Volume 67 — New York Supplement

Action by Charles S. Clark against the Cliff Paper Company. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

Action by the Putnam Foundry & Machine Company against Percy B. Young. From a judgment of the county court reversing a justice’s judgment in favor of defendant, defendant appeals.

<p>1. Sales—Warranty—Acceptance of Machine.</p> <p>A contract £or the sale of a threshing machine contained a warranty of the machine, which required the purchaser to give it a trial, and to give the seller notice of any defect, and an opportunity to remedy the defect or substitute another machine. The purchaser used the machine a few days, and returned it, and notified the seller that it was unsatisfactory, and refused to give it a further trial, though requested to do so by agents of the seller, who promised to remedy any defect. The purchaser swore that when the machine was started he told an agent of the seller that it ran too hard, and worked too slow, and that he requested the agent to stay with him, which the agent denied; and the latter swore that the machine did good work, and that the purchaser was satisfied with it, but that the purchaser’s engine was poor and defective. The contract required the purchaser to use an engine making 200 revolutions per minute,' and it was doubtful if the purchaser’s engine did so. The trial court found that there had been a breach of warranty in the machine failing to thrash out all the grain, but the seller was not notified of such defect. Eeld, that the conduct of the purchaser constituted an acceptance of the machine, and had waived alleged defects.</p> <p>2. Witnesses—Impeachment.</p> <p>Where a witness is not first interrogated concerning inconsistent statements made out of court, it is error to admit evidence of such statements.</p> <p>On the 19th day of June, 1899, defendant, who was a grain thresher, signed and delivered to an agent of plaintiff an order, which was subsequently accepted by plaintiff, of which the following is a copy:</p>

<p>Appeal from trial term, Lewis county.</p> <p>Action by Talcott Wells against William H. Johnston and another. From a judgment for plaintiff, defendants appeal.</p>

Action by Franklin D. Tower against Edward McC. Blessing. From a judgment of the county court affirming a judgment of the city court of Albany in favor of the defendant, plaintiff appeals. Appeal by the plaintiff from a judgment of the county court of Albany county, entered in the clerk’s office of that county on March 20, 1900, affirming a judgment of the city court of Albany entered upon the verdict of a jury in favor of the defendant.

Action on contract by William Dunn against Henry C. Allen and .another. From a judgment in favor of plaintiff, and from an order overruling a motion for a new trial, defendants appeal.

Action by Harvey J. Hurd and another against George Wing. From a judgment of the supreme court affirming a judgment for plaintiffs in the municipal court, defendant appeals.

_ Application for mandamus by the people, on the relation of William Gaffigan, against Le Roy Rickerson, as comptroller of the city of Troy, directing him to pay relator a salary draft for services as janitor, issued by direction, of the board of school commissioners of the city of Troy. From an order directing a peremptory mandamus to issue, defendant appeals.

<p>Appeal from judgment on report of referee.</p> <p>Suit by Hannah M. Corbin and others against John O. Baker. Prom a judgment in favor of plaintiffs, defendant appeals.</p>

Action by Henry H. Lyman, as state commissioner of excise, against George H. Mead and another. From a judgment dismissing the complaint, plaintiff appeals.

<p>Master and Servant—Injuries—-Contributory Negligence—Submission to Jury.</p> <p>A foundry hand employed as a molder’s helper was injured while operating a crane used for hoisting flasks by having his Anger caught in a cogwheel and cut off. The “dog” used for holding the weight when raised to the desired height had been gone for about a year, its place being supplied by inserting an iron spike in the cogwheels. Plaintiff had worked for defendant about eight years, part of the time as a molder’s helper, but in another shop, where the cranes were operated differently, and had never seen this particular crane operated before. He was suddenly called to assist a molder in raising a flask, and when it was raised sufficiently was told to stop it, “and put something there,—a piece of iron or nail,—and stop.” In endeavoring to do so, plaintiff in some way caught his finger in the cogwheel, and it was cut off. He had no instructions regarding the machine. Held, in a suit for the injury, that the question whether plaintiff was guilty of contributory negligence should have gone to the jury.</p>

<p>Appeal from trial term.</p> <p>Action by Daniel J. McOleary against the Malcom Brewing Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Abram Goodman against Moses Crystal and another. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.</p>

<p>Parties—Intervention—Subject of Action.</p> <p>Code Civ. Proc. §’ 452, cl. 2, authorizing a person having an interest in the subject of an action, the title to which may be affected by the judgment, to intervene, is not limited to a case where specific property is the subject of the action, but authorizes intervention in an action to recover a debt in which intervener claims an interest.</p> <p>Van Brunt, P. J., and Ingraham, J., dissenting.</p>

<p>False Imprisonment—Evidence.</p> <p>In a suit for false imprisonment, it appeared that defendant’s pay car had been robbed in Canada, and that, on application of defendant, a warrant was issued for plaintiff’s arrest, but it did not appear what became of such proceedings; that thereafter a policeman of New York City received a Canadian warrant for the arrest of plaintiff, and that he was arrested, and confined several days, and discharged without examination. Subsequently he was arrested in extradition proceedings, and discharged. The Canadian warrant was not shown to be the one issued at the instance of defendant, nor did it appear what warrant the arrest was made under. Held that, there being no proof that defendant was connected with the issue of the Canadian warrant, or the first arrest, or the arrest in extradition, the complaint was properly dismissed.</p>

Action by John Sheridan and another against John Davis and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed unless plaintiffs shall stipulate to reduce the amount recovered to $100.

Action by Thomas J. Burton, as administrator of the estate of Lizzie J. Burton, deceased, against Charlotte S. Burton, as executrix of the will of J. C. Burton, deceased, to recover the proceeds of a life insurance policy. Judgment for defendant.

Application by Edward A. Hayes for alternative writ of mandamus to compel the comptroller of the city of New York to reinstate the relator as an expert accountant. From an order denying the writ, relator appeals.

<p>Appeal from judgment' on report of referee.</p> <p>Action by Henry Chaurant against Henry Maillard. From a judgment in favor of defendant, plaintiff appeals.</p>

Sequestration proceedings by Stephen A. Fallon against the Egberts Woolen-Mills Company. J. Sheldon Frost, receiver, applied, for an order to stay proceedings against him brought by Frederick Vietor & Achelis. Motion granted (64 H. Y. 'Supp. 466), and Vietor & Achelis appeal. In June, 1897, an action was brought to sequestrate the property of the defendant corporation. In that action J. Sheldon Frost was appointed temporary receiver.

<p>Appeal from trial term, Orange county.</p> <p>Action by Minnie McConnell Lawson against William H. Lawson and another. From a judgment in favor of plaintiff, defendants appeal.</p>

<p>.Appeal from trial term, Orange county.</p> <p>.Action by Gilbert E. Mapes against Union Railroad Company of ¡New York City. From a judgment dismissing his complaint, plaintiff appeals.</p>

Action by the Industrial & General Trust, limited, against J. Kennedy Tod and others. From an order overruling exceptions to the sufficiency of the surety on an undertaking to stay execution of a judgment pending appeal to the court of appeals, and approving such undertaking, plaintiff appeals.

Injunction by Henry Youngs and others against Patrick J. McDonald. Judgment for defendant. From an order overruling plaintiffs’ exceptions to the report of a referee fixing defendant’s damages in consequence of a preliminary injunction, and confirming such report, plaintiffs appeal.

Action by Henry Irwin against Charles Curie to recover money alleged as due under a contract. From a judgment for defendant, plaintiff appeals.

<p>Appeal from special term, New York county..</p> <p>Action by Michael Brennan against Thomas B. Gale. From an interlocutory judgment ordering an accounting, defendant appeals.</p> <p>Affirmed.</p>

Injunction by Edward A. Kerbs and others against Nathan Rosenstein and others. Prom an order vacating a preliminary injunction (66 N. Y. Supp. 42) plaintiffs appeal.

Suit by Adam Riedeman against the Mt. Morris Electric Light Company to enjoin a nuisance and recover damages. From a judgment for plaintiff, defendant appeals.

