Volume 68 — New York Appellate Division Reports

Appeal by the plaintiff, Charles H. Boaz, from an interlocutory judgment of the Supreme Court in favor óf the defendants, entered i-Et the office of the clerk of the county of New York on the 8th day of July, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining demurrers to the complaint.

<p>Revivor of an action, in which an interlocutory judgment directing a reference has been made and the reference is pending undetermined — what loches will not prevent it.</p> <p>A dispute having arisen between Evan Jones and John Jones, copartners, as too division of the partnership properties, they entered into an agreement May 25, 1875, for the partition of the real estate. This partition agreement was only partially carried out because of the failure of the parties to agree upon a settlement of their accounts.</p> <p>December 30, 1875, Evan Jones, who had received under the partition agreement property less in value than that received by John Jones, brought an action against the latter for the specific performance of the partition agreement. October 25, 1879, the General Term, upon an appeal from a judgment dismissing the complaint, reversed the judgment and ordered an interlocutory judgment for an accounting. Pursuant to the interlocutory judgment a reference was ordered and the parties appeared before the referee from, time to time from May 13, 1880, to June 29, 1882, at which latter date the reference had been substantially completed. Since that date no further steps or proceedings have been taken in the action, but it appears that the testimony has been preserved and that the referee is still living.</p> <p>August 7, 1879, John Jones conveyed his property to his brother Morgan Jones, who died prior to October, 1896. Evan Jones died July 18, 1898. Since the proceedings in the original action had been suspended Evan Jones had instituted various actions for the purpose of determining the controversy, but without avail.</p> <p>Upon a motion made after the death of Evan Jones by his representatives and successors in interest against the representatives and successors in interest of Morgan Jones to revive and continue the action in the names of the present representatives of the original parties, it was</p> <p>Held, that as the court had granted an interlocutory judgment for an accounting, the ten years’ Statute of Limitations, applicable to a motion for revivor made in a suit in equity, did not bar a revivor in the present case;</p> <p>That as it appeared that the ends of justice would be subserved by granting the motion, and as it was not shown that the parties opposing the motion would be prejudiced if the same was granted, the delay did not constitute such loches as would defeat the motion.</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the defendant, Lewis Mayer, 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 31st day of October, 1901, denying the defendant’s motion to vacate an execution issued against his person.

<p>A receiver— when he will not be appointed in an action to recover property alleged to have been taken by a wife from, her husband.</p> <p>Where upon an appeal, from an order appointing a receiver pendente lite, made in an action brought by a. husband against his wife to recover possession of certain property which he claimed that she had wrongfully taken and detained from him, it appeared that it was not certain whether the property had not been removed beyond the jurisdiction of the court, the Appellate Division considered that the order should be reversed; that if the property was within the State the plaintiff should be relegated to his remedy by a writ of replevin, or by an injunction to prevent the defendant from disposing of the property, or removing it from the State of Hew York.</p> <p>Qucere, whether a receiver can be appointed in a replevin action.</p>

Appeal by the plaintiff, Patrick Curley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 2d day of May, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 6th day of May, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by Joseph Reiss, as receiver, in the above-entitled action, 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 25th day of November, 1901, denying his motion to punish the defendant Jacob Chaimowitz for contempt of court.</p>

Motion by the plaintiff, Roger T. Harrison, to dismiss an appeal from the Appellate Term.of the Supreme Court in the above-entitled action, pending in the Appellate Division of the Supreme 0 Court, first department.

Cboss-appeals by Erastus C. Knight, as Comptroller of the State of New York, and by Albert G. Vanderbilt individually, and William K. Vanderbilt and others, as executors, etc.,. of Cornelius Vanderbilt, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 16th day of May, 1901, affirming upon appeal an order theretofore entered in the proceeding confirming the report of the appraiser and fixing the amount of the…

Appeal by the defendant, The Press Publishing 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 3d day of December, 1900, upon' the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 3d day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s' office on the 12th…

Appeal by the defendants, Edward E. Drew and another, 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 2d day of December, 1901, denying the said defendants’ motion for an order to frame issues to be tried before a jury.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of-New York on the 21st day of May, 190Í, upon the verdict of a jury for $7,0.00, and also from an order entered in said clerk’s office on the 3d day of June, 1901, denying the defendant’s motion for a new trial made, upon the minutes.

' Appeal by the plaintiff, Katherine O. K. Hagan, 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 2d day of July, 1901, upon the verdict of a jury rendered by direction of the court.

<p>Hills and violes — liability if an indorser, where his indorsee has recovered judgment ■against the maker and assigned it, orally reserving all claims against the indorser — law of New York and of Louisiana.</p> <p>A note executed, dated and made payable in Louisiana, where the maker resided, was indorsed by the payee thereof in the State of New York and discounted in the latter State by a national bank doing business therein. Upon the nonpayment of the note, the bank brought an action" against the maker in the State of Louisiana and recovered judgment against him. Thereafter it transferred the judgment to a third party for fifty per. cent of the amount due, thereon, upon an oral understanding, made with the assent of the judgment debtor, but not incorporated into the transfer, that the bank reserved all claims against the indorser of the note. An order was then entered in the Louisiana •court subrogating the transferee to the bank’s rights in the .judgment.</p> <p>It further appeared that, under the statutes of the State of Louisiana, the order of subrogation vested in the transferee of the judgment all-rights which the bank had against the judgment debtor, and that the order could not be explained or modified by evidence of a prior or contemporaneous paroi ■ agreement.</p> <p>Held, that, under-the law, both of New York and of Louisiana, the bank having by its assignment of the judgment placed it out of. its power to transfer such j udgment to the indorser upon the payment by him of the note, the indorser was 'discharged from liability, and that the paroi reservation from" the assignment •of the bank’s rights against the indorser was ineffective to preserve such •liability.</p> <p><'Semble, that, as between the bank and the maker of the note¡ the effect of the transfer of the judgment upon the obligation of the maker of the note should be determined by the law of the State of Louisiana, but that as between the bank and the indorser, the liability of the latter would be governed'"by the law of the State of New York.</p>

