff’s motion to strike out certain portions of the answer as fails to provide for the service of the defendants’ amended answer upon the plaintiff, and also from an order of the Supreme Court, made at the New York Special…

Appeal by the defendant, Mary A. Campbell (also known as' Mary J. Campbell), from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 27th day of February, 1901, upon the verdict of a jury; also from an order entered in said clerk’s office on the 20th day of February, 1901, denying said defendant’s motion for a new trial made upon the minutes, and also from an order made at the Hew York Trial Term…

Appeal by William Blair, as administrator, etc., of Lewis R. Blair, deceased, from that portion of a decree of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 18th day of April, 1901, which disapproved a finding of the referee who stated the account, that the appellant was entitled to reimbursement out of the estate for the sum of $2,700 paid by him for counsel fees in the matter of the probate of the alleged will of Lewis R. Blair,…

<p>Appeal by Louis Mathot, the attorney of record for the plaintiff, from'an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of February, 1901, confirming the report of the referee and directing a substitution of attorneys and delivery of papers, and also from a judgment entered upon said order in the clerk’s office of the county of New York on the 4th day of March, 1901, and also from an order entered in said clerk’s office on the 18th day of June, 1901, denying his motion for a new trial upon the grounds of newly-discovered evidence.</p>

<p>Capital stock notes given to mutual fire insurance companies—when they become due — Statute of Limitations.</p> <p>Under sections 111, 113 and 116 of the Insurance Law (Laws of 1892, chap. 690) capital stock notes made to the order of a mutual fire insurance company become due and payable only when necessary to meet current obligations or liabilities and then not until after an assessment, notice and demand.</p> <p>The six-year Statute of Limitations, applicable to ordinary promissory notes payable on demand,, does not apply to them.</p>

Appeal by the defendants, Swits Condé and another, from an? interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of October, 1901, upon the decision of the court, rendered after a trial at the New York Special Term overruling a. demurrer to the complaint.

<p>Appeal by the defendant Henry 0. Glaser, individually and as executor, etc., of Joseph Glaser, deceased, and as testamentary guardian, etc., of the defendant Bernard Glaser, and by Bernard Glaser, by Alexander Herzog, his guardian ad litem, 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 23d day of April, 1901,-upon the decision of the court rendered after a trial at the Hew York Special Term, with notice of an intention to bring up for review upon such appeal an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 23d day of April, 1901, granting an extra allowance of costs to various parties to the action.</p>

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

Appeal by.the petitioner, Elsie Maud. Ashley, from an order of the Supreme Court, made at the Orange Special Term and entered in'the office of the clerk of the county of Kings on the 11th day of July, 1901, resettling an order 'made at the Orange. Special .Term and- entered in said clerk’s- office on the 15th day of June, 1901, and also from the order so resettled.

Appeal by the defendant, the Metropolitan 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 . Kings on the 8th day of February, 1901, upon the verdict of a jury, 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 plaintiff, Rufus 0. Gardner, from a judgment of the Supreme Court in favor of the defendant, entered' in the office-of the clerk óf the county of Orange on the 31st day of -May, 1901, upon the decision of the court, rendered after a trial before the'court without a jury at the Orange County Trial Term, dismissing-the complaint upon the merits.

<p>Appeal by the defendant, Conrad Muller, 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 27th day of June, 1901, enjoining said defendant and others from interfering with the sale by the plaintiff of the chattels and machinery situated in the plant of William M. Dean & Company and of the lease upon which such plant is operated.</p> <p>Also 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 1st day of October, 1901, denying the said defendant’s motion for a modification of the above-mentioned injunction order.</p> <p>Also 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 1st day of October, 1901, appointing the plaintiff receiver .of the property mentioned ffi the injunction order and authorizing him to sell such property and to deliver a good title thereto to the purchaser thereof, free and clear of all claims of the appellant.</p>

Appeal by the plaintiffs, Oliver Landreth and others, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 8d day of June, 1901, upon the decision of the court.

Appeal by Edward J. Moloughney and Michael Moloughney, Jr., as surviving executors of and trustees under the last will and testament of Michael Moloughney, deceased, from that part of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 22d day of May, 1901, which, overruling their exceptions to the report of a referee appointed in the proceeding, confirmed said report and construed a portion of the will of Michael Moloughney,…

Appeal by the defendant, The Associated Manufacturers’,Mutual' Eire Insurance Corporation of the State of Hew York, from a. judgment of the Supreme Court in favor of the plaintiff, a\^corporation organized under the laws of Florida, in each of the above-entitled actions, entered in the office of the clerk of the county of Kings on the 13th day of July, 1901, upon the report of a referee. ■

<p>Lease — right of renewal at a rent to he determined hy an appraisal—the fact that an assignee of the lessor is insane is not a ground for its refusal—method of ■appraisal.</p> <p>A lease of certain city lots for a term of ten years provided that at the expiration of such term the lessees should be entitled to a renewal for an additional term of ten years, provided, among other things, that before the expiration of the original term they should erect on the demised premises a building of the value of §3,000.</p> <p>The lease provided that the rental for such additional term, should be five per centum per .annum on the value of the lots; that if such value _could hot he agreed upon it should be determined hy two disinterested, competent owners of real estate in the immediate vicinity of the demised property or by real estate agents or brokers well versed in the value of such, property in such vicinity; that one of such appraisers should be selected by each party and that their decision should he final, and that if they were unable to agree they should choose a third person of like competency, and that the decision of the majority of the three should he final except that if no two of them should agree then the average of the values determined upon by the three should be accepted; - that in the event of the failure of either party to select an arbitrator, the other party might select a sole arbitrator who should determine the valuation.</p> <p>The lease further provided that if the additional demise' were made all buildings and permanent improvements on the lots should belong to the lessor, hut' that if the additional demise were not made the lessees might remove all buildings placed by them upon the premises before the expiration of the original term.</p> <p>In an action brought by the lessees, who had complied with all the provisions of the lease entitling them to a renewal, to compel the execution of such renewal by the husband of the lessor to whom the premises had been conveyed subsequent to the delivery of the lease and who was bound by the covenants and agreements contained therein,</p> <p>Meld, that the lessees had a vested right to the renewal, and that the fact that the defendant might, by reason of progressive paresis or insanity, be unable to enter upon a new contract at the expiration of the original term, would not be permitted to defeat the rights of the lessees;</p> <p>That the method of determining the rent to be paid during the renewal period amounted to an appraisal rather than an arbitration and that it was not necessary to give notice of the meeting of the appraisers or to produce any evidence before such appraisers as to the value of the premises in question;</p> <p>That such appraisal was not governed by sections 2365, 2366 and 2367 of the Code óf Civil Procedure.</p> <p>Sewell, J., dissented. '</p>