<p>.Injunction—Equitable Relief—Damages—Jury Trial.</p> <p>Where the tenant of premises sued to restrain the operation of a neighboring electric light plant on the ground that it was a nuisance, and for damages, and when the case came on for trial it appeared that plaintiff was not entitled to an injunction by reason of his having removed from the premises, defendant’s motion that the case he sent to a jury should have been granted, since, there being then no grounds for equitable relief, the action became one for'damages, in which defendant was entitled to a jury.</p>

Appeal irom trial term, Hew York county. Action by Francis Groarke against George Laemmle for injuries sustained by plaintiff’s infant son through defendant’s alleged negligence. From a judgment for plaintiff, defendant appeals.

Proceeding by the village of St. Johnsville against Charles Cronk, impleaded with others. From an order modifying the clerk’s taxation of costs, defendant appeals. A petition was presented to the special term of the supreme court by the-village of St. Johnsville, in 1899, for the condemnation of certain real estate for public use. No answer was served. No reference was ordered. Commissioners were appointed to assess damages. No offer of any sum was made by the petitioner.

Action by William Wessel against Christian C. Cramer for specific performance of a contract to convey land. From a judgment in favor of plaintiff, defendant appeals.

Certiorari by the people, on the relation of Patrick McCollum, to review the action of John J. Scannell as fire commissioner, etc., in dismissing relator from the fire department of the city of New York.

Action by W. R. Campbell against Joseph Z. Culver and others. From a judgment for defendants, plaintiff appeals. This action was commenced in the municipal court of the city of Rochester on the 1st day of May, 1899, to recover damages which it is alleged were sustained by the plaintiff’s assignor, Sarah A. Fox, arising from the neglect of the defendants to perform a certain agreement entered into between them and Mrs. Fox in the year 1886.

<p>Pleading—Bill of Particulars.</p> <p>In an action on a contract, an answer to an allegation of performance, stating that plaintiffs have failed to perform the conditions of the contract, is a general denial, and does not entitle plaintiffs to a bill of particulars showing wherein they failed to perform the conditions.</p>

Action by the Standard National Bank and another against the Garfield National Bank, impleaded with others. From a judgment in favor of plaintiffs (63 N. Y. Supp. 312), both parties appeal.

<p>Appeal from special term, Kings county.</p> <p>Actions by Augusta A. Meislahn, Henrietta Pimie, and Emma 1). Schuleman against Albert Meislahn and another, as executors. Prom judgments for plaintiffs, defendants appeal.</p>

<p>Appeal from trial term, Orange county.</p> <p>Action by Malachi Farrell against the city of Middletown. From a judgment for defendant, plaintiff appeals.</p>

<p>Agency—Competency of Evidence.</p> <p>• In an action against a father for goods sold to the son, a question put to plaintiff by his counsel, “Do you know defendant’s son, who managed the store for him?” and the answer thereto, were incompetent to support the theory that the son acted as agent for the father.</p>

Action by Thomas P. Wilson against the ¡Nassau Electric Railroad •Company. From a judgment in favor of plaintiff and an order denying a.motion for a new trial, plaintiff appeals.

Action, by Peter Holler against Lucy Watts and others to foreclose a mortgage. From an order of the special term setting aside the sale under the decree of foreclosure, and directing a resale, plaintiff and the purchaser at such sale appeal.

<p>Appeal from trial term.</p> <p>Action by William H. Smalley against the Yonkers Electric Light & Power Company. From a judgment in favor of the plaintiff, and from an order denying a motion for new trial, the defendant appeals.</p>

Action by Sebastian Wahl, by George Wahl, his guardian ad litem, against John Chatillon & Sons. From a judgment dismissing the complaint on the merits, plaintiff appeals.

<p>Landlord and Tenant—Relation—Contract to Convey—Lease—Merges— Recovery op Possession.</p> <p>Defendant, desiring to purchase land, entered into a written agreement with petitioner, a building loan corporation, by which petitioner granted, demised, and let, and defendant hired and took, the premises in question, for a term necessary to mature defendant’s stock in petitioner at a specified monthly rent, which included all interest and dues on stock. Petitioner agreed that at the maturity of the stock it would' convey the premises to defendant. It was further agreed that on default in payment of rent or otherwise, or in performance of any. covenant, petitioner might re-enter, and that the full purchase price should become due, and that petitioner should have all the rights of a landlord. Held, that petitioner was entitled, on default by defendant, to maintain summary proceedings' to recover possession, since the agreement to convey at the end of the term did not effect a merger of the lease, which was plainly entered into by the parties.</p>

Action by Robert Wilson, an infant, by Emma Brown, guardian ad litem, against the American Steel & Copper Plate Company. From an order of the special term denying defendant’s motion for a bill of particulars, it appeals.

<p>Appeal from trial term, Kings county.</p> <p>Action by William O’Leary against John Muldoon for injuries 'received through the negligence of defendant’s servant. 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.</p> <p>Action by Alfred Carlson against Augustin Walsh for personal injuries arising while in the employment of the defendant. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.</p>

<p>1. Railroads—Injuries at Street Crossing—Negligence—Questions for Jury.</p> <p>A group of tracks crossed, a street, the first being 36 feet from the second, and the second and remaining tracks being about 7 feet apart. Plaintiff, an experienced brakeman, testified that as he approached the crossing a freight train was standing on the fourth track, extending several hundred feet on either side of the street; that he, with others, crossed the intervening tracks, and, while waiting for the train to start up, another freight train moved in on the second track behind them, and stopped, hemming them in; that after they had stood there several minutes an engine backed up “middling fast” on the third track, on which they stood, and to escape being run down they climbed over the bumpers, and attempted to pass between the cars of the first train, which suddenly started up, and plaintiff was injured. Plaintiff had inquired of a brakeman on the train how soon it would start up, and he had answered, “I don’t know; jump on; jump across, if you are in a hurry.” Plaintiff was in a hurry, but testified that he did not attempt to climb through for several minutes thereafter, and not until he saw the engine approaching, and then only to escape the danger; and he was corroborated by two other witnesses. Reid, that there was sufficient evidence to go to the jury on the question of his contributory negligence, notwithstanding he had made conflicting statements soon after the injury, and was contradicted by several witnesses.</p> <p>3. Same—Instructions.</p> <p>The court having recited the substance of plaintiff’s claim as to how the accident happened, and of defendant’s claim, and of the testimony of the witnesses, and left it to the jury to say, on the entire evidence, whether or not plaintiff was free from contributory negligence, defendant could not complain of any failure to submit specifically the question of plaintiff’s contributory negligence in permitting himself to be hemmed in by the second train, having made no objection nor requested the submission of other propositions.</p> <p>8. Same.</p> <p>Notwithstanding plaintiff was negligent in getting into such dangerous situation, yet being in plain view of the employés operating the engine, and his danger being necessarily apparent to them, they were negligent in backing the engine down bnto him, and the company was liable for any injury resulting, either directly or indirectly, from plaintiff’s attempt to escape.</p> <p>Williams and Laughlin, JJ., dissenting.</p>

<p>Appeal from special term.</p> <p>Action by the Aultman & Taylor Company against Frederick J. Syme. From an order setting aside an execution, as issued more than five years after judgment, plaintiff appeals. ■</p>

Action by Robert J. Smith against the Lidgerwood Manufacturing Company for personal injuries received by the plaintiff while in the employ of the defendant. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Injunction—Building of Turnpike—Delay in Tide—Damage.</p> <p>Where defendant has received full approval from the federal authorities to erect a turnpike road with certain bridges and spans across a bay in which the tide ebbs and flows, the fact that such structure will delay the movement of the high tide for some minutes is not ground oh which to enjoin the construction of such road, in the absence of a showing that such delay will damage the property lying on or underneath such bay.</p>

<p>Husband and Wipe—Separation—Necessaries—Medical Treatment.</p> <p>A father of a child which has been given medical treatment by a physician at the mother’s request is liable therefor, where such mother and father have not separated, though they live apart, since, by leaving the child with the mother, the father constituted her his agent to procure necessaries for it.</p>

Action by .Virginia Stuart Mackay Smith and others against Alexander Crawford and others. From a judgment dismissing the complaint after trial at special term, plaintiffs appeal.