<p>Appeal, by the plaintiff, James Martin, from so much of an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 26th day of April, 1901, as reduces the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at said Trial Term.</p>

<p>Attorney, and client —proof as to an attorney’s ■ authority .to bring an action fpr personal injuries — his right where the action is settled by his client.</p> <p>The day after a woman passenger on a railway car had been injured the repre-' sentative of one Herman Gottlieb .called at' her home and' requested her to' retain Gottlieb as her attorney if she intended to-.institute a suit against the railway company. The, representative did not succeed in obtaining the woman’s! consent to bring the action, but she referred him to her husband, who was with her at the time she was injured. The representative called upon' the - plaintiff’s husband and induced him to sign an -agreement- by which the hus:- . ■band authorized, Gottlieb to prosecute “my said claim for damages ” fora contingent fee of one-half the recovery. ,</p> <p>Thereafter Gottlieb began an action on behalf of the woman by the service of a , summons, but before he had doné anything further therein the plaintiff repudiated his authority and consented to a discontinuance of the action. Gottlieb’s representative claimed that the plaintiff’s. husband had authorized the com-.mencement of the suit, but this was denied by both the plaintiff, -and her hus- . band, and there was no written evidence of the fact.</p> <p>Upon an appeal from an order directing the defendant in the action to pay to Gottlieb one-half of the amount of an alleged settlement of the action besides ' the costs and disbursements.of the action, -and providing that if such payment was not made Gottlieb should have leave.to prosecute the.action to. judgment for his own-benefit,</p> <p>Held, that upon the facts the order was unjustified;</p> <p>That,.at most, Gottlieb would only be entitled‘to the sum of fifteen dollars for serving the summons.</p> <p>Lawhlin, J., dissented-. ■ ....</p>

Appeal by the defendant, the Watson Wagon 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 28th day of October, 1901, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Madison for the convenience of witnesses.

.Appeal by the plaintiff, The Marlin Fire- Arms Company, from a final judgment of the Supreme Court in favor of the defendant,, entered, in the office..of the clerk of the cdtiiíty of New.

Appeal by the defendant, the Manhattan Railway 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 28th day of October, 1901, granting the plaintiffs motion for leave to prosecute the action as a poor person.

<p>Libel—what statements in reference to a clergyman are actionable per se—the court is to decide—proof as to the action of the pastors congregation—punitive damages — defense of justification not inteiposed in good faith.</p> <p>A newspaper article, published concerning the plaintiff, a clergyman of the Baptist denomination and a pastor of one of the congregations of that church, headed, “ Minister Curses in Court,” “ ‘ You’re a--Skunk ’ says the Rev. Dr. Potter to Lawyer Clinch”’ and which charges the said Rev. Dr. Potter with having, on the trial of a judicial proceeding, instituted by the said minister to determine his right to the possession of certain church buildings belonging to his congregation, said, “ I’d like to punch that---,” and also, “I’d like to punch that damned skunk in the head,” is actionable per se, although not spoken of the plaintiff in his ministerial or clerical capacity, because it tends to deprive him of his benefice, to subject him to deposition .from his office or to present him as unfit to fill that office.</p> <p>The question whether a defamatory article concerning a clergyman would have a tendency to deprive him of his office or exhibit him as a person unfit to continue his calling must, where it arises upon the construction of the article itself, be determined by the court from the fair and ordinary meaning of the words used in the article.</p> <p>Where, upon the trial of an action based upon such libel, it is shown that the congregation called a council of other church congregations to consider as an advisory body charges against the plaintiff, and that a committee appointed by the council reported in some respects adversely to the plaintiff, the plaintiff may properly be allowed to show that his own congregation, which was an independent organization, repudiated' the report of the committee and expressed its confidence in him.</p> <p>Where it appears that the libelous article was communicated to the defendant through the telephone by a reporter, during the recess of the court in which the proceeding referred to in the article was pending, and was written out in the office of the defendant’s newspaper and was printed and circulated on the same afternoon before any attempt had been made to verify the reporter’s account, the court may properly refuse to charge the jury that they can not award punitive damages and that there is no evidence of actual malice.</p> <p>The court may properly charge that if the jury find that the defense of justifi cation interposed by the defendant “has not been sustained, you may also consider the motives which led to the setting up of tha't defense, and if you should conclude that'the defendants did not act in good faith when thus claiming the truth of the publication, this would afford you ground for an increase of the amount of exemplary damages, if any are awarded,” where it appears that there was some evidence from which the inference of bad faith could be ■' drawn, namely, that the defendant, at the request of the plaintiff, had published a refutation of the article and had set up that fact in the answer.</p>

Appeal by the defendant, Thomas Russell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Héw York on the 15th day of May, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the plaintiff, Mary L. Crawford, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 4th day of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 3d day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Hannah E. Bockwell and another,, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the= 18th day of June, 1901, upon the verdict of a jury,'and also from an order entered in said clerk’s office on the 10th day of J une, 1901, denying the said defendants’ motion for a new trial made upon the minutes.

■ Appeal by the petitioner, Patrick W. Cullinan, .as State Commissioner of Excise, 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 6th day of May, 1901, denying the petitioner’s motion to revoke and cancel a liquor tax. certificate issued to Bertha Dick and ■ transferred- to Solomon Schepper and Jacob Dick in their firm name of Schepper & Co.

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 11th day of May, 1901, upon the verdict of a jury for $1,000, and ■also from an order entered in said clerk’s office on the 10th day of May, 1901, denying the defendant’s motion for a new trial made ■upon the minutes.

Appeal by Ellen E. Glendinning and others, as executors, etc., of Robert Glendinning, deceased, from an order of the Surrogate’s ■Court of the county of Mew York, entered in said.Surrogate’s Court ■on the 20th day of Movember, 1901, affirming upon appeal an order ■of- the Surrogate’s Court, entered upon the report of an appraiser, fixing and assessing the tax upon the transfer of the property of the decedent.