<p>Mortgage procured ~by fraud — innocent mortgagees protected.</p> <p>Where A takes title to property for the accommodation of B, and 0 advances . $4,000 to B ($3,000 of which B used in paying off prior incumbrances upon-the premises) upon the faith" of a mortgage which B fraudulently induced A to execute upon the premises, the loss as between A and O must fall upon the former as it was his act which enabled the wrong to be done.</p>

Appeal by the defendants, Elie Weill and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk' of the county of Kings on the 19th day of June, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of June, 1901, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Peter J. Higgins, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 21st day of June, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the plaintiff’s complaint on the ground that it did not state facts sufficient to constitute a cause of action.

Appeal by Margaret L. Mahlstedt, widow of J. Albert Mahlstedt, deceased, and sole beneficiary under his last will and testament, from a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 24th day of July, 1900, confirming the report of the appraiser appointed in the proceeding, and also from a decree of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court on the 20th day of April, 1901, affirming,…

Appeal by the plaintiff, William Temple Emmet, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 19th day of August, 1901, upon the report of a referee, as sustains the exceptions filed by the defendant Mary Olyphant Emmet, by her guardian ad litem, to such report, and modifies the said report in accordance with such exceptions.

<p>Appeal by the defendant, Leonora Post Banks, 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 11th day of October, 1901, staying proceedings in an action for the foreclosure of a mortgage, in which action the said Leonora Post Banks is plaintiff, and the plaintiff herein, Clarence 0. Post, is defendant.</p>

<p>Negligence — injury from falling into a hole maintained by the defendant in a city street — knowledge by the pa/rty injured of its existence — when on appeal a child will not be presumed to ham been sui juris.</p> <p>In an action to recover damages sustained by the plaintiff in consequence of her falling into a hole which the defendant unlawfully kept and maintained unguarded in the sidewalk of a city street, the fact that the plaintiff knew of the existence of the hole about three weeks before the accident, does not establish that she was guilty of contributory negligence as matter of law, where it appears that at the time she fell she was carrying a basket; that her little brothers were walking in front of her and that she was not “ quite sure” of the location of the hole at the time.</p> <p>Where the reeord on an appeal from a judgment dismissing the complaint discloses the fact that the plaintiff is an infant, but does not establish her age, the Appellate Division will not assume that she is sui juris in the face of evidence that she was a school girl and was referred to by the witnesses as “this little girl; ” that one of her playmates was nine years old at the time of the trial, which occurred nine months after the accident, and that the plaintiff was carried to and from the hospital.</p>

<p> Distribution of personal property—it passes to a nephew and, niece and uncle and aunt, but not to the descendants of deceased uncles and aunts. </p> <p>Under subdivision 12 of section 2732 of the Code of Civil Procedure, as amended by chapter 319 of the Laws of 1898, providing, “Representation shall be admitted among collaterals in the same manner as allowed by law in reference to real estate,” where a woman dies leaving surviving her no husband, brother, sister, ancestor or descendant, but leaves a nephew and niece, the only 'children of a previously deceased brother, and no other children or descendants of brothers or sisters, and also two uncles and two aunts and many children and descendants of deceased uncles and aunts, her personal property is to be divided between the nephew and niece and the surviving uncles and aunts, all of whom are of equal degree of consanguinity to the decedent, and as the uncles and aunts of the decedent would not be heirs in case the property were real estate, the children and descendants of the deceased uncles and aunts are not entitled to take.</p>

<p>Appeal by the plaintiffs, Ernst Henken and another, from a judgment of the Supreme Court in favor of the defendants, Frederick Schwicker and Katie Schwicker, his wife, entered in the office of the clerk of the county of Queens on the 26th day of July, 1900, upon the decision of the court, rendered after a trial at the Queens County Special Term, directing a sale in foreclosure, which adjudged that the sum of $600 was the only sum secured by the mortgage sought to be foreclosed in the action.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 13th day of February, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 19th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William Dershem, from a judgment of the Municipal Court of the city of Hew York, borough of Richmond, in favor of the plaintiff, entered on the 28th day of June, 1901, upon the decision of the court.

<p>Appeal by the plaintiff, Matthew L. Brown, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 24th day of February, 1900, upon the dismissal of the complaint by direction of the court, and also from an order entered in said clerk’s office on the 19th day of February, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Action against the president of a banlc for loaning money on worthless securities — it survives his death — it need not be shown that the president profited by the transaction.</p> <p>An action brought by a bank against the president thereof to recover damages resulting from the acts of the president in unlawfully, imprudently and negligently, without the authority of the' bank, loaning moneys of the bank upon ■unmarketable and comparatively valueless securities, is an acti'oh for a wrong done to the property, fights and interests of the plaintiff, and in the event of *he death of the president of the bank, the cause of action will survive against Ms legal representatives under the provisions of the Revised Statutes (4 R. S. [8th ed.] 2671, § 1.)</p> <p>Under this section of the Revised Statutes it is not essential that the wrongdoer should, by the wrongful act, have derived an advantage to himself or acquired specific property by which, or by the proceeds of which, the assets in tha hands of his personal representatives were increased.</p>

Appeal by Charles H. Knox and others, constituting the municipal civil service commission of the city of New York, 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 July, 1901, directing that a peremptory writ of mandamus issue requiring Charles H. Knox and others, constituting the municipal civil service commission of the city of New York, to certify upon a payroll of…

<p>Appeal by the defendants, Charles Booth and others, composing the firm of Booth & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of January, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term, except from so much thereof as adjudges that the transfer of lumber by Samuel A. Skead on November 16,1898, was made in good faith, and that the defendants thereafter advanced thereon money aggregating more than the value of such lumber.</p>