Two actions by Amelia Gorman, executrix of John J. Gorman, deceased, against Daniel E. Finn and others. From a judgment on verdict for plaintiff, and from orders denying motions for new trial, defendants appeal.

Action by Maria McBride against the city of New York. From a judgment for plaintiff on decision of. the court, a jury having been waived, defendant appeals.

Action by Gustav Zingrebe against the Union Railway Company of New York City. From a judgment in favor of the plaintiff and an order. denying a motion for a new trial, defendant appeals.

<p>Appeal from municipal court, borough of Brooklyn, First district.</p> <p>Action by Martin Foley against Edward J. McKeever. From a judgment in favor of defendant, plaintiff appeals.</p>

Action by Harriet B. Harmon and another, by their guardian ad litem, against Cornelius H. Van Ness, individually and as executor and trustee, and others. From an order denying a motion to change the place of trial from New York county to Orange county, said defendant Van Ness appeals.

Action by David Thomson, trustee of the estate of Benjamin Lord, deceased, against the American Surety Company of. New York. From a judgment awarding plaintiff six cents only as damages, entered on the report of a referee, plaintiff appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Thomas Nelson against Edward S. Hatch, impleaded, and others. From a judgment dismissing the complaint, entered on report of referee, plaintiff appeals.</p> <p>Lilyon B. Daniels brought an action against William B. Daniels in the county court of Arapahoe county, Colo., to annul a decree of divorce which she alleged was obtained-by him against her by fraud. Owing to the death of Mr. Daniels, that suit abated, and early in 1891 she commenced an action in equity in the United States district court for the district of Colorado against W. C. Daniels, son and principal legatee, and against the executors and trustees, of her said husband's estate, seeking to recover, as his surviving widow, one-half of his estate, valued at upwards of $2,000,000. By an agreement between her and the firm of Hatch & Warren, these defendants, dated" February 20, 1891, these facts are recited, and also that she desired to obtain the personal services of Lyman E. Warren; that she has no means to pay expenses and disbursements of counsel and witnesses necessary for the proper conduct of said litigation, and she assigns 30 per cent, of her alleged claims to the firm of Hatch & Warren, who are attorneys and counselors of the supreme court of the state of New York, and appoints Lyman E. Warren, of such firm, her attorney therein, with limitation upon his authority to compromise the claim. In consideration of this agreement, Hatch & Warren agreed to prosecute said claim with diligence and dispatch; furnish the personal services and best efforts and skill of Lyman E. Warren, as her attorney, when necessary, wheresoever required, for such periods as should be necessary fully to complete the object and terms of the said agreement. The contract also provides that the firm of Hatch & Warren shall, in consideration of the agreement, advance and pay all moneys necessary for the purpose of carrying out the contract, and assume and make provision for obtaining- the money so long as they continue the prosecution of the case, and exonerates Mrs. Daniels from any and all such payments or advances so made by Hatch & Warren. “Disbursements” are defined in the contract to mean and include railroad bills, hotel bills, moneys advanced to witnesses or counsel, and all expenses in any way connected with the prosecution of the claim. Hatcli & Warren were to have the right to withdraw from the agreement, in which event they were to have a lien upon the interest of Mrs. Daniels in her said husband’s estate, to the extent of the disbursements made by them in performance of the contract. On the 27th day of February, 1891, Hatch & Warren, as such attorneys at law and as partners, as parties of the first part, made an agreement with Thomas Nelson, the plaintiff herein, as party of the second part, by which, after reciting that Hatch & Warren had made an agreement to render services and obtain the necessary money for the performance thereof (a copy of which agreement was annexed to and made a part of said agreement), and that Hatch & Warren had agreed to transfer to second party, Nelson, a certain share of their said contract with Mrs. Daniels, in consideration of which Nelson had agreed to pay certain sums for the purpose of enabling them to carry out said contract, and for the purpose of paying expenses and disbursements to be incurred in the execution thereof, it was therein agreed that Nelson should pay certain sums, as follows: On or before the 1st day of March, 1891, $3,000; on or before April 15, 1891, $1,000; on or before May 15, 1891, $1,000; and such other sums as may be desired by parties of the first part, not to exceed $5,000 more; to be drawn in sums not to exceed $1,000 each; the first $1,000 not to be required before June 25, 1891, and the remaining several sums of $1,000 not to be payable until after 30 days’ written notice to said Nelson. And, in consideration of such payments being made as before stated, the parties of the first part transfer to said Nelson an undivided one-half interest in the contract with Mrs. Daniels, and of any and all money and property that they may derive or receive under said contract, except disbursements. Plaintiff advanced to said Hatch & Warren upon said contract up to October 1, 1891, sums of money aggregating $7,000. This money was turned over to Mr. Hatch. On the 14th day of October, 1891, plaintiff received notice of that date, signed “Hatch & Warren,” written by Hatch, requiring another payment to be made on the agreement on or before November 14, 1891. Nelson was informed by Mr. Warren, with whom his interviews and negotiations had been had, who told him that the money was not needed, that he need not pay any more until he heard from him. Subsequently a communication written by Hatch, and signed “Hatch & Warren,” was received by plaintiff, which stated that because of his failure to pay the $1,000 due on the 14tli of November, 1891, Hatch & Warren claim that “the otherwise provided assignment mentioned in contract” of 27th of February, 1891, has become void and of no further effect. On receiving this, plaintiff went to the office of defendants, showed Warren the communication, anfl asked him what it meant, in response to which Warren told him to give himself no uneasiness about the matter, that he was all right, that there was no necessity for any other payments, and that he could rest easy upon that subject. No subsequent demand was made upon the plaintiff. The claim of Mrs. Daniels against her husband’s estate was never prosecuted to judgment by the defendants, it is claimed, principally, because Hatch & Warren failed and refused to furnish the necessary funds to meet disbursement s. By letter on September 27, 1892, the defendant Warren notified Mrs. Daniels that the firm of Hatch & Warren had been dissolved, and that he withdrew from the provisions of the contract made between Hatch & Warren and herself, and “declared the same terminated and ended.” Mrs. Daniels immediately thereafter notified Hatch & Warren that their contract with her was at an end, and they must no longer meddle with her affairs. Thereafter the plaintiff addressed a communication to the defendants, alleging their failure to cany out. the contract with Mrs. Daniels, and demanding that they should pay back the moneys received from him. To this Hatch replied, stating, among other things, that Hatch & Warren had never refused to pay necessary expenses for the prosecution of Mrs. Daniels’ claim, hut had always performed, and been ready to perform, their contract with her and with plaintiff. At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint, which was denied; but, after hearing all the testimony, judgment was directed dismissing the complaint, with costs.</p>

<p>Appeal from certificate of reincorporation under the village law.</p> <p>Matter of reincorporation of the village of Sag Harbor. Appeal from a certificate that the proposition for reincorporation under the village law was carried.</p>

Action by Michael Brady against the Metropolitan Street-Railway Company for personal injuries. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>1. Pleading—Issues.</p> <p>A petition set out as a basis of action an order of court for a mandamus and the writ. The answer contained no general denial, but set out certain defensive matter, and denied every allegation of the complaint contrary to what was alleged in the answer. Eeld, that there was no denial of the averments as to the mandamus, and it was unnecessary for plaintiff to prove them.</p> <p>2. Municipalities—Removal of Employe—Evidence.</p> <p>One witness testified that during the interval of plaintiff’s removal from his position as a Croton aqueduct watchman C. did the same class of work as plaintiff; that there were several watchmen, and after plaintiff’s removal seven men did the same work, and were paid by the city, though one of them may have done the work under some other title. Another witness testified there were seven watchmen, including plaintiff, and that C. worked there before and after plaintiff was removed; that there were only six watchmen after plaintiff left, and C. was doing the same work. He admitted there were eight men who did the work before plaintiff left, and seven afterwards, but one of the men was not a watchman. Eeld not to show that plaintiff’s place was filled by another, to whom plaintiff’s salary was paid, as defense to an action against a city for wages as watchman.</p>

<p>Trade-Mark—Infringement—Injunction.</p> <p>Plaintiff’s trade-mark “Roachsault,” used for its insecticide to- design nate the insecticide prepared and sold by it, not being descriptive of the article, is infringed, so as to entitle it to an injunction, by defendant’s-label on his insecticide bearing the words “Warranted Chemical Roach Salt,” though there is a considerable difference in the appearance of the labels; a condition being created, by identity of sound, whereby the purchaser may be easily deceived, and plaintiff be defrauded.</p> <p>Van Brunt, P. J., dissenting.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the Nineteenth Ward Bank against the Manhattan Railway Company. From an order denying a motion to make the answer more definite and certain, plaintiff appeals.</p>

In the matter of the application of the mayor, etc., of the city of Mew York relative to acquiring title to Morris avenue from Tremont .avenue to Park View Terrace. From an order denying a motion of Theodore Sattler and others to refer the claim to commissioners of estimates, etc., under Laws 1895, c. 1006, they appeal.