Appeal by the plaintiffs, Richard S. Peale and another, from a judgment of the Supreme Court in favor of the defendant George C. Bartlett, entered in the office of the clerk of the county of New York on the 28 th day of May, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of June, 1901 denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the defendant, James Gordon Bennett, 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 December, 1900, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 27th day of December, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Dunlap & Co., 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 decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

<p>Libel — a notice, sent by a surety company to persons who had certified to the character of one for whose fidelity it had given a bond, that he was a defaulter, is privileged — when malice will not be implied therefrom.</p> <p>Where a surety company, upon learning that an employee, for whose fidelity it had given a bond, had failed to turn over to his employer certain money collected by him and could not be found, sends to each of the persons, upon the faith of whose statements as to the character and integrity of the missing employee it had issued the bond, a letter stating: “We are now informed that Dinsberg has disappeared with certain cash collections and we are unable to locate him. In view of these conditions, we will be greatly obliged if you will give us such information as you have or may be able to obtain which may aid us in locating the defaulter,” such letter is privileged, and will not sustain an action of libel brought by the employee against the surety company, unless . the plaintiff shows malice on the part of the surety company; malice will not be implied from the mere sending of the letters.</p>

<p>Appeal by the defendant, Gertrude M. Mount, as ancillary executrix of the last will and testament of Henry R. Mount, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 15th day of August, 1901, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the defendant, James Gordon Bennett, 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 April, 1901, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office'on the 4th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Pensions to retired school teachers in New York city — an act conferring them on teachers who resigned before the pension system was created is unconstitutional.</p> <p>Chapter 725 of the Laws of 1900, which designates certain persons who had retired from their positions as teachers in the public schools of the city of New York, and directs the board of education to place their names on the pension list of retired teachers, created pursuant to chapter 296 of the Laws of 1894, as re-enacted in .section 1083 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by chap, 91 of the Laws of 1898), and to pay to each of them the annuity prescribed by said statutes, is unconstitutional, so far'as it relates to teachers who resigned, before the enactment of chapter-296 of the Laws of 1894, at a time when no provision had been made for pensioning teachers.</p> <p>Yan Brunt, P. J., dissented on the subject of costs.</p>

<p>Appeal by Mary M. Irvin, as surviving executrix, etc., of Richard Irvin, Jr., deceased, from ah order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 2d day of December, 1901, directing her to file an account of the proceedings of Richard Irvin, Jr., as executor of the last will and testament of Alexander P. Irvin, deceased.</p> <p>The petition upon which this proceeding was begun was filed August 2, 1901.</p>

Appeal by Charles N. Talbot, as assignee for the benefit of creditors of Andrew J. Robinson, from so much of a judgment of the Supreme Court in favor of the plaintiff and certain defendants,, entered in the office of the clerk of the county of New York on the 3d day of June, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, as adjudges that the plaintiff and the defendants Clarence L. Smith and William C. W. Child have good and valid…

<p>Appeal by the defendant, Mary A. Parent, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of April,, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Standard Oil 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 June, 1901, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 28th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, William G. Jughardt, as administrator, etc., of Johanna H. Elizabeth Jughardt, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 31st day of January, 1901, denying the…

Appeal by tbe defendant, The City of Yew York, from a judgihent of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 16th day of April; 1901, upon the verdict of a jury for $1,000, and' also from an order entered in said clerk’s office on the 25th day of April, 1901, denying the defendant’s' motion for a new trial made upon the minutes.

Appeal by the defendant, Cullen Brothers & Lewis Steel Company from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 31st day of May, 1901, upon the decision of the court.

Appeal by the plaintiff, John P, Tuomey, 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 September, 1901, granting the defendant’s motion to change the place of trial of the action from the county of Kings to the county of Oswego.

Appeal by the defendant, Raymond Hoagland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of June, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Attachment — amendment of a wairant by inserting the ground upon which it was granted.</p> <p>Where the affidavits upon which a warrant of attachment issues are sufficient to confer jurisdiction on the court to issue the warrant, the court has power, under section 723 of the Code of Civil Procedure, even as against a person who acquires an interest in the attached property after the warrant is issued, to supply by amendment nunc pro tune the omission of the warrant to state the ground upon which it was granted.</p>

Appeal by the plaintiff, George Wallace, 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 Nassau on The 21st day of September, 1901, granting the defendants’ motion for an order that the second amended complaint be made more definite and certain and for a bill of particulars.

<p>Motion for the direction of a verdict—effect thereof as a waiver—savings bank deposit — withdrawal thereof on checks, purporting to be signed by the depositor, accompanied with the pass book.</p> <p>A motion for the direction of a verdict, made after the denial of the moving party’s motion to have certain questions submitted to the jury, operates as a waiver of the motion to submit.</p> <p>In an action brought by a depositor in a savings bank to recover an alleged balance of her deposit, it appeared that the portion of the deposit which the plaintiff sought to recover had been paid out by the bank upon orders purporting to be signed by the plaintiff, and presented to the bank with the deposit book at the time such payments were made.</p> <p>The plaintiff testified that shortly after she received the deposit book, one Smith, whom she afterwards married, called upon her, took the deposit book and walked out of the house with it, and two days afterwards told her that he had lost it. She gave no notice to the bank of these facts.</p> <p>One df the rules of the savings bank, printed in the deposit book, was as follows; “All payments made to persons producing the deposit book, whether with or without an order or letter of attorney, purporting to be signed by the depositor, shall be deemed good and valid payments to depositors respectively, and discharge the bank therefrom. Depositors alone are responsible for the safe keeping of their books, and the proper withdrawal of money. No withdrawal will be allowed without the book, and the book is the order of withdrawal.”</p> <p>Both parties requested the direction of a verdict and the court decided in favor of the defendant.</p> <p>Meld, that the judgment should be affirmed;</p> <p>That, in the view of the evidence most favorable to the defendant, there was nothing to put the bank upon such notice as would require it to exercise greater diligence than would have been required by its rule in cases where only the deposit book was produced.</p>