<p>Negligence — injury from falling through a trap door, not fitted with hinges, improperly replaced by fellow-servants of the plaintiff—who are fellow-servants.</p> <p>Where a hole in the floor of a freight office of a railroad company is fitted with á ' trap door made of the same material as the floor and so constructed that when placed in position it rests upon joists even with the surface of the floor and fits so closely that it is necessary to pry it up in order to remove it, the fact that the door is not fastened to the floor by hinges does not render the railroad company liable to a woman employed to clean the freight office, who steps upon the trap door and is precipitated to the ground, sustaining personal injuries, in consequence of the fact that some plumbers in the employ of the railroad company, who had done some work under the office floor, had neglected to properly replace the trap door..</p> <p>Semble, that in such a case the plumbers and the injured woman are fellow-servants.</p>

<p>Judgment of mortgage foreclosure — right of the mortgagor to compel an assignee of the judgment (who is also the holder of a second mortgage) to transfer the judgment to him— effect of not recording an assumption of a land and mortgage.</p> <p>One Robbins, the manager of the Bllicott Square Bank of Buffalo, purchased a leasehold interest in real property at a foreclosure sale. Immediately thereafter he gave his bond accompanied by a mortgage on the premises to secure a loan made to him by one Howard. At the same time the bank, in whose behalf Robbins was acting, gave to Robbins its written undertaking to pay the said bond and mortgage and to protect him from any liability on account thereof.</p> <p>Robbins then conveyed the premises to the bank by a quitclaim deed which did not contain any clause by which the grantee agreed to assume the mortgage. Subsequently the bank conveyed the premises to one Harriette B. Jones by a deed which did contain an assumption clause. The said Harriette E. Jones executed a mortgage on the premises to one Mary II. Ney, which mortgage was assigned to the Third National Bank of Buffalo.</p> <p>Subsequently the Howards, the holders of the first mortgage, commenced an action to foreclose the same, demanding judgment against the defendant Robbins for any deficiency. After the action had been prosecuted to a judgment of foreclosure and sale, the Third National Bank, which still held the second mortgage, paid the amount of the judgment and obtained an assignment of the same from the Howards and declined to sell the property.</p> <p>Robbins demanded that a sale should be made pursuant to the judgment, or that an assignment of the judgment be made to him upon payment of the amount thereof, or else that he be relieved from any personal liability for its payment, to each of which demands the Third National Bank refused to accede, contending that it was entitled to apply the revenues of the leasehold upon its second mortgage to the exclusion of the first mortgage and still retain the j udgment for the payment of which Robbins was personally liable.</p> <p>Upon an appeal from an order directing the Third National Bank to execute an assignment to Robbins of the judgment of foreclosure and sale and the bond and mortgage on which "the j udgment was founded upon his paying the amount thereof and costs,</p> <p>Held, that the fact that the agreement between-Robbins and the Bllicott Square Bank, by which the latter agreed to assume the payment of the bond and , mortgage, was not recorded and was not known to Harriette E. Jones, did not create a hiatus of personal liability in the chain of conveyances which would render unenforcible the undertaking of Harriette E. Jones to pay the mortgage;</p> <p>That the assumption clause contained in the deed to Harriette E. Jones rendered it incumbent upon subsequent incumbrancers or purchasers to ascertain what basis there was for this assumption of liability;</p> <p>That as the land constituted the primary fund for the payment of the indebtedness and Bobbins was personally liable to the plaintiffs on his bond, he was entitled to compel an assignment of the bond and mortgage to himself, notwithstanding that as between himself and the Ellicott Square Bank he was the surety and the bank was the principal debtor;</p> <p>That the doctrine of subrogation did not entitle a junior incumbrancer to acquire a prior incumbrance and apply the income of the property to the payment of the junior incumbrance to the exclusion of the senior incumbrance;</p> <p>That the judgment of foreclosure and sale was not a bar to Bobbins’ claim that, as between him and the Ellicott Square Bank, he was only secondarily liable, as it was the privilege of the plaintiffs in the action to hold Bobbins alone for the deficiency instead Of bringing in the Ellicott Square Bank and Harriette E. Jones.</p> <p>Adams, P. J., and McLennan, J., dissented.</p>

<p>Action to recover money paid under an invalid assessment — a new trial ordered where a statute controlling the case was not brought to the attention of the trial court.</p> <p>Owners of property in the city of Syracuse, who had been assessed for service connections made with the water mains laid in front of their property, paid the amount of such assessments and then brought an action to recover the sums so paid on the ground that the assessments were invalid and imposed without any authority.</p> <p>Upon the trial the court determined that the assessments were invalid, but found that the plaintiffs were chargeable with knowledge of the facts which rendered them invalid and dismissed the complaint.</p> <p>Chapter 910 of the Laws of 1896, which provides that “Whenever an assessment for a local improvement has been annulled by the judgment or order of any court, any sum of money which has heen heretofore, or shall he hereafter paid thereon, may be refunded with interest from the time of such payment. If not so refunded within one year from the time of such judgment or order annulling such assessment, an action may be maintained to recover such sum with interest thereon,” was not called to the attention of the court.</p> <p>Held,, that under the circumstances the Appellate Division would order a new trial instead of directing that judgment he entered conformably to the decision adjudging that the assessments were invalid.</p>

Motion by the plaintiff, James Y. Goodell, as administrator, etc., of James J. Goodell, deceased, 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 Monroe Trial Term.

<p>Contract with reference to the disposition of the stock of a corporation — the intention of the pm'ties will premil in its construction.</p> <p>A corporation engaged in the manufacture and sale of a patented machine had ■ a quantity of treasury stock which it desired to sell in order to raise money with which to continue its business. Some of the stockholders, hoping to create a market for the treasury stock, entered into an agreement bearing date December 27, 1895, by which they agreed to place their stock in the hands of a certain person, to be retained by him until January 1, 1897, and not to be withdrawn or sold without the consent of all the stockholders signing the agreement, unless the treasury stock should bring into the treasury $50,000.</p> <p>A stockholder named Myers refused to sign the agreement, but was finally induced to do so in reliance upon a contract by which certain other stockholders agreed that sixty shares of his stock' should be excepted from the escrow agreement and left with the treasurer of the corporation, and that before any of the treasury stock should be sold, fifty of the 'sixty shares of Myers’ stock should be sold at not less than par and the proceeds thereof should be paid to • him, the remaining ten shares to belong to the corporation.</p> <p>Thebscrow agreement having failed in its purpose,.a new corporation was formed to manufacture and sell the machines on a royalty. The sum of $5,000 was necessary in order to satisfy the floating indebtedness of the old company and thus avoid any interference with its property and assets. For the purpose of providing this sum, the agreement between the old and the new corporations, which was dated December 13, 1896, contained a clause by which the new • corporation agreed within four weeks to purchase from the old company fifty-shares of the capital stock .and to pay therefor the sum of §5,000 in cash, which sum the old company agreed to apply in payment of its debts.</p> <p>December 34, 1896, fifty shares of stock, no part of which belonged to Myers, were transferred to the new company and it paid the old company therefor §5,000.</p> <p>JBeld,, that the transfer of the stock from the old to the new corporation was not a. sale of such stock, within the meaning of the contract in reliance upon which Myers signed the escrow agreement, and that it did not entitle him to recover the sum of §5,000 from the parties who made such contract with him.</p>

■ Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered ■ in the office of the clerk of the county of Erie on the 15th day of January, 1901, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 15th day of January, 1901, denying the defendant’s motion for a néw trial made upon the minutes.