<p>Appeal from special term.</p> <p>Action by Charles Matteson and others against Albert E. Palsner and others. From a judgment in favor of plaintiffs, defendants appeal.</p>

Action by Charles Arthur Flammer, as administrator of the estate of William G. Flammer, deceased, and another, against the Manhattan Railway Company and others. From an order making Charlotte H. Appell a party plaintiff, defendants appeal. Reversed.

Action by Robert S. Howard against Ira Van Gieson. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Action by Ottavio Drago against Thomas Kavanagh. From an order denying defendant’s motion requiring plaintiff to give security for costs, defendant appeals.

<p>1. Appeal—Neav Trial—Review of Evidence.</p> <p>Where there is no order in the record denying a new trial, the facts are not open to investigation on appeal.</p> <p>2. Action on Note—Demand and Notice—Waiver.</p> <p>An allegation in a complaint that, before the maturity of the note sued on, defendant, an indorser, waived presentment and demand of payment and notice of nonpayment by the maker, is sufficient to entitle plaintiff to give evidence of the facts constituting the waiver; it not being necessary to allege the facts in detail.</p>

Action by Charles J. Steinau against Augustus S. Gorham and another. From a judgment dismissing their counterclaim and an order denying a new trial thereon, defendants appeal.

<p>Appeal and Error—Temporary Injunction—Discretion op Court—Abuse —Trial on Merits—Waiver—Effect.</p> <p>Where the trial court, on affidavits presented, granted a temporary injunction against defendants, and the ease was at issue in March, 1900, and, before the appeal was argued, issues joined in November, 1900, were tided on the equity calendar, and defendant did not insist on a trial on the merits of plaintiff’s right to a temporary injunction, but took an appeal to review the discretion of the court in issuing it on the affidavits, the order appealed from will not be reversed, except in case of a plain abuse of discretion.</p>

Action by Sigismond Levy and others against Nathan Eosenstein and others. From an order denying a motion to continue a tempo vary injunction (66 N. Y. Supp. 101), plaintiffs appeal.

Application by Howland P. Wells for the appointment of a committee for Eugene P. 'Clark, an alleged incompetent person. From an order denying a motion to confirm the inquisition, and dismissing the petition, (64 N. Y. tiupp. 984) apolieant appeals.

Action by Edward R. Dunham against the Hastings Pavement Company. There was a judgment for defendant, and plaintiff moves for a new trial on exceptions directed to be heard in the first instance at the appellate division. The action is based upon a contract in writing, by the terms of which the plaintiff was constituted the sole agent of the defendant in the city of New York for certain purposes, and upon conditions therein expressed.

<p>Appeal from special term, New York county.</p> <p>Action by Joseph Paolillo against Charles Faber. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Francis D. Carley against J. Kennedy Tod and others. From an order directing the examination of James R. Williston and others in proceedings supplementary to execution, they appeal.</p>

<p>•</p> <p>Appeal from special term, Westchester county.</p> <p>Application by Theodore Purdy for an allowance and payment of his claim for .costs in a suit against him as school trustee of school district Mo. 6 of the town of Somers, Westchester county, to pay appellant’s'claim against said district. The district refused the application, and petitioner appealed to the county judge. From an order of the county judge in favor of appellant, the district appeals.</p>

<p>1. Street Railways—Injuries—Pedestrian — Actions—Negligence — Contributory Negligence—Instructions.</p> <p>Plaintiff and her witnesses testified that, while crossing the street under escort of a policeman, she was just • about to step off the rail of one of defendant’s tracks, but had not done so, when a wagon came between her and the sidewalk, and, while waiting for it to pass, defendant’s car struck her. Defendant’s evidence tended to prove that the gripman slowed the car in response to a signal of the policeman, and that, after plaintiff and the policeman had stepped off the track and were entirely clear of the rails, he started ahead, when an approaching wagon drove them back on the track, so close to the car that he was unable to check its speed. Held, that it was not error to refuse an instruction' that the gripman was not bound to anticipate that the policeman, having once crossed the track, would step back into a place of danger, and he might assume that, having once crossed the track, the policeman would remain in a place of safety, since such request referred only to the location of the policeman, and not the plaintiff, and the fact that he stepped off, and then • back on again, was not conclusive of negligence towards plaintiff, unless she also had stepped off, and then back.</p> <p>8. Same.</p> <p>It was not error to refuse an instruction that if the policeman stepped back six feet in front of the car, and too near to avoid an accident, while it would not be contributory negligence 'attributable to plaintiff, yet she could not recover, because It would be an unavoidable accident, so far as defendant is concerned, since such request referred only to the location of the policeman, and not the plaintiff.</p>

<p>1. Appeal—Evidence—Objection not Raised Below.</p> <p>An objection that a witness, offered to prove the speed of the car, was not qualified as an expert, could not be made for the first time on appeal.</p> <p>2. Trial—Opinion Evidence—Witness—Competency.</p> <p>Where it was in question how fast defendant’s car was moving at the time it collided with plaintiff’s vehicle, and a witness, in response to a question as to how fast the car was moving, said he did not know, and he was then asked as to its speed according to his judgment, permitting him to answer was not error on the ground that his first answer showed him not competent; the first answer going, not to his competency, but to the weight to be given his judgment by the jury.</p> <p>Van Brunt, P. J., and McLaughlin, J., dissenting.</p>

Action Tby Retía L. McKay against the Hudson River Line. From ;a judgment dismissing the complaint, and from an order denying a new trial, plaintiff appeals.

Mandamus by the people, on the relation of Thomas J. White, to Bird S. Coler, as comptroller of the city of New York, to compel relator’s reinstatement in a clerkship of the competitive class. From an order granting a peremptory writ, defendant appeals.

Judicial settlement of accounts of Donald Grant as administrator-of Kate Grant, deceased, general guardian of Harry C. Van Zandt. From a decree of the surrogate settling the account, the administrator, Donald Grant, appeals.

<p>Appeal from trial term, New York county.</p> <p>Action, by Maria Caglione, as administratrix of the estate of Paulo Caglione, against the Mt. Morris Electric Light 'Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Joseph H. Lumley against the Anatron Chemical Company. From an order vacating the attachment, plaintiff appeals. Ki6Y6rS6(i »</p>

Action by Henry P. Townsiey against the Bankers’ Life Insurance Company of the City of New York for damages for a wrongful discharge. From a judgment in favor of plaintiff, defendant appeals.

Actipn by Henry C. Weeks against the rector, etc., of Trinity Church in the City of New York to recover damages for breach by defendant of a contract for the erection of a building. From a judgment dismissing his complaint, and from an order denying his motion for a new trial, plaintiff appeals.