Appeal by the defendants, William II. Maxwell, as president, and others, constituting the board of examiners of the board of education of the city of Hew 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 13th day of September, 1901, directing the issuance of a writ of certiorari.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county.of Kings on the 11th day of April, 1901, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 18th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings' on the 5th day of October, 1900, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 8th day of October, .1900, denying the defendant’s motion for a hew trial made upon the minutes, and also from an order entered in said clerk’s office on the…

Appeal by the defendant, The Brooklyn Heights Railroad Com-, pony, 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 9th day of May, 1901, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the Otli day of May, 1901, denying the defendant’s motion for. a new trial made upon the minutes.

Appeal by the plaintiff, Mary White, as administratrix, etc., of William White, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the ■county of Orange on the 8th day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the - Orange Trial Term.

Appeal by the Ary eh Lodge, No. 6, of the Independent Order, Free Sons of Israel, 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 7th day of October, 1901, consenting to the removal of the remains of Lazarus Bauer, deceased,, from their place of interment in the Maimonides Benevolent Society Cemetery to a family plot in said cemetery.

Appeal by the plaintiff, Alfred Skeels, 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 4th day of May, 1901, staying the plaintiff’s proceeding in the above-entitled action until the payment of $508.29, costs awarded to the. defendant, Peter Bo.dine and another, by a judgment in an action-in the county of New York, in which they were sued by the same-plaintiff.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1901, upon the verdict of a jury for §750, and also from an order entered in said clerk’s office on the 20th day of May,. 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence—injury too girl of nine crossing a city street,.after loolcing both ways mid. seeing a car 170 feet distant — testimony not objected to does not afford a ground for reversal. '</p> <p>In an action to recover damages for injuries sustained by the plaintiff, a girl nine years old, who was run over by one of the' defendant’s electric cars while attempting to cross a city street, evidence that the plaintiff, when near the gutter and' before attempting to cross the street, looked both ways and observed • that the car which ran over her was then about 170 feet distant, and that, she proceeded at a fast walk, is sufficient .to require the question of contributory negligence to be submitted to the jury.</p> <p>Semble, that, on an appeal from a j udgment, error cannot be predicated upon the reception upon the trial of alleged, incompetent' evidence;- where the appellant made no objection to the reception of such evidence nór any motion to strike it out, and took no exception to the charge of the trial court in which the court referred to such testimony.</p>

<p>Appeal by the contestant, Mary A. Dali, from a decree of the Surrogate’s Court of the county of Kings, entered in the said Surrogate’s Court on the 24th day of April, 1901, admitting to probate a paper purporting to be the last will and testament of Harriette W. Brand, deceased.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of June, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 22d day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 19tli day .of June, 1901, upon the report of a referee.

Appeal by the plaintiff, William A. C. Hatthie, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of June, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

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 1st day of May, 1900, upon the verdict of a jury for $5,000* and also from an order entered in said clerk’s office on the 1st day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Philipp Hies, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 25th day of January, 1901, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case after a trial at the Kings County Trial Term.

Appeal by the defendant, The City of Poughkeepsie, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 20th day of May, 1901, upon the verdict of a jury for $1,500, and also from an order bearing date the 14th day of May, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York and North Shore Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 4th day of February, 1901, upon the verdict of a jury for $5,000, and also from an order bearing date the 30th day of January, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary Oldfield, as executrix, etc., of John Oldfield, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in, the office of the clerk of the county of Dutchess on the 2d day of July, 1900, upon the decision of the court, rendered after a trial at the Dutchess County Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, Josephine Hamilton, individually and as administratrix, etc., of Henry Hamilton, deceased, 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.</p>

Appeal by the defendant, the Metropolitan Street- Railway Company, 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 17th day of October, 1901, denying the defendant’s motion to change the place of trial of the action from the county of Kings to the county of New York.

<p>Appeal by Henry S. Kearny, as commissioner of public buildings, lighting and supplies of the city of Hew York, from an order of the Supreme Court, made at the Queens County Special Term</p> <p>and entered in the office of the clerk of the county of Queens on the 22d day of July, 1901, granting a peremptory writ of mandamus, requiring him to issue to the Seaboard Telegraph and Telephone Company a permit to repair, replace and put in order its lines of poles and wires.</p>

Appeal by the plaintiff, Thomas Francis, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 23d day of August, 1901, upon the decision of the court, dismissing the complaint upon the merits.

<p>Appeal by the defendants, Julia.Bond'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 Nassau on the 6th day óf April, 1901, upon the decision.of the court rendered after a trial at the Nassau Special Term.</p>

Appeal by the petitioner, William H. Douglas, froni an order of the Oounty Court of Westchester county, entered in the office of the clerk of the county of Westchester on the 18th day of May, 1901, denying the petitioner’s motion to compel the board of supervisors of Westchester county to refund certain taxes paid by him.

Appeal by the plaintiff, Bernhard FT. Reimers, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of May, 1901, interpleading and substituting Christina Schmitt, as administratrix, etc., of Frederick J. Weiner, deceased, and others, certain of the next of kin of Frederick J. Weiner, deceased, as defendants, in place and instead of Christina Schmitt, individually.

Appeal by the plaintiff, Maggie Dixson, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 31st day of July, 1901, setting aside the verdict of the jury rendered in favor of the plaintiff for $3,500, and granting a new trial of the action on the ground of surprise.

Appeal by the defendant, Joseph H. Bauland Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of Hay, 1901, upon the verdict of a jury for' $3,000, and also from an order entered in said clerk’s on the 13th day of Hay, 1901, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by tlie plaintiff, William K. Holmes, Ji\, and by Joseph F. Wright, the receiver in supplementary proceedings* from an order of the County Court of Kings county, entered in the office- of the clerk of the county of Kings on the 3d day of August, 1901, denying a motion to punish the defendant for contempt of court, for interfering with the receiver.