Appeal by the defendant, Rush Bartlett, from a judgment of the Supreme Court in favor of the plaintiff, entered, in the office of the clerk of the county of Herkimer on the 12th day of December, 1892, upon the verdict of a jury for. $8,000, and also from an order entered in said clerk’s office on the 13th day of December, 1892, deny-. ing the defendant’s motion for a new trial made upon the minutes.

<p> Supplementary proceedings instituted by a county treasurer to collect a tax—costs allowable against him, on the affirmance-on appeal of am, order 'dismissing the </p> <p>The provision of section 259 of the Tax Law (Laws of. 1896, chap, 908), exempting a county treasurer from the payment of costs in supplementary proceedings instituted by him for the collection of a tax, only applies to the original proceedings and does not apply to an unsuccessful appeal taken by the county treasurer from an order dismissing the supplementary proceedings.</p> <p>Section 255 of the Tax Law, which provides: “ An appeal may be taken by either party from an order, judgment or determination under this article as from' an order, and it shall be heard and determined in like manner as appeals in the Supreme Court from orders,” is applicable to an appeal from an order dismissing such supplementary proceedings, and under this section costs upon the appeal should be awarded against the county treasurer as upon an appeal from an order in accordance with section 8289 of the Code of Civil Procedure, and not as upon an appeal in a special proceeding under section 8240 of that Code.</p>

Appeal by the plaintiff, Cadwell B. Benson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the .clerk of the county of Oswego on the 8th day of November, 1899, upon the decision of the court rendered after a trial before the court without a jury at the Oswego Trial Term.

<p>Appeal by the plaintiff, Sidney B. Breesé, as administrator with the will annexed of Catherine H. Graves, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 21st day of Hay, 1901, upon the verdict of a jury adjudging that the defendants were owners and entitled to retain possession of a certain.certificate for fifty shares of the capital stock of the Mew York State Banking Company of Syracuse, M. Y., and also from an order entered in said clerk’s office on the 10th day of Hay, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Action to recover damages for the breach of a contract of lease—where no general damages a/re alleged, the difference between the actual rental value and the rent agreed upon cannot be recovered— special damages must be alleged.</p> <p>Where the complaint in an action to recover damages for the breach of a contract • of lease, because of the refusal of the defendant to let the plaintiff into possession of the demised premises at the beginning of the term, fails to allege any general damages, and avers “that by reason of the failure of the defendant to perform his part of the agreement as aforesaid, said plaintiff has suffered great damage on-account of the expense which he has incurred in preparing to take possession of said premises, and on account of the loss of business which the plaintiff verily believes he has sustained by being deprived of a place of business in the particular locality named;" and then demands , judgment “ for five hundred dollars damages, besides the cost of this action,” the plaintiff is not entitled to recover any general damages, e. g., the difference between the actual rental value of the premises and the rent agreed to be paid.</p> <p>Semble, that the plaintiff cannot recover for expenses incurred by him in painting his sign on the window of the premises and on his delivery wagon, unless such items of damage are specially pleaded.</p>

Certiorari issued out of the Supreme Court and attested on the 27th day of July, 1901, directed to Erastus C. Knight, Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany the accounts, papers and proceedings had in relation to the determination of the defendant in assessing a franchise tax against the relator for the two years ending October 31, 1900.

Appeal by the defendant, The Town of Saranac, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 8th day of April,. 1901, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 11th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Michael Defeo, 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 15th day of October, 1901, denying the defendant’s motion to change the place of trial of the action from the county of Saratoga to the county of Schenectady.</p>

Appeal by the defendant., Elisha Cox, from a judgment of the County Court of Tioga county, entered on the 31st day of July,, 1901, convicting him of the crime of assault in the third degree.

<p>Appeal by the petitioner, John Gr. Pratt, 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 Rensselaer on the 11th day of September, 1901, denying his application for either a peremptory or an alternative writ of mandamus, requiring John Phelan, commissioner of public works of the city of Troy, to reinstate the' petitioner in the position formerly held by him as assistant engineer Under the public works department of the city of Troy.</p>

<p>Complaint alleging that a. deed wasfoi'ged, that it never was delivered, that if executed and delivered it was obtained by undue influence — it states but one cause of action — the plaintiff in an action to remove a cloud from, the title to land must be in possession thereof.</p> <p>The complaint in an action alleged that one Sarah L. Howarth, at her death, was in possession and ownership of certain real estate; that she died intestate, leaving the plaintiff and the defendant as her only heirs at law and next of kin; that after the death of the intestate the defendant fraudulently caused to be recorded what purported'to be ¡a deed of such real estate from the intestate to himself.</p> <p>The complaint further alleged, first, that the pretended deed had been forged; second, that it was never delivered; third, that if it was the deed of the intestate and had been delivered, it was obtained through undue influence exercised by ■the defendant upon the-intestate.</p> <p>Held, that the complaint was demurrable because it contained no allegation that the plaintiff was in possession of the real estate, which was necessary to enable him to maintain an action to remove a cloud upon the title.</p> <p>That the complaint purported to state but a single cause of action, viz., one to remove a cloud from the title to land, and not three separate causes of action.</p>

Appeal by the defendant, the Schenectady Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 27th day of November, 1901, upon the decision of the court rendered after a trial at the Albany Special Term, enjoining the defendant from constructing a proposed street railway in the street upon which the premises of the plaintiffs abut. .

Appeal by the plaintiff, Ida Allen, from a judgment of the • Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 21st day of December, 1900, upon the dismissal of the complaint by direction of the court after a- trial at the Albany Trial Term. .