<p>1. Brokers—Double Compensation—Instructions.</p> <p>Where a broker, having secured a purchaser for a ferry, sued to recover commissions for the sale of another ferry by defendants to the same purchaser, and defendants contended that, if plaintiff had been employed to find a purchaser for the second ferry, he was not entitled to compensation for such sale because of an agreement between him and the purchaser whereby he was to receive compensation from the purchaser if he bought the first ferry, it was proper to charge that, if the plaintiff had nothing to do with the terms of the sale, and he was not intrusted with discretion, his arrangement for receiving compensation would" not preclude recovery.</p> <p>2. Same—Estoppel.</p> <p>Where a broker, having secured a purchaser for a ferry, sued to recover commission for a sale of a second ferry by defendants to the same purchaser, and defendants contended that, if plaintiff had been employed to find a purchaser for the second ferry, he was not entitled to compensation because of his having agreed with the purchaser to receive compensation from him if he bought the first ferry, and it appeared that defendants, on learning of such agreement, agreed that, if the purchaser did not pay such amount, they would, plaintiff was entitled to an instruction that it was a question for the jury whether defendants had not acquiesced in the arrangement with the purchaser, so as to preclude them from setting up its invalidity.</p> <p>8. Appeal.</p> <p>When no exception was taken to the refusal of the court to charge the jury to disregard certain evidence, the refusal could not be reviewed on appeal.</p> <p>4. Broker’s Compensation—Reasonableness.</p> <p>In an action by a broker for compensation for securing a purchaser for a ferry which was sold for $4,500,000, a verdict for $112,500 was not excessive.</p> <p>Ingraham, J., dissenting.</p>

Action by Samuel Bromberg against Solomon Friend and others for personal injuries. At the close of the testimony defendants move to direct a verdict in their favor. Granted.

Application by William J. Rodgers for mandamus to Bird S. Coler,. comptroller of the city of New York. From an order denying a motion for a peremptory writ (66 N. Y. Supp. 163), relator appeals.

<p>1. Exchanges—Expulsion op Members—Action fok Reinstatement.</p> <p>Where, in an action by plaintiff to compel his reinstatement as a member of a stock exchange after expulsion by the governing committee thereof on charges of fraud, it appeared that the merits were fully and fairly .inquired into by such governing committee, reinstatement cannot be ordered, since the judgment of such committee cannot he reviewed on the merits by the courts.</p> <p>2. Evidence—Documentary—Compelling Production—Materiality—In Possession or Attorney in Court.</p> <p>Where, in an action to compel reinstatement of a member of a stock exchange, expelled by the governing committee on charges of fraud, plaintiff served notice on defendant’s attorneys to produce papers, and it appeared that some of the papers were actually in eourt in the possession of the defendant’s attorneys, the court had authority to require their production, if shown to be material.</p> <p>8. Same.</p> <p>Where, in an action to compel reinstatement of a member of a stock exchange, expelled by the governing committee on charges of fraud, plaintiff served notice on defendant’s attorneys to produce papers, which were, actually in court in their possession, it was not error for the court to refuse to compel their production, it not appearing that they were material to the case.</p>

Action by Louisa 0. Pursley, administratrix of Charles S. Pursley, deceased, against the Edgemoor Bridge Works, impleaded. From a judgment on a verdict for plaintiff, and from an order denying motion for new trial, defendant Edgemoor Bridge Works appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Dave Heed, Jr., against Joseph W. Stern and Edward B. Marks to compel an accounting. From an order directing plaintiff to furnish and serve a bill of particulars, he appeals.</p>

<p>Landlord and Tenant—Nuisance—Constructive Eviction—Abandonment —Waiver.</p> <p>"That a tenant remained in possession from month to month after he became aware' of a continuing nuisance amounting to a constructive .eviction, does not waive his right to terminate the lease, where he remained under a promise that the evil would be remedied; but amounts ouly to a waiver of conditions existing at the time he pays each month’s rent.</p>

Action for injuries by Xaver Wiedeman against James Everard. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. .

<p>1. Descent and Distribution—Presumption of Death.</p> <p>Where a will distributes the residuary estate to certain legatees, and directs that, if any of them die, leaving issue, such issue shall take his share, a presumption of death without issue of one of such legatees at the time of testator’s death will not be indulged from mere absence for 30 years, without any proof of inquiries at the place where he was last known to he alive, and without evidence showing any such relation between him and his family as-would induce him to correspond with them.</p> <p>2. Same—Shares Undisposed of—Deposit with Comptroller.</p> <p>Where, on a proceeding for the.distribution of an estate, the evidence is insufficient to determine whether a legatee was alive or dead, or whether he left issue entitled to his share, the remainder of such estate may be distributed, and such share deposited with the comptroller to preserve it until proper proof can be made.</p>

<p>1. Costs—Suing as Poor Person.</p> <p>Where a petitioner applies to sue as a poor person, he must show that he is so situated that he will be unable, on account of his poverty, to present his cause to the court unless the order is granted.</p> <p>3. Same—Good Cause oe Action—Advice oe Counsel.</p> <p>An application for an order to sue as a poor person, which showed counsel’s advice that petitioner had a good cause o'f action, but did not set forth facts sufficient to satisfy the court thereon independent of this advice, should have been overruled.</p>

<p>Receivers—Pendente Lite—Appointment.</p> <p>Where defendant had obtained possession of notes and stock as collateral security for them, given by plaintiff, under a contract between them, it was error to appoint a receiver of the notes and stock pendente lite, in an. action by plaintiff to have the notes declared void and the stock returned, on the ground that he was induced to make the contract by a false statement of defendant, which defendant denied.</p>

Action by Catherine McCann, as administratrix, etc., of Simon McCann, against the New York & Queens County Railway Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Application by the people, on relation of Stefano Marinello, against the ¡Sciacca Association in New York, for mandamus to compel defendant to restore him to membership. From an order denying the writ, relator appeals.</p>

<p>:• Street Railroads—Injuries to Abutting Property—Damages—Amount— Eminent Domain.</p> <p>Plaintiff’s property bad a frontage of 19 feet and 8 inches, and an average depth of 62 feet, abutting on the street through which defendant’s road ran. The building is an old two-story and attic brick building, which at first rented for $60 a month, but was reduced to $40, and the road is 7 feet therefrom. Communication with the lower part of the city is quicker by surface than by the elevated roads, and the plaintiff gets no - benefit from the adjoining stations. HeZtf, in an action for the damages caused to the property by the road, that fee damages of $3,500, and rental damages for a little over 13 years of $4,025, or $300 per year, were moderate, and sustained by the evidence.</p>

Action by David Polack against Herman Runkel, individually, impleaded with others. From an interlocutory judgment overruling a demurrer to the complaint, defendant Runkel appeals.

Action by William H. Douglas and another against the Chesebrough Building Company and another for specific performance of a lease, and to enjoin the defendants from proceeding in a suit for the collection of rent. From an order denying their motion to continue an injunction pendente lite, plaintiffs appeal.

Action by Henderson Hill against John Moebus anil another. :From an order of the appellate term, reversing a judgment of the municipal court, plaintiff appeals, under permission of the appellate term. 63 27. Y. Supp. 1109.

<p>Life Tenant—Remainder—Income—Stock Dividend.</p> <p>Where part of a testamentary trust estate consisted of stock in a corporation, which, after the creation of the trust estate, declared a stock dividend out of the surplus earnings of the corporation, which had been accumulating for several years, as between a life tenant and remainder-man, the new shares, constituting the stock dividend on the shares held by the trustee, were income, and belonged to the life tenant.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Proceeding in the matter of the judicial settlement of the account of Mary L. Warrin as administratrix of John W. Warrin, deceased. From a decree of the surrogate’s court confirming the referee’s report, the administratrix and Edward P. Hatch appeal.</p>

In the matter of the appraisal of the estate of- Henry W. King, deceased, under the transfer-tax act. From an order appointing an appraiser, and directing the manner of appraisement (63 N. Y. -Supp. 1100), the executors of deceased appeal.

Action by Eliza M. Kellegher against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railroad 'Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. The plaintiff alleges that while attempting to board one of defendant’s north-bound open horse cars on Amsterdam avenue at Seventy-Ninth street, on Sunday afternoon, April 25, 1897, she was thrown to tlie ground and injured by the negligent starting of the car.

Action by Charles Brox and others against William B. Biker and others. From an order denying a motion to cancel a notice of lis pendens, defendants appeal.

Action by John F. Steeves and others against Margaret Sinclair and others to enforce three mechanics’ liens. From a judgment on an undertaking given to discharge the liens, defendant Charles Siedler and his sureties appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Walter E. Warner against Isidore Schweitzer. From a • judgment in favor of plaintiff, defendant appeals.</p>

Action by William M. Hoes, public administrator, as administrator of Owen Hagen, deceased, against the Ocean Steamship Company of Savannah and another. From a judgment in favor of plaintiff, and from an order denying a new trial, the steamship company appeals.