Appeal by the petitioner, Alma Louise Earner, and by William C. Beecher, her attorney, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 17th day of September, 1901, and entered in the office of the clerk of the county of Kings, denying a motion for an order directing the committee of the property of the petitioner to pay certain bills for services rendered upon her- application for discharge from judicial confinement.

<p> Municipal Court—the justice in the district in which the action is brought must deputize the person to serve its process. </p> <p>Sections 1301 and 1709 of the Consolidation Act (Laws of 1882, chap. 410), relative to actions in the District Court of the former city of New York, providing that only the justice of the district or District Court in which the action was commenced could deputize a person to serve the process, are made applicable to the Municipal Court of the city of New York by section 1369 of the Greater New York charter (Laws of 1897, chap. 378).</p> <p>Section 1368 of the Greater New York charter, which provides that the Municipal Court in any district shall have power to send its process and other mandates into any other district for service or execution and to enforce obedience thereto, is not inconsistent with such sections of the Consolidation Act.</p> <p>Appeal by the plaintiffs, Emil J. Winterroth and another, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, entered on the 1st day of May, 1901, dismissing the complaint on the ground that the court had not acquired jurisdiction of the defendant.</p>

Appeal by the' defendants, John A. Moore and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 15th day of June 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant,. The Preferred Accident Insurance Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of July, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the Utli day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Reese Carpenter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 25th day of May, 1901, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

<p>Action for personal injuries—exhibition of the plaintiff’s bare body to the jury— proof to determine a witness’ estimate of speed and to test a witness’ recollection.</p> <p>A plaintiff, in an action to recover damages for personal injuries, who alleges that several of his ribs were fractured, that he had been injured about the body and internally, and that the injuries were permanent, may properly be allowed to exhibit his bared body to the jury and to have pointed out thereon the physical signs of the injuries where the defendant announces its intention of dis puting the question whether the plaintiff’s injuries were as serious as he claimed them to be.</p> <p>On the trial of the action it appeared that the plaintiff sustained his injuries in . consequence of a collision between a coal cart, which he was driving, and one of the defendant’s cars, on which there .were two motormen, one of whom was a “ green hand,” who was being instructed by the other one. Both motormen were sworn on the trial as to the speed at which the car was traveling when the accident happened. The experienced motorman, who was named Lewis, testified: “ We never go at a high rate of speed at any crossing.” The inexperi-</p> <p>énced motorman testified that he had heen taught to proceed at the rate of eight miles an hour between intersecting streets and slow down to six miles an hour when crossing an intersecting street. Upon his cross-examination he was asked: “ Was there any time from Harlem down that Lewis sent this car across ' an intersecting street at a less rate of speed than six miles an hour ? ”</p> <p>Held, that the question was competent to determine what Lewis meant by a high rate of speed and also to test the recollection of an adverse witness as to the speed of the car at this particular point.</p>

Appeal by the contestant, Catherine Mulcahy, from a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 10th day of September, 1900, admitting to probate a paper purporting to be the last will and testament, and codicil thereto, of Ellen Crane, deceased. The probate of the will was contested on the ground that it was obtained by undue influence practised upon the testatrix by one Sulr divan, a legatee mentioned in the will.

Appeal by Elizabeth Voris, as administratrix, etc., of Jesse Mills, deceased, from an order of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 12th day of September, 1901, directing her to render and ñle an account of her proceedings as such administratrix.

<p>Appeal by the defendant, William R. McClellan, 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 12th day of April, 1901, upon the verdict of a jury for $5,000, and also from an order bearing date the 11th day of April, 1901, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, George Herdje, 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 1st day of October, 1901, upon the report of a referee enjoining and restraining the defendant from proceeding with the erection of certain buildings under the plans filed in the department of buildings for the borough of Brooklyn.

Appeal by the plaintiff, Frederick Shirtcliffe, from a judgment of the Municipal Court of the city of Mew York, borough of. Brooklyn, in favor of the defendant, entered on the 13th day of May, 1901, upon the decision of'the court, The action', was brought to recover sick benefits, to which the plaintiff claimed to be entitled as a member of the defendant society, which is a voluntary association organized for benevolent and social purposes.

Appeal by the defendant, Christian Brengel, from a judgment of the County Court of Rassau county in favor of the plaintiff, entered in the office of the clerk of the county of Rassau on the 29th day of May, 1901, upon the verdict of a 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>Appeal by the defendants, Jessie E. Ham and others, from a judgment of the Supreme Court in favor of the defendants, Madison Ham and another,, entered in the office of the clerk of the county of Nassau on the 1st day of July, 1901, upon the report of a referee dismissing the complaint' in an action for partition.</p> <p>Judgment affirmed, with costs, on the opinion of the referee.</p> <p>All concurred.</p>

<p>Mutual benefit association — under what by-lams, a will is not a “ testamentary disposition ” of a death benefit.</p> <p>The by-laws of a mutual benefit association permitted a member to designate his beneficiary by signing a paper adopted and used by the association, called a “ Testamentary Disposition.” By amendment thereof it was provided that the benefit should be paid to “ the husband, wife, affianced husband, affianced wife child, child by legal adoption, parent, parent by legal adoption, relatives of or persons dependent upon the member.”</p> <p>They further provided that if a death benefit certificate was issued to any of the parties designated in the foregoing class, and all such class should die, the member might direct that the death benefit should be paid to any other person. Meld, that a will executed by a member who left “no relatives,” in which he bequeathed the benefit to a person whom he nominated as his executrix,' was not'the “testamentary disposition” provided for by the by-laws, and that the legatee, in her capacity as executrix, could not maintain an action against the association to recover the death benefit.</p>