Certiorari issued out of the Supreme Court and attested on the 29th day of March, 1901, commanding the defendant to certify and return to the office of the clerk of the county of Albany the accounts and evidence and all proceedings had in relation to the determination of the Comptroller of the State of New York in assessing a franchise tax against the relator for the year ending ■October 31, 1899.

<p>Railroad intersections — no appeal lies from an order appointing commissioners.</p> <p>Under section 12 of the Railroad Law (Laws of 1890, chap. 565), which provides that if two railroad corporations cannot agree upon the amount of compensation for making intersections or connections, etc., “the same shall be ascertained and determined by commissioners * * * as is provided in the Condemnation Law,” the defendant railroad company cannot appeal from an order appointing commissioners, as under the Condemnation Law the defendant can appeal only from a final order in the proceedings.</p>

Appeal by the plaintiff, William E. Melody, from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of' the county of Kings on the 31st day of October, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the complaint interposed by certain of the defendants. This appeal was transferred from the second department to the third department.

<p>Appeal by the plaintiff, Clayton H. Griswold, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chemung on the 13th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Chemung Trial Term ; the appeal is also stated to be from an order made at the Madison Special Term and entered in said clerk’s office on the 6th day of March, 1901, denying the plaintiff’s motion to vacate the aforesaid judgment; and notice is given of an intention to bring up for review, upon such appeal, a judgment entered in said clerk’s office on the 11th day of February, 1901, and also several orders entered in the action.</p>

Appeal by William E. Melody from an order of the Supreme 'Court, made at the Kings County Special Term arid entered in the office of the clerk of the county of Kings on-the 4th day of June, 1901, committing the said William E. Melody to the county jail of Kings county until he delivers to Jacob Brenner, all the books and papers appertaining and belonging to the office of commis sioner of jurors of Kings county, or until he is otherwise discharged according to law.

Appeal by the plaintiff, George Washer, from a judgment of the Supreme Court in favor of. the defendant, entered in the office of the clerk of the county of Franklin on the 18th day of April, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Franklin Trial Term, and also from an order entered in said clerk’s office on the 6th day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Emanuel ¡M. Hein and others, 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 12th day of October, 1901, denying the defendants’ motion to set aside the allowance of the undertaking tiled herein, and also from an order bearing date the 11th day of September, 1901, and entered in said clerk’s office, approving and allowing said undertaking.

<p>Eminent domain — measure of damages of an owner of a stum/page right\ in forest land taken by the State—determined by its market value at what place.</p> <p>Where the State of New York, by proceedings in invitum, takes a tract of woodland for the purposes of the Adirondack Forest Preserve, the measure of dam- • ages of a person who, under a contract with the owner of the fee of the land so taken, owned all the standing spruce and hemlock upon such land over a certain diameter, is the value of the spruce and hemlock owned by him as it was upon the stump, with interest on the amount from the time the same was-appropriated.</p> <p>If such property has no market value at the place of the appropriation, the measure of damages is its value at the nearest market place, less the expense-of removing it to such market place.</p>

Certiorari issued out of the Supreme Court and attested on the 8th day of June, 1901, directed to Erastus 0. Knight, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had in relation to the assessment of a franchise tax against the relator for the four years ending October 31, 1900.

<p> Nuisance—ordinance as to the hind of buildings which may be constructed in the fire limits of a city —a change therein must be made in the manner required thereby—right to remove buildings whiah'violate it. </p> <p>Ordinances and by-laws of a city prohibiting the construction or placing within the fire limits of any wooden building or building constructed of wood with a brick or metal veneer, and declaring a building erected contrary to such ordinances to be a public nuisance, enacted pursuant to express provisions of the original charter of the city, and recognized and approved by the revised charter thereof, have the same force and effect as an act of the Legislature, and the reasonableness of the prohibition is not open to question.</p> <p>A provision in such ordinance and by-laws that they shall not be “ abrogated, changed or suspended without the unanimous consent of the common council present at a meeting, unless the proposed alteration has been presented and held under consideration by a resolution of the common council at least two weeks before the final vote be taken thereon,” is binding upon the common council.</p> <p>Where the common council, without compliance with the quoted provision of the by-laws, p'asses a resolution providing that if a property owner who had made extensive repairs to a wooden building would place iron or steel siding thereon, she might remove the building to a foundation located oh another portion of her lot, and the property owner, with notice that the common council 'did not have authority to pass the resolution, removes the building to the new foundation, she is not entitled to recover damages from the city if the superintendent of streets of the city enters upon the premises and takes the building down.</p> <p>Houghton, J., dissented.</p>

Appeal by the plaintiff, Lydia A. Deagan, froih an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chenango on the 16th day of July, 1901, upon the decision of the court, rendered after a trial at the Broome Special Term, overruling the plaintiff’s demurrer to the counterclaim set forth in the defendant’s answer.

<p>Manufacturer of a gun—liability of , to one injured while using it its bursting does not establish such liability—for what use it must be suitable — expert testimony as to defects therein.</p> <p>The manufacturer of a gun is liable to a person, into whose possession the gun comes after having been owned and used by several other persons, for any damages resulting from the manufacturer’s negligence in using defective material’ or from want of proper care and skill in manufacturing it, even if no warranty accompanied the sale of the gun by the manufacturer.</p> <p>The mere bursting of the gun does not establish liability on the part of the manufacturer.</p> <p>The manufacturer is only required to make the gun suitable for use under the conditions, as to the kind of powder used, existing at the time it was put on the market.</p> <p>A barber, who had no experience with broken metals, except razors and shears and bicycles, and had seen only two broken gun barrels, and those when he was a boy in Italy, and knew nothing of the manufacture of guns or the composition of the metal of which gun barrels are made, is not qualified to testify as an expert upon the question whether there was a defect in the metal of the gun barrel which burst when the gun was fired.</p>

Appeal by Norman Cushman, individually, and Norman Cushman and-David Donaldson, as executors named in an instrument purporting to be the last will and testament of Mary Ann Campbell, deceased, from a decree of the Surrogate’s Court of the county of Franklin, entered in said Surrogate’s Court on the 24th day of October, 1900, denying probate of an instrument alleged to be the last will and testament of Mary Ann Campbell, deceased, on the ground that the execution of the same…

Appeal by the plaintiffs, Lucy Tacy and another, from a judgment of the County Court of Clinton county in favor of the defendants, entered in the office of the clerk of ■ the county of Clinton on the 19th- day of March, 1901, upon the decision of the court affirming upon appeal a judgment in favor of the defendants rendered by a justice of the peace dismissing the complaint.