Action by Richard M. G. Livingston and Walter E. Livingston, individually and as trustees, etc., against Elizabeth Livingston and others. From an order directing defendant Fanny Turner Wharton to complete her purchase of certain premises pursuant to a written agreement between herself and plaintiffs, she appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Susan T. Homans and Alexander G. Tyng, as executors of Susan Wilson Tyng, deceased, against Charles Rockland Tyng. From an order amending the judgment, plaintiffs appeal.</p>

Application by the state comptroller for an appraisal for the purposes of imposing a collateral inheritance tax on the property of the estate of John Crerar, deceased. From a decision of the surrogate's court denying the application by the executors to dismiss the proceeding (65 N. Y. Supp. 573), they appeal.

Action by Edward F. Browning against Albert I. Sire and others to foreclose a mortgage. From an order denying a motion to appoint a receiver, plaintiff appeals.

<p>1 Mechanics’ Liens— Signature—Agent’s Authority — Evidence — Sufficiency.</p> <p>The evidence on foreclosure of a mechanic’s lien showed that the corporation plaintiff was expressly authorized, among other things, to institute, compromise, and dismiss all legal proceedings, and to file mechanics’ liens, and to engage and discharge all necessary assistants, and that it directed an attorney to prepare a new notice of lien as a substitute for a defective one previously filed. The attorney testified that he was instructed by the manager or the bookkeeper to file the lien, and that thereupon he verified the lien as agent and filed it. The bookkeeper testified that the manager, on leaving the city for a few days, told him to have the attorney make out the lien. The manager testified that on his return he was informed by the attorney that he had verified and filed a new notice of lien as a substitute for the defective one. Held, that a finding that the attorney was authorized by the manager to verify and file the new lien was sustained by the evidence.</p> <p>9. Same—Agreement to Cancel—Evidence—Sufficiency.</p> <p>In a foreclosure of a mechanic’s lien, defendants pleaded that by a written agreement dated March 8, 1898, the time for payment of the sum for which the lien was filed was extended till after the building was finished, and also that prior to March 8, 1898, the plaintiff, by its manager, agreed that the lien in suit should be discharged, provided that the owner would convey the building to such manager for the benefit of creditors, which was done. The evidence showed the written agreement of March 8th, providing that the building should be conveyed to plaintiff’s manager as trustee for creditors; the creditors to extend the time of payment of their claims till the completion of the building; the agreement not to be binding on any of them unless all signed. The evidence further showed that one of such creditors refused to sign; that the conveyance to the manager was made March 8th, in order to prevent judgment liens from attaching, at which time some of the signatures to the agreement had not been obtained. The owner of the building testified that the manager had never agreed to discharge plaintiff’s lien, while the manager, who had bonded the lien, testified that he had several conversations with the owner in which he did so agree. Held, that the evidence sustained a finding that no agreement to cancel the lien was made.</p>

Action by Sigmund R. Casper against the Dry Dock, East Broadway & Battery Railroad Company. From a judgment entered on the dismissal of the complaint on- a trial before a jury, plaintiff appeals. Affirmed.

<p>Appeal from special term, New York county.</p> <p>Action by Frederick W. Sander against the New York & Harlem Railroad Company and others. From an order denying a motion to retax costs of a former trial, plaintiff appeals.</p>

Action by Alexander Jack, an infant, by Alexander Jack, his guardian ad litem, against Grace L. McCabe, as administratrix of Lawrence McCabe, deceased, and another. From a judgment in favor of the plaintiff, and from an order denying a motion for new trial, the defendants appeal.

Action by Frederick A. Baker against the city of New York to recover for making transcripts of jury trials had before the coroner. From a judgment dismissing the complaint, the plaintiff appeals. The action was brought by a stenographer employed by the city to recover for copies of transcripts of testimony furnished by him to the district attorney for which he claims to be entitled to compensation in addition to bis regular salary.

Action by Frank Austin against Enos V. Butcher, as chief engineer or president of New York City Division, No. 105, of the Grand International Brotherhood of Locomotive Engineers, for the reinstatement of plaintiff as a member of such association. From a judgment dismissing the complaint, plaintiff appeals.

Action by Stephen Cash, Jr., against the New York Central & Hudson River Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Suit by the New York Bank-Note Company against the Hamilton Bank-Note Engraving & Printing Company and another.

Action by Robert Lucas against the Metropolitan Street-Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Schools—Teachers—Licenses.</p> <p>The consolidation act (Laws 1882, c. 410, §’ 1040) declared that licenses to teach in the public schools in the city of New York should be granted to those persons found to be qualified on examination by the city superintendent and two inspectors of schools, and gave the board of education power to enact by-laws governing the appointment and qualification of teachers. A by-law of the board of education, adopted pursuant to the statute, provided that the city superintendent might issue a license for six months, but that no permanent license should issue until the candidate had had six months’ experience as a teacher. The New York City charter, taking effect March, 1898, provided that no one should teach in the public schools of the city without a license. Helé, that the by-law authorizing the city superintendent to issue a provisional license was not invalid on the ground that the statute did not authorize the granting of any license save a permanent one, and hence, where relator’s license for six months had expired after the taking effect of the charter, she was not entitled to teach.</p>

Application by the people, on the relation of Frank J. Martin, for a writ of mandamus to compel P. J. Scully, city clerk of the city of New York, to reinstate relator as clerk in defendant’s office. From an order denying the application, relator appeals.