<p>- Appeal hy Joseph Gorden and others, as executors and trustees under the will of William Gorden, deceased, and others, from portions of a decree of the Surrogate’s Court of- the county of Kings, entered in said Surrogate’s Court on the 31st day of January, 1901,' settling the accounts of the executors and trustees under the will of William Gorden, deceased.</p>

<p>Appeal by the plaintiff, Elizabeth Pronk, from a judgment of the Supreme Court in favor of the defendant,- entered in the office of the clerk of the county of Kings on the 18th day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on thé 13th day of' February, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p> Town assessors—compensation of, in the county of Nassau. </p> <p>Assuming that section 2 of chapter 629 of the Laws of 1893, providing that the assessors of towns in the county of Queens shall receive three dollars per day as compensation for their services, was made applicable to the county of Nassau, which was erected out of a portion of the county of Queens, by section 18 of chapter 588 of the Laws of 1898, providing: “All acts and parts of acts specifically applicable to the county of Queens, and now in force in the. county of Queens, and not inconsistent with this act, shall continue in fui force and effect in the county of Nassau, as though the said county of Nassau had been in existence at the time of the passage of the said acts and as though the name of the said county of Nassau had appeared in the said acts or parts of acts,” the special act of 1893 was repealed, so far as the county of Nassau is concerned, by chapter 292 of the Laws of 1900, which provides that town assessors shall receive two dollars per day, except that in the county of Monroe they shall receive three dollars per day.</p>

, Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the ,21st day of February, 1901, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 6th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — the case, where there is evidence to sustain the cause of action, must be submitted to the jury—a nonsuit, granted, after a verdict for the plaintiff, set aside.</p> <p>In an action to recover damages resulting from the death of the plaintiff's intestate in consequence of the alleged negligence of the defendant, a motion for a nonsuit was made at the close of the plaintiff’s case and at the close of all the evidence. The court reserved the motion and submitted certain specific questions of fact to the jury. After the jury had rendered a verdict in the plaintiff’s favor, the court granted the motion for a nonsuit.</p> <p>The evidence given on behalf of the plaintiff was sufficient; if believed, to support the verdict, but much of it was so improbable and so contrary to some of the established facts and circumstances as to render it almost incredible.</p> <p>The court, in granting the motion for a nonsuit, based its decision in part upon the ground that the verdict was against the weight of evidence.</p> <p>Held, that the order granting the nonsuit should be reversed, as under the cir- . cumstances the plaintiff was entitled to have the case submitted to the jury, but that as the Appellate Division was not satisfied with the verdict it would not reinstate the same but would order a new trial.</p> <p>Williams, J.> dissented.</p>

<p> Contempt —amount of fine which may he imposed on a surety on an undertaking on appeal to the Court of Appeals, who swears falsely as to his property. </p> <p>In order to secure a stay of proceedings, pending an appeal to the Court of Appeals from a judgment foreclosing a mortgage, an undertaking was given by which the sureties jointly and severally undertook that the appellants would pay all costs and damages which might be awarded against them on such appeal not exceeding $500, and also that in the event of the affirmance of the judgment or the dismissal of the appeal the appellants would “pay any. deficiency which may occur on the sale in discharging the sum to pay which the sale is directed, with interests and costs and expenses chargeable against the proceeds of the sale, not exceeding the sum of five thousand dollars.”</p> <p>The judgment appealed from was affirmed and the premises were thereafter sold. A deficiency of $6,688.95 arose, for which amount judgment was entered against the mortgagor.</p> <p>An action was then brought upon the undertaking which resulted in a judgment against the sureties for §5,121.82 which represented the amount of such deficiency as limited by the condition of the undertaking, together with interest and costs.</p> <p>After execution on this judgment had been returned unsatisfied, the assignee of the judgment learned that one of the sureties on the undertaking was insolvent when he. executed such undertaking, and that the statement in the affidavit annexed thereto, in which he swore that he was a freeholder and worth the sum of §10,000 over and above his liabilities, was false.</p> <p>He thereupon instituted a proceeding-to punish such surety for contempt, which resulted in an order adjudging such surety guilty of contempt and fining him the sum of $6,000.</p> <p>Reid, that as the surety had obligated himself to pay any deficiency which might arise upon the sale of the mortgaged premises, not exceeding §5,000, the actual loss sustained by the plaintiff in consequence of the surety’s contempt of court in swearing falsely, was the deficiency arising upon the foreclosure sale, and that the judgment recovered against the sureties furnished a correct basis upon which to determine the amount' of the plaintiff’s loss, and consequently the amount of the fine which might properly be imposed;</p> <p>That the fine of §6,000 should be reduced to §5,121.82.</p> <p>Williams, J., dissented.</p>