Appeal by the defendant, James H. Rod bourn, as administrator^ etc., of Joseph Rodbourn, deceased, from a judgment of the Supreme Court in favor of the .plaintiff, entered in the office of the clerk of the county of Chemung on the 18th day of May, 1901, upon the decision of the court rendered after a trial at the Chemung Trial Term before the court, the jury having been discharged.

<p>Qotenants of et herd of cattle — one cotenant is guilty of conversion of the share of the other cotenant if he forcibly takes half the herd and, sells it — a person who . assists only in the taking is not guilty of conversion — objection of non-joinder must he by answer or demurrer.</p> <p>A tenant in common of a one-half interest in a herd of cattle in the possession of his cotenant, who, upon the refusal of such cotenant to consent to a division of the herd, forcibly breaks into the latter’s stable, sorts the cattle into two herds and, after offering to let his cotenant choose either herd, drives one of such erds away and sells it, is guilty of conversion and is liable to his cotenant for one-half of the value of the cattle so converted.</p> <p>A person who merely assisted in the original taking of the cattle by attempting to keep them together, but took no part in the forcible entry or in the sale of the cattle, is not liable to the cotenant.</p> <p>The objection, in an action for a trespass upon land, of the non-joinder of a cotenant of the land, is waived unless taken by answer or demurrer. (Felts v. OdlUns, 46 App. Div. 332, explained.)</p>

<p>Appeal by the plaintiff, Mary Potts, from á judgment of the. Supreme Court in favor of the defendant Fred N. Dounce, as executor, etc., of Ophelia C. Dounce, deceased, entered in the office of the clerk of the county of Chemung on the 20th day of June, 1901, upon the report of a referee.</p>

<p> Negligence—what proof that death resulted, therefrom is insufficient. </p> <p>In an action to recover damages resulting from the death of the plaintiffs intestate, which occurred about four months after she sustained a fall through the alleged negligence of the defendant, evidence given by the physician who attended the intestate, in answer to a hypothetical question, that there was a possibility that the fall produced the condition which resulted in her death, but that he could not state with certainty that it did produce such condition, and by a physician who, so far as appeared, had never seen the intestate, that he thought that the fall could and did produce the condition which resulted in the intestate’s death, is insufficient to warrant a finding by the jury that the fall produced the condition.</p>

Appeal by the defendant, Edward V. Loew, 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 23d day of September, 1901, denying said defendant’s motion to vacate an order for his examination before trial.

Appeal by the relator, the David Stevenson Brewing Company, 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 February, 1901, upon an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1901, dismissing an alternative writ of mandamus after a trial at the New York Trial Term.

Appeal by the defendant, Joseph A. Haas, otherwise known as. Joseph A. Hays, 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 9th day of October, 1901, denying the defendant’s motion to vacate an order of arrest theretofore-granted in the action.

Appeal by the plaintiff, William Csatlos, an infant, by John Csatlos, his guardian ad litem, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of December, 1901, granting the defendant’s motion to open its default.

<p>Appeal by the plaintiff, Matthew I. Fox, 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 13th day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of November, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, George H. Hard, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk ..of the county of New York on the 21st day of August, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling said defendant’s demurrer to the complaint.

<p>An order appointing a receiver of a, corporation signed, “ Enter, Wm. N. Cohen, <71 8. G,” by a judge at his residence in New York city—it takes effect when entered —payment by a bank of a note of the corporation before the entry of the order.</p> <p>An order granted in a proceeding for the voluntary dissolution of a corporation by a justice of the Supreme Court at his private residence in the city of New York and signed “Enter, Wm. N. Cohen, J. S. C.,” is an order of a court of record, and does not become operative so as to entitle the receivers appointed thereby to moneys of the corporation on deposit with a bank until it is entered in the county clerk’s office.</p> <p>Consequently where the hank, the day after the order is made, but before it has been entered in the county clerk’s office, applies the balance standing on its books to the credit of the corporation upon a note made by the corporation and held by the bank, which falls due on that day, the transaction is valid as against the receivers of the corporation.</p> <p>The title of the receivers will not be treated as relating back to the time at which the order was signed for the purpose of defeating rights acquired by a third party before the perfection of the orden</p>

Appeal by James Kilduff, assignee of the judgment herein, 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 27th day of July, 1901, denying his motion for the appointment of a receiver in supplementary proceedings.

<p>•JSnvploymeni of a firm to effect insurance — when a contract therefor is enforcible by an assignee and successor of the firm — evidence as to an increase in the insurance-rates.</p> <p>A contract by which a firm, one of the parties thereto, is employed to secure policies of fire insurance for the other party thereto, and which provides, “ It. is understood and agreed that all of the terms, conditions and covenants in this, agreement shall be and are binding upon all- the legal representatives, successors and assigns of all the parties hereto,” is assignable by the firm, and a person who claims both as assignee of the contract and as the successor of the firm , may maintain an action to recover damages for the breach thereof by the other party thereto.</p> <p>Where the alleged breach consists in the refusal to take and pay for policies of fire insurance, which the assignee of the firm has procured to take the place of existing policies, evidence offered by the defendant, that more than four months after such assignee had procured and delivered the policies the insurance rates were increased by a large number of fire insurance companies, is not. admissible.</p>