<p>Appeal from special term, Ontario county.</p> <p>Action by Charles A. Hanes against Sarah A. Mulholland. Frederick A. Sackett, as receiver of the property of John A. Butler, inter-pleaded, and was substituted as defendant. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.</p> <p>This action was commenced against Sarah A. Mulholland January 20, 1899, to recover the sum of $250. That the said defendant was indebted to someone for the sum claimed, and by reason of the agreement set out in the complaint, is undisputed. The present receiver was appointed in proceedings supplemental to execution on a judgment against one John A. Butler, and in that capacity claimed this money in hostility to the claim of the plaintiff. Pursuant to an order duly made, and which has been fully complied with, the said receiver was substituted as party defendant in the place of said Sarah A. Mulholland, and she was released from all liability by reason of her said: agreement upon paying over the money as directed, and this action was continued against said receiver, and upon an amended complaint, as provided for in the order of interpleader. On the 3d day of August, 1898, said John A. Butler owned a lot in the village of Border City, in the town of Waterloo, Seneca county, upon which he was erecting' two dwelling houses, one of which-was then nearly completed. He sought to borrow $500 of said Sarah A. Mulholland, to be secured by his bond and a mortgage upon said premises. Thereupon on that day they entered into an agreement in writing whereby she agreed to pay him $250 upon the execution of the bond and mortgage, .and Butler agreed to complete said dwelling houses; and the agreement further-provided that the remaining $250, which constituted the part consideration for the bond and mortgage, should be paid to Butler “when the second house to be erected on said premises shall be inclosed.” The bond and mortgage were executed and delivered, and the first $250 paid, that day, all conformably to said written agreement. On the 5th of August, 1898, said John A. Butler executed and delivered to his brother David Butler his bond, accompanied by a second mortgage upon the same premises, to secure the payment of $1,000 and interest as therein provided. At the time of the execution of" this bond and mortgage the Butlers entered into a written agreement whereby David agreed to erect a dwelling house on said lot for the sunn of $500, and to be completed on or before November 20, 1898, and which is the second dwelling' house referred to in the Mulholland agreement. The payment tor this building constituted a part of the consideration for such bond and mortgage from John A. to David. On August 22, 1898, Butler conveyed the premises to James Davis by warranty deed. In that conveyance the consid«ration expressed is $100, and in addition the grantee assumed the payment of said two mortgages. The proof shows that at the time of the execution of the deed there was a parol agreement by which the grantee was to receive the $250 to become due from Mrs. Mulholland when the building was inclosed, and that this agreement formed a part of the inducement and consideration for the purchase of the premises. On the 28th of September, 1898, Davis conveyed to the plaintiff by a similar deed, containing an expressed consideration of $75, and with a like assumption clause to that recited in the deed from Butler to Davis. By a parol agreement made as a part of the consideration for this transfer, Davis also assigned to the plaintiff the said claim of $250, which was to mature when said dwelling house was inclosed. On December 7, 1898, Butler gave a written order directing Mrs. Mulholland to pay said sum of $250 to the plaintiff. On the 9th of January, 1899, Butler and Davis joined in a formal written assignment of said claim to the plaintiff, purporting to be made in confirmation of the preceding oral transfers. Prior to the inclosure of the building and the written assignment and order, but subsequent to the parol transfer to the plaintiff, and on the 3d day of October, 1898, one Jenkins recovered a judgment of $146.76 in justice’s court against Butler, and proceedings supplemental to execution were instituted on said judgment; and on November 5, 1898, Mrs. Mulholland was enjoined from paying over said money, and was directed to appear and be examined as a witness before a referee appointed in said proceedings. The proceedings culminated in the appointment of the defendant as receiver on said judgment February 6, 1899. With these conveyances there was also a verbal transfer of the agreement between the Butlers whereby David was to erect the house on said lot, and which in part formed the consideration of the bond and mortgage to him. It also appears that the written agreement with Mrs. Mulholland during all this time was in the custody of the attorney who prepared it, and who refused to show it to the plaintiff.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Peter Johnson against the Metropolitan Street-Kailway Company. From an order vacating an order requiring plaintiff to give security for costs, defendant appeals.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Application by William Washburn Law for the probate of the will and codicil thereto of John S. Law, deceased. From a decree dismissing the application, the proponent and others appeal. Reversed.</p> <p>John S. Law died on the 25th day of August, 1893, at Greenwich, in the state of Connecticut, leaving a last will, bearing date December 23, 1885, and a codicil thereto, dated March 13, 1890. He left, him surviving, Elizabeth Law, his wife, John G. Law, a son, Alice Law, a daughter, residing with him in Connecticut, and William Washburn Law, the petitioner herein, a grandson, residing in Philadelphia, his only heirs at law and next of kin. Thereafter Elizabeth Law, the executrix named in the will, applied, by petition to the probate court of the state of Connecticut at Greenwich, to have the said will probated as a will of both real and personal property, and an order was made by the probate judge of said court directing that notice of the application be given to all persons interested in said estate by publication in a newspaper, and by mailing to each of said persons a copy at least five days before the time assigned in said order for the proving of said will. Pursuant to said order, notice was given to the persons interested by such publication and mailing a copy of the order. At the time of such publication and mailing, the petitioner herein was an infant, residing in Pennsylvania, and no citation or other notice to attend such proceeding for the probate of the will was ever personally served on him; nor does it appear that a guardian ad litem was appointed to represent him in those proceedings, nor did he ever appear therein, either in person or otherwise. No objections to said will and codicil having been filed, the same were duly proved and admitted to probate, and the said Elizabeth Law duly qualified as executrix, and entered upon the discharge of her duties as such. On the 10th day of September, 1897, an exemplified copy of the will, the codicil, and of the Connecticut probate proceedings were filed and recorded in the office of the surrogate of the county of New York, on an ex parte application by said executrix. By virtue of the proceedings had in the probate court of Connecticut and the surrogate’s court of the county of New York, the executrix has so far administered the estate. The petition by which this proceeding was commenced alleges the following facts, viz.: That for many years prior to and at the time of his decease the testator had been and was domiciled in the city, county, and state of New York, being then seized and possessed in fee of real and personal property within said county to which the said will relates, and which still remains in said county, that he died at Greenwich, in the state of Connecticut, where he was temporarily sojourning during the summer; that Elizabeth Law, the executrix in said will named, presented for probate to the probate court of Connecticut said will, together with a petition, wrongfully and falsely alleging that the said testator was at the time of his death domiciled in the state of Connecticut; that such allegation was made for the purpose of avoiding the operation of the laws of the state of New York, and of depriving the petitioner of his rights in the estate of said decedent; the infancy of petitioner and his residence in the state of Pennsylvania at the time of the proceeding in Connecticut; that no citation to attend such proceeding was ever personally served on him; that no guardian ad litem was appointed to represent him in those proceedings, nor did he ever appear personally or otherwise; that said Connecticut court was wholly without jurisdiction; and that its decree is void, invalid, and of no effect. The separate answers of the contestants, Elizabeth Law, John G. Law, and Alice Law, alleged that the testator was at the time of his death a resident of Bellhaven, in the state of Connecticut, and pleaded the Connecticut probate, and the filing of the exemplified copy of the record thereof in New York county. It appears from the record that both the will and the codicil recited that the testator resided in the city of New York; an'd it further appears that both said instruments were executed in the city of New York, and all the witnesses to their execution also resided there. No testimony was taken in this proceeding, hut on a motion made at the opening of the hearing the proceeding was dismissed. From the decree entered denying the application and dismissing the proceeding these appeals are taken by William W.'Law, the proponent of the will, and by Frank L. A. Graham, Anna Y. Law, George W. Davis, and William E. Fritz, who duly intervened pursuant to section 2569 of the Code of Civil Procedure.</p>

<p>Appeal from special term, New York county.</p> <p>Proceedings in bastardy by John W. Keller, commissioner of public charities, on complaint of Teresa Heitzmann, against John P. Cleary. From a judgment in favor of plaintiff, defendant appeals. Appeal dismissed.</p>

<p>Exemptions—Proceeds of Life Policy.</p> <p>Under Laws 1840, c. 80, which provides that life insurance payable to a wife shall be free from the claims of the representatives of her husband or his creditors, the proceeds of an old-line life policy, payable to the wife, cannot be attached by her creditors while in possession of the company after it has been matured by the death of the husband.</p>

<p>1. Appeal—Opening Subbogate’s Decebe.</p> <p>An appeal will lie to the supreme court from a surrogate’s refusal to . open a decree, though it is within his discretion.</p> <p>2. Same—Motion to Vacate.</p> <p>Code Civ. Proe. § 2481, authorizes the surrogate to open a decree for newly-discovered evidence or other sufficient cause. Section 2617 provides that if any person interested in sustaining or defeating a will shall not have appeared in the probate proceedings, and shall not have been notified, a decree therein shall not affect his interest. Section 2509 declares that any person interested in any estate affected by a surrogate’s decree, who was not a party, may intervene and appeal; and section 2586 directs that, where an appeal is taken on the facts, the appellate court may decide the question of fact, and may receive further testimony. HeM, that where a codicil executed in Arizona, but not with the formalities required in New York, is refused probate, a party interested therein, who was not cited to appear, cannot have the decree opened on motion made before the time for appeal expired, since, as the appellate court could decide as to the requirements of the Arizona law, there was no necessity for the motion to protect applicant’s rights.</p>

Application of Kayeton Kautsky, as assignee for benefit of creditors of the estate of Theodore Agazzi, and Sylvester Peyser, for a final accounting. From an order confirming the report of a referee surcharging the assignee, the assignee and his surety appeal.