<p>Obstruction of the dock of an abutting owner on a private canal by the overlapping of boats discharging grain into an elevatoi' on the land of an adjoining abutting owner — complaint asking for an injunction dismissed — damage held to be unsubstantial.'</p> <p>In 1834 the owners of property abutting upon the Evans Ship Canal, a private waterway in the city of Buffalo, entered into an agreement authorizing the owners of two-thirds of the land abutting upon the canal to fix a tariff for dockage and wharfage, and providing: “Sixth. That a free, undisturbed .and unobstructed right of way, ingress and egress, through, in and from all and every part of said canal, shall be allowed and guaranteed to each and every of the said parties, their heirs and assigns, and every person or persons connected' in trade or business with them, provided, however, that the said parties, their and each of their heirs, assigns and every person or persons trading as afore- . said, shall be liable and subject to such tariff or rates of charges for wharfage and dockage as may be established, determined and settled by said two-thirds as aforesaid.” No tariff of charges for dockage or wharfage was ever established pursuant to the agreement.</p> <p>About 1881 the Swift Sure grain elevator was erected upon premises abutting upon the canal, which elevator has not been ■ in use for the past eleven ■ years. In 1888 or 1889 the Ontario grain elevator was erected upon the adjoining premises, and since that time it has been in continuous use. The dock frontage of the Swift Sure elevator is 160 feet, and that of the Ontario elevator is 200 feet, and as the vessels in which grain is brought to the Ontario elevator vary in length from. 250 feet to 400 feet, they necessarily overlap some portion, if not all, of the dock in front of the Swift Sure elevator. Such overlapping did not occasion damage to the owners of the dock in front of the Swift Sure elevator, and it continued since the erection of the Ontario elevator without objection on the part of the owners of the Swift Sure elevator until the season of 1898.</p> <p>In an action brought by the owners of the Swift Sure elevator against the owners of the Ontario elevator to restrain the latter from allowing vessels moored in front of their premises to overlap the plaintiffs’ premises and to recover the reasonable tolls, dockage and wharfage for the past use of such docks,</p> <p>Reid, that a judgment dismissing the complaint should be affirmed;</p> <p>That the plaintiffs were not entitled to injunctive relief against the long-continued privilege of overlapping, as such relief would necessarily deprive the defendants of the use of their elevator and of the right secured to them by the contract made in 1884 of free ingress and egress in and to every part of the canal for the transaction of business or commerce;</p> <p>That the damages sustained by the plaintiffs were not substantial enough to give them an absolute right to have the court retain the case in order to assess such damages.</p> <p>Quiere, whether the plaintiffs were entitled to damages.</p>

Appeal by the plaintiff, Mollie Harris, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cattaraugus on the 24th day of September, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Cattaraugus Trial Term,

Appeal by the defendant, The Niagara Falls Hydraulic Power and Manufacturing Company, from a judgment of the. Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 2lst day of September, 1900, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s -office- on the 21st day of September, .1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Buffalo Furnace Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 28th day of January, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office, on the 28th day of March, ■ ■ 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, William Taylor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 3d day of April, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term.</p> <p>The action was commenced on the 1st day of December, 1898, to recover damages alleged to have been sustained by the plaintiff on account of false and fraudulent representations made by the defendant, by which the plaintiff was induced to sell to one Charles F. Lighthouse, who was financially irresponsible, about $5,000 worth of leather for which Lighthouse neglected to pay, and the plaintiff was unable to collect the value thereof.</p>

Appeal by the defendant, John Richmond, from a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19th day of July, 1901, upon the verdict of a jury for ninety-eight dollars: and ninety cents, and also from an order entered in said clerk’s office on the 18th day of July, 1901, denying the defendant’s motion for a. new trial made upon the minutes.

Appeal by the plaintiff, Lewis N. Nortliam, as assignee for the benefit of creditors of Wallace G. Northam, from an order of the Supreme Court, made at the Jefferson Trial Term and entered in the office of the clerk of the county of Jefferson on the 18th day of July, 1901, granting the defendant’s motion to set aside a verdict previously rendered in favor of the plaintiff, upon the ground that it was against the weight of evidence, and granting a new trial.

Appeal by the plaintiff, Charles W. Maier, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 13th day .of November, 1901, changing the place of trial of the action from the ■county of Seneca, where it was brought, to the county of Erie, upon the ground that the action was brought to procure a judgment ■annulling a contract affecting an interest in real'property situate in the county of…

<p>Bill of pa/rticula/rs stating certain occasions of adulterous intercourse and the plaintiff’s inability to state the others, served under an order not appealed from — appeal from a subsequent order precluding the plaintiff from giving evidence as to the latter occasions.</p> <p>The complaint, in an action to recover damages for the alienation of the affections of the plaintiff’s wife, alleged that the defendant committed adultery with the plaintiff’s wife, at various places, and the court ordered the plaintiff to serve a bill of particulars specifying the particular times at which the adulterous acts were committed. The plaintiff did not appeal from the order, but served a bill of particulars in which he stated the particular times at which certain of the acts of adultery were committed and that he was unable to state the particular time at which the other acts of adultery were committed. The court then made an «order precluding the plaintiff from giving evidence oh the trial of any acts of ■ ¡adultery except those, the time of the commission of which he had stated in the hill of particulars.</p> <p>"Upon-an appeal from such order,</p> <p>Jleld, that the court could not determine whether or not the order directing the service of the bill of particulars was properly granted, and that as the plaintiff had-not complied with such order the court was justified in making the ¡order from which the appeal was taken.</p>

<p>Revocation of the dedication of land foo' a highway — taking private docks for a-street—user imposing a street servitude — title acquired by the obstruction of a- ' public highway—sixty years’ user.</p> <p>A dedication of land for use as a public highway may be revoked at any time-before it has been accepted and the rights of third parties have become vested.</p> <p>The common council of a city has no power by a formal resolution to take private docks and wharves for a public street without making compensation to the .owners.</p> <p>The user which will impose a street servitude upon a private wharf must be that, to which the ordinary highway or street is subject.</p> <p>Where the owners- of the legal title to a strip of land abutting upon a navigable river construct private docks thereon, covering the entire width of the strip', build permanent balconies over such docks and loád them with freight which prevent the passage of teams thereon, the fact that coincidentally with the-private use of the docks the public was permitted to travel upon them, and that the city authorities assumed to regulate, to some extent, the repair of the docks, although they never sought to interfere with the use to which the abutting owners subjected them, does not make the docks a public highway, especially when there was no formal dedication of the strip to the public.</p> <p>Assuming that the land in. question was originally a public highway, its use for a period of sixty years in the manner above described operates to extinguish the public easement therein both under the rules applicable to adverse posses- . sion and under chapter 311 of the Laws of 1861, re-enacted in section 99 of the General Highway Law (Laws of 1890, chap. 568), which provides that the nonuser of a highway for six years shall constitute an abandonment thereof. The rule that no obstruction of a public highway, however long continued, will ripen into a title by adverse possession has no application to a case where the-street has been appropriated for its entire width without let or disturbance and by a user that has prevented travel thereon.</p>