<p>Mortgage — what act of a mortgagee, in dealing with a grantee of mortgaged, premises who 7ias assumed the mortgage, releases the mortgagor—right of the mortgagor-to show the value of the mortgaged premises acquired, by the mortgagee and to have-such sum a/pplied in payment of the mortgage.</p> <p>In an action brought to recover upon a bond which accompanied a purchase-money mortgage for $2,000 it appeared that the plaintiff sold Certain premises-to the defendants for $21,000, subject to a $15,000 mortgage, and took back to-secure part of the purchase price the bond and mortgage in suit; that the-defendants sold the property to one Bryant, subject to the two mortgages, both of which Bryant assumed and agreed to pay; that the plaintiff was-informed of the sale, and that Bryant had assumed the payment of the mortgages; that thereafter Bryant died intestate, and that an action was brought to-partition the property; that the plaintiff was made a party to the partition suit, but that the defendants were not; that the plaintiff, whose mortgage was not-then due, consented that it be treated as if it were due, and that the premises-be sold free from the lien of such mortgage; that the premises were sold free- and clear of the lien of plaintiff’s mortgage and were purchased by him; the-order confirming the referee’s report of sale permitted the referee to pay to-the plaintiff “ so far as such balance will be sufficient for him to do so, the-principal sum of $2,000 secured by the mortgage * * * and * * * upon receiving such payment the said defendant, John Laird, execute and. deliver * * -- a receipt therefor and a release or discharge of said mortgage * * * such release * * * without prejudice to any claim or right of action of the said John Laird for-any amount which after such payment may remain unpaid upon the bond heretofore secured by his said mortgage.”</p> <p>The plaintiff executed a waiver of the recording of any satisfaction piece of the second mortgage, stating that he “being now the owner and holder, desires to-keep said mortgage in force.”</p> <p>It further appeared that the plaintiff received $395.16 out of the proceeds of the-sale in part payment of his mortgage.</p> <p>Held, that the act of the plaintiff in arranging with the Bryant estate, after having notice that it was the principal debtor, that his mortgage should be considered as immediately due and should not be. enforced against the estate, and in releasing the land from the mortgage, thereby discharged the defendants;</p> <p>That it was competent for the defendants to show what the property was actually worth and to that extent to have it applied, pro tanto, in payment of the= mortgage debt.</p>

Appeal by the plaintiff, Joanna M. Copeland, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of June,. 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 defendant, Bertha Wolkenberg, 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 tth day of November, 1901, denying the defendant’s motion to cancel a notice of lis pendens filed by the plaintiff in the action.</p>

Appeal by the contestants, William. H. Oakley and another* from portions of a decree of the Surrogate’s Court of the county of Yew York, entered in said Surrogate’s Court on the 29th day of May, 1901, settling the accounts of Charles S. Oakley, as executor, etc., of William H. Oakley, deceased, and directing payment of the net income of the trust estate of said testator to Louise S, Berlin.

Appeal by the defendant, the Goodyear Shoe Machinery Company of Portland, Maine, 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 21st day of June, 1901, upon 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 20th day of June, 1901, directing that the plaintiffs have judgment against the defendant upon the…

Appeal by the defendant, Herbert J. Truesdell, from an interlocutory judgment of the Supreme Court in favor of the plaintiff* entéred in the office of the clerk of- the county of Hew- York on the 7th day of May, 1961, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling, á demurrer to the complaint, • • ., .

<p>Marketable title—encroachment of a building two and one-half inches upon an adjoining lot — tender, with the deed,, of a conveyance of the use of such two and one-half inches while the buildings stand, in which a mortgagee thereof does not join — effect of the destruction of the building on the adjoining lot — one-yea/r Statute of Limitations order of publication with a Special Term, caption, when-a judge’s order.</p> <p>Where the vendor in a contract for the sale of a city lot has a marketable title to. all of the land which he contracted to convey, but a portion of the fence and wall and building erected upon the land encroaches upon the adjoining lot for a distance of two and one-half inches, the existence of the encroachment does; not justify the vendee in rejecting the title, when-the vendor at the time fixed for closing the title tenders to the vendee an instrument by which the owner of the adjacent property grants to the vendor the right to use the strip encroached upon, “during the period of the existence of said structures as they now stand.”</p> <p>' The destruction of the building erected on the adjoining owner’s property would not terminate the right to continue the encroachment.</p> <p>The fact that at the time the adjoining owner executed the release his premises were subject to a mortgage, and that the mortgagee did not join in the instru ment, does' not render the release ineffective, it not appearing that the mortgage was about to be foreclosed.</p> <p>Section 1499 of the Code of Civil Procedure, providing that an action to recover possession of premises cannot be maintained “where in any city the real property consists of a strip of land not exceeding six inches in width, upon which there stands the exterior wall of a building erected partly upon said strip and partly upon the adjoining lot, and a building has been erected upon land of the plaintiff abutting on the said wall, unless said action be commenced within one year after the completion of the erection of such wall, or within one year after the first day of September, eighteen hundred and ninety-eight,” is constitutional and removes any question concerning the title to the premises.</p> <p>The fact that an order for the service by publication of a summons in an action of partition had a caption apparently showing that it had been granted at the Special Term, and was signed with the initials of the judge with a direction to enter, does not make it any the less a judge’s order within the provisions of the Code of Civil Procedure.</p>

<p>Appeal by the plaintiff, Richard Clay Sibley, 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 3d day of September, 1901, granting the defendant’s motion for the reduction of bail required to be given by an order of arrest.</p>

Appeal by the defendant, Joseph A. Flynn, 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 6th day of December, 1900, upon the verdict of a jury for §741.66, and also from an order entered in said clerk’s office on the 12th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles H. Tolhurst and others, from an interlocutory 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 22d day of July, 1901, upon the decision of the court, ' rendered after a trial at the Yew York Special Term, sustaining the plaintiffs’ demurrers to certain defenses contained in the answers ofothe defendants.

<p>Appeal by the plaintiff, Charles Johnson, an infant, by Andrew Johnson, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 18th day of October, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Moses H. Moses, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 27th day of August, 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 28th day of August, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>. Appeal by the defendant, Max Schwartz, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 21th day of May, 1901, upon the verdict of the jury, and also from an order entered in said . clerk’s office on the 29th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Insurance—fire caused by negligence — subrogation of the insurance company to tin right of action of the insured — the action by the insurance company is nofi^^ triable at Special Term—what is negligence in testing a gas pipe — agency of the workman.</p> <p>A fire insurance company, which pays a loss occasioned by the negligence of a third person, thereupon becomes subrogated to the insured's right to bring an action against the third person to recover the damages resulting from such negligence.</p> <p>The fact that .the insurance company obtained by subrogation its right to maintain the action does not change the character of the action and make it one triable at a Special Term.</p> <p>A gas company which undertakes to make an additional connection on the premises of a consumer, whether for a direct compensation or for the indirect benefit that it would receive in consequence of the increased use of gas, assumes the obligation to provide a skilled workman to perform the work and to use in making the connection ordinary care and prudence commensurate with the work to be done and the dangers arising from the situation and conditions surrounding it, and for a failure thus to carefully perform the work the gas company is liable for any injury sustained by the consumer therefrom.</p> <p>Where the connection was made in a picture gallery, the walls of which were covered with pictures hung upon a cotton flannel substance, and the workman, after unsuccessfully trying to discover the whereabouts of a leak in' the pipe by his sense of smell, passed a lighted match along the pipe with the result that the gas ignited at a point about two and one-half inches from the wall where there was a small leak made by a sandhole in the pipe, and the flame communicated to the cotton flannel on the wall, the question whether, considering the location of the pipe' and the material that surrounded it, the workman was negligent in using a lighted match to look for the leak, is one of fact for the jury.</p> <p>In such a case the workman is the agent of the gas company and not of the consumer.</p>