<p>1. Contracts—Construction of Elevator—Reasonable Cost—Certificate of Architect—Conclusiveness.</p> <p>Defendant contracted to put in an elevator for plaintiff to the satisfaction of plaintiff’s architect, who was made sole judge and arbitrator as to what should be deemed a compliance with the contract, and agreed that the architect’s determination in writing should be binding and conclusive on the parties, and that, if the work was not completed by a certain date, plaintiff could finish it at defendant’s expense. Defendant failed to complete the contract, which was finished by plaintiff, and, in an action for the sums expended, introduced the certificate of the architect as to the cost of completion. Edd, that defendant was not entitled to introduce oral evidence that it had substantially completed the contract, and as to the reasonable value of plaintiff’s work, since the certificate of the architect was binding and conclusive.</p> <p>3. Same—Purchase op New Machinery.</p> <p>Defendant contracted to put in an ele.vator for plaintiff capable of running at a speed of 300 feet per minute, and agreed to complete the work to the satisfaction of plaintiff’s architect within a specified period, and, if not completed, plaintiff could finish it at defendant’s expense. Defendant failing to complete the work, plaintiff finished it by taking out defective machinery of defendant and replacing it with an elevator capable of a speed of 200 feet per minute, which cost less than the one specified. Held, in an action to recover the cost of completion, that the objection that plaintiff had no right to put in an elevator of less speed than the contract required was not well taken, since defendant had no reason to complain if plaintiff chose to put in a less expensive elevator. - Same—Oral Evidence—Admissibility.</p> <p>Where defendant contracted to put in an elevator for plaintiff capable of running at a certain speed per minute, and jdaintiff completed the work in accordance with a provision in the contract giving it the right to do so in case defendant failed to finish it within a specified time, defendant, in the absence of evidence that the elevator as constructed by it could have been made to work as specified in the contract by replacing defective machinery, was not entitled to introduce evidence that plaintiff unnecessarily increased the cost of completion by tearing out defendant’s machinery and purchasing new, since plaintiff was entitled to complete the machinery so that it would do the work as defendant had agreed, and was not obliged to confine itself to repairing defective machinery.</p>

In the matter of the petition of David E. Austen, as receiver of taxes, against William S. Brigham. Mo°tion for an order for the payment of a tax assessed against said Brigham.

Certiorari, on the relation of William Lemmon, to Thomas L. Feitner and others, commissioners of taxes and assessments of New York City, to review an assessment. From an order dismissing the writ, relator appeals.

Action by Joanna Warren, now Joanna Caldersaygues against Charles Warren and another. From an order denying an application to modify the judgment, defendants appeal. This action was originally brought to admeasure dower, and upon December 2, 1884, judgment was entered requiring the defendants to pay to the plaintiff the sum of $66 annually as one-third of the rental value of the farm in which the said plaintiff had a dower interest.

Action by the Country Club Land Association against Frederick Lohbauer and another to restrain defendants from trespassing on plaintiff’s property. From a judgment in favor of plaintiff, defendants appeal.

<p>Appeal from special term, New York comity.</p> <p>Action by Christopher C. Shayne against the Evening Post Publishing Company. From an order reviving and continuing the action against the trustees of the defendant on its dissolution, they appeal.</p>

Action by Alexander Gilbert and another, as executors of the estate of W. E. Clarkson, against Charles J. Warren and another. From a judgment in favor of plaintiffs, and from an order denying a new trial, defendants appeal.

<p>Action by George W. Cole against Louis Beyland. Plaintiff demurred to defendant’s answer. Demurrer sustained.</p>

<p>Appeal from city court of New York general term.</p> <p>Action by Louis Cass Minster against David J. Beuohol. From a judgment for plaintiff, affirmed by general term (66 N. Y. Supp. 493), defendant appeals. Beversed.</p>

Action by Charles E. David against William J Rick. From a judgment of the county court affirming a judgment of a justice’s court in favor of plaintiff, defendant appeals.

-Appeal from special term, New York county. Action by Mary L. Parsons against RobertA. .Van Wyck and others. Prom an order denying a motion to continue an injunction pendente lite, complainant appeals.

<p>1. Mechanic’s Lien—Land Subject.</p> <p>Where two lots were treated as one, by the construction of a building across them, the right to a mechanic’s lien for material larnishec^ for the building attaches to both lots; it being impossible to distinguish the amount going into each lot separately.</p> <p>2. Same—Parties—Joinder.</p> <p>Where the owners of adjoining lots contracted to convey them, retaining the legal title as security, but permitted the grantee to take possession and treat the lots as one parcel, by building a house across them, and consented that another might furnish material for the house, the lots were chargeable with the material man’s lien, and the legal owners were properly joined in a suit to foreclose the lien.</p>

<p>Application by the board of street opening and improvement to acquire title to Beck street, or East 151st street. Appeal from an order denying an application to confirm the report of the commissioners of assessment in such proceeding.</p>

<p>Action by Mary E. Antisdale against Frank Williamson and others.</p>

<p>Action by Helen Bruce, as administratrix, against the Brooklyn Heights Railroad Company.</p>

<p>Action by Matthew A. Broderick against Merritt L. Archibald (Camille E. Archibald, third party). Separate appeals by defendant and by said third party.</p>

Action by Francis D. Oarley against J. Kennedy Tod. From an order directing the examination of Wilbur K. Mathews and another in proceedings supplementary to execution, they appeal.

<p>Action by Mary V. Cohen against the New York Elevated Railway Company.</p>

<p>Action by John Oobin against Heman M. Blasdell and another.</p>

<p>Action by the city of Buffalo against the Union Iron Works, Buffalo, N. Y.</p>

In the matter of the application of W. A. H. Ely for an order to C. W. B. Dammann, Harvey G. Purdy, Louis T. Dolen, and Ferd A. Richardson, the board of inspectors of election ■of election district No. .1, town of Greenburgh, ■county of Westchester.

<p>Action by John Graham against the ■city of New York.</p>

<p>Action by the Genesee Savings & Loan Association against Charles M. .Allen and others. From an interlocutory judgment sustaining a demurrer, plaintiff appeals.</p>

<p>Action by "Richard Hannigan against the Lehigh & Hudson River Railway Company.</p>

<p>Action by Johanna Hickman against the Nassau Electric Railroad Company.</p>

<p>Action by John S. Gunsaul against Charles W. Grannis and another.</p>

<p>Action by Joseph Hutcheson against Wojciesch J. Mioducki.</p>

<p>Action by Jonathan B. Hutton against the Perry Knitting Company.</p>

<p>Action by Frank Kane against the New York Central & Hudson River Railroad Company.</p>

<p>In the matter of the petition of Julia Johnston, by her guardian ad litem, to compel P. M. Sullivan, an attorney, to pay over money.</p>

<p>Action by Charles Kerr against the New York Central & Hudson River Railroad Company and another.</p>

<p>Action by Ora M. Jewell against Thomas A. McIntyre and others.</p>

<p>Action by Robert A. Lancaster against Amos T. French, as executor of Francis O. French, deceased. From a judgment for plaintiff on report of referee, defendant appeals.</p>

<p>Action by the Little Falls National Bank against Charles King and others.</p>

<p>Action by the Luxemberger Tuchfabriken against Hugo Meyer.</p>

<p>Action by Henry H. Lyman, as, etc., against Timothy Kane and another.</p>

<p>Action by Alida McAlan against the trustees of the New York & Brooklyn Bridge Company.</p>

<p>Action by the Melrose Woolen Company against the Jaeck Bros. Company.</p>

<p>Action by Jennie M. Montgomery against Lyman G. Bloomingdale and another.</p>

<p>Suit by Mary C. K. Mullen against Thomas F. _ Mullen. From a decree in favor of complainant, defendant appeals.</p>

<p>Action by Marie F. O’Reilly against Olin, J. Stephens. From a judgment for plaintiff, defendant appeals.</p>

<p>Action by the Old Forge Company and others against William Seward Webb and others.</p>

<p>Proceeding by the people of the state of New York, on the relation of James Barron, against John J. Scannell, as commissioner.</p>

<p>Action by Harriet F. Parsons against the Terminal Railway of Buf-" falo, George E. Smith, John M. Lally, and the town of Hamburg.</p>

<p>Application by the people of the state of New York, on relation of John P. Leary, against Charles H. Knox and others, commissioners constituting the civil service commission of the city of New York, for-mandamus to compel the latter to certify on the pay roll of the applicant that he was on a certain date promoted to the position of roundsman of the police force of the city of New York. From an order granting the writ, defendants appeal.</p>

<p>Proceedings by the people of the state of New York, on the relation of Edward Mansfield, against John M. Hancock and others, as municipal civil service commissioners of the city of Niagara Falls, N. Y.</p>

<p>Action by Jacob Rosenberg and another against Annie Smoke. From a judgment for plaintiffs, defendant appeals.</p>

<p>Action by Otto Rudolph against John Corrigan. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>In the matter of the application of Herbert Tompkins for an order to Frank A. Sweet, William Van Orden, William A. Kilmer, and Edward D. Morgan, the board of inspectors of election of election district No. 2, town of Greenburgh, county of Westchester. Motions Nos. 1, 2, and 3.</p>