<p> Commission to take the deposition of witnesses without the State—what affidavit is sufficient. </p> <p>An affidavit made in an action for an accounting, between the members of a copartnership existing and doing business in Pennsylvania, in which the attorney for the plaintiff swears that certain witnesses (naming them) reside in the State of Pennsylvania, and are not within the State of New York, and are material witnesses to prove the allegations of the complaint; that all the persons interested in said copartnership and all persons familiar with the facts in regard thereto are residents of the county of Luzerne, Penn., except one of the defendants; that the sources of deponent's information and the grounds of his belief are interviews and correspondence which he has had with various persons named living in Luzerne county, is sufficient, under sections 887 and 888 of the Code of Civil Procedure, to warrant the granting of an order for the issuing of a commission to take the testimony of the witnesses upon interrogatories annexed to the commission.</p>

Appeal by the defendant, The Hampton and Branchville Railroad and Lumber 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 23d day of September, 1901, denying the defendant’s motion to vacate an attach on the papers upon which it was granted.

Appeal by the defendant, Samuel A. Demarest,. as executor, etc., of Julia M. Traver, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the Tth day of August, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to the amended complaint.

Appeal by the defendant, Margaretha Koenig, as executrix, etc., of John H, Koenig, deceased, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of December, 1900, which reversed an order of the General Term of the City Court of New York, entered in the office of the clerk of said court on the 18th day of July, 1900, reversing an order granted by the Special Term of the City Court of New York.

<p>Action at laio — the court cannot discharge the jury and itself decide the case.</p> <p>In an action at law the court has no power against the objection of either party to discharge the jury and in its absence pass upon the questions presented. If. the evidence conclusively establishes the right of either party to recover, the court should direct a verdict but cannot properly dismiss the jury and decide the case itself.</p>

<p>Appeal by the plaintiff, Jennette Cameron, from an interlocutory 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 April, 1901, upon the decision of the court, - rendered after a trial at the New York Special Term, sustaining a demurrer to the complaint.</p>

<p>Appeal by the defendants, Elizabeth M. Bunting and another, ■as executrices, etc., of Ella F. Bunting, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of June, 1901, upon the verdict of a jury rendered by direction of the court..</p>

Appeal by the defendants, William Wagner and another, from, an order of the Supreme Court, made at the New York Special.

Appeal by the plaintiff, Henry R. C. Watson, 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 28th day of Hay, 1901, upon the verdict of a jury rendered by direction of the court, adjudging the. defendant to be the owner of certain real property. The action was brought under section 1638 of the Code of Civil Procedure, to determine ■ the title to real estate.

<p> Agreement between the stockholders of a corporation, giving to each the first right to pwchase the stock held by the other in case such other desired to sell or of . his death—it will be specifically enforced against their executors—it is not a wager contract. </p> <p>A contract made between four persons, who were the sole parties interested in a corporation, by which each of the parties gave to another party a first option to purchase his shares of stock at a certain price whenever he desired to sell, tibe party to whom the option was given to have thirty days after notice in which to accept or decline the option, and by which each party gave to another a similar option in the event of his death, except that the thirty days should not begin to run until the date of the issuing of letters testamentary or of administration, and which conferred upon the other parties the privilege of exercising such option in case the party to whom the first option was given failed to ■accept it, is valid, and the court will, in the event of the refusal of the executors of a deceased party to transfer the stock of their testator in pursuance of the contract, direct its specific performance.</p> <p>The mutual stipulations of each party constitute a sufficient consideration for the contract.</p> <p>Such a contract is not void as being a wager upon the life of a party and interfering with the devolution of the property by will, or as prohibiting the alienation of the stock.</p>

Appeal by the defendant, Michael McCabe, individually and ■ as. administrator, etc., of John McCabe, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered ins the office of the clerk of the county of New York on the 20th day of May, 1901,. upon the decision of the court, rendered after a trial at the New York Special Term, overruling said defendant’s demurrer to the complaint.

• Appeal by the defendant, John Jacob Astor, from an interlocutory judgment of the Supreme Court in favor of - the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrér to the complaint.

<p>Juibel — the statement “a general aa/reless manner of attending to our business” — it ■does not charge an employee with being unfit, unskilled and incompetent—notice that “ Louis Ratzel is no longer in the.employ" of a newspaper publishing company is not libelous.</p> <p>A circular sent by a newspaper publishing company throughout the advertising community, containing a notification of the discharge of a number of persons on the business-staff of the newspaper, stating: “ The reason of the change was a general careless manner of attending to our business. Their places will he filled with competent parties who will attend to our affairs in a more businesslike manner,” is not open to the construction that it charged the discharged •employees with being unfit, unskilled and incompetent in their trade and was consequently libelous as tending to injure them in their trade, business or calling.</p> <p>.A notice published in the newspaper conducted by the corporation, stating, “Louis Ratzel is no longer in the employ of the Hews Publishing Company, and has no connection whatever with the Daily News," is not libelous, as it is not only privileged but is the statement of a fact.</p>

<p>Negligence—an infant of four years rundown by a street ca/r while walking'with his father—charge as to the defendant’s liability for negligence, without reference to. that of the father.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, an infant four years of age, who was conceded to be non sui juris, in consequence of his being, through the alleged negligence of the defendant, run down by one of the defendant’s horse cars while walking by the side of his father, who was wheeling another child in a baby carriage, across the defendant’s tracks, it is error for the court, when asked to charge: “ If you find that the plaintiff could have crossed the street and avoided the car but for the carelessness of the ■defendant’s driver and his impetuous driving, you must find for the plaintiff,” to reply: “I charge that with this statement, that I leave it to you to-say whether or not. there was impetuous driving. That is a matter for you to ■determine,” as the charge eliminated the question of the contributory negli.génce of the plaintiff’s father.</p>

Appeal by the defendant, The Third Avenue Railroad Company from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the 1st day of April, 1901, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 14th day of May, 1901, denying the said defendant’s motion for a new trial made upon the minutes.