<p>Appeal by .the petitioner, Spencer S. Bullis, from an order of the-Supreme Court, made at the Erie Special Term and entered in the-office of the cleric of the county of Cattaraugus on the 3d day of September, 1901, denying his application for the cancellation and discharge of record of certain judgments entered against him.</p> <p>This proceedings was commenced by the petition of the appellant,, which shows that he has been discharged from his debts in compliance with the National Bankrupt Law; that more than one year has-elapsed since such discharge; that two judgments recited in the-petition are docketed against him, and the motion for their cancellation and discharge is made pursuant to section 1268 of the Code of' Civil Procedure. The judgment creditor opposed the motion,, and. the material facts contained in the record presented are set forth in the accompanying opinion.</p>

<p>Appeal by the plaintiff, George L. Smith, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 13th day of Febru ary, 1901, upon the report of a referee dismissing the complaint upon the merits.</p>

Appeal by the plaintiff, Abigail M. Roberson, an infant, by her guardian ad litem, Margaret É. Bell, from an order-of the Supreme Court,, made at the Monroe Special Term and. entered in the office. of the clerk of the county of Monroe on the 13th day of November 1901, disallowing an item of forty dollars costs for the reargument of the appeal at the Appellate Division.

<p>Appeal by.the defendant, Frank B. Mills, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 2d day of May, 1901, upon the verdict of a jury, and also from an order bearing date the 26th day of- April, 1901, and entered in said clerk’s office, denying the defendant’s motion -for a new trial made upon the minutes.</p>

Appeal by the defendant, The Erie 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 Cattaraugus on the 14th day of February, 1901, upon the verdici of a jury, and also from an order entered in said clerk’s office on the '6th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes. .

Appeal by the defendant, Louis Windholz, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oneida on the. 4th day of November, 1901, as amended by an order entered in said clerk’s office on the 19th day of November, 1901, denying said defendant’s, motion to vacate an injunction order granted by the county judge, of Oneida county, enjoining the defendants from selling vinegar containing certain…

Appeal by the plaintiff, the Citizens’ Permanent Savings and Loan Association, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Monroe on the 12th day of June, 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 7 th day of J une, 1901, denying the plaintiff’s motion for a new trial made upon the- minutes.

. Appeal by Agnes .Hubbard, a property owner, from an order of . the Supreme. Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of July, 1899, confirming the report of commissioners fixing .the amount of damages, and from the appraisal and report so confirmed. •

<p>Negligence — injury from a snow plow — approach by a mail carrier to railroad tracks on the mistaken assumption that awhisUe was sounded by the mail train — contributory negligence.</p> <p>In an action to recover damages for personal injuries, it appeared that the plaintiff. was engaged in carrying mail to and from the mail trains at the defendant’s station at Mallory, N. T; At this station the defendant’s tracks consisted of a main track and a siditig, the distance between the two tracks being six feet nine and seven-tenths inches. On the day of the accident the plain- , tiff went to the station to meet a mail train due there a little before two o’clock in the afternoon. Considerable snow had fallen and the train was late. After sitting in the station for a short timer the plaintiff heard an engine whistle at the crossing about half a mile south of the depot and the station agent then said to him, “ George, here comes your train.” The plaintiff then went to ‘ meet the supposed mail train and when he had reached the space between the siding and the main track he was struck by a snow plow, which was running on the time of the mail train and which was propelled by an engine traveling at the rate of thirty-five or forty miles an hour, and which the plaintiff contended had not given adequate signals of its approach.</p> <p>, An ordinary passenger or mail coach, projects over the track about two feet five-inches, while the snow plow projected from seven to eleven inches further.</p> <p>The evidence indicated that. although the view of the approaching snow plow was obstructed'to some, extent' by some freight cars standing upon the side ' track, the plaintiff.could, before he came within three feet of the main track,. have looked by the freight cars a long distance down that track.</p> <p>Held, that the plaintiff had not established his freedom from contributory . negligence; ...</p> <p>That the plaintiff was not justified in. assuming that the approaching train was: ' the mail train;</p> <p>That if. he.had looked dowhthemain track, when he might have done so, he would: have seen the snow plow, and; that if he did not look he assumed the risk of:, the accident.</p>

<p>Ball dub — assignment of a contract to employ a player by one dub to another-— what evidence thereof must be given to the player — what constitutes a breach thereof—measwre of damage» for a breach — tender of performance unnecessary — • proof as to-other employment — effect of an option given the club to discharge the • player on notice.</p> <p>Where the Brooklyn Baseball Club, which is a member of the National League of Professional Baseball Clubs, employs a player for the baseball season, namely, from April 15 to October 15, 1899, under a. contract reserving to the club the right to assign it to any other club, a member of the National League, and providing that, upon acceptance of such assignment by such •other member, said contract shall “continue in full force with all its terms, provisions and conditions unimpaired and unaffected by such assignment, binding and obligatory as well upon the party of the second part (the player) as upon the said club member,” the player, in the event of an assignment being made, is entitled to reasonable assurance and proofs that the assignment has been made and accepted in such a way that it will bind the assignee and secure from it a full performance of the original contract.</p> <p>He is not bound to recognize, as an assignment, a notification from the president ■ of the alleged assignee in which said president states that his club has procured an assignment of the player’s contract, and at. the same timé intimates that it will not accept such assignment unless the player will consent to a readjustment and reduction of his salary.</p> <p>In such a case the action of the Brooklyn club, in insisting that the alleged assignment is binding upon the player and that it is relieved from liability under the contract, constitutes a breach thereof.</p> <p>Semble, that in view of the attitude of thé Brooklyn club, the player was not bound to make a tender of performance.</p> <p>In an action brought by. the player against the Brooklyn club to recover damages for such breach of the contract, the plaintiff is not bound to show, as part of his case, that he has sought and failed to procure other and more profitable employment than that in which he did engage-, but the burden rests upon the defendant to show that such employment has been offered and declined or might have been found.</p> <p>A provision in the contract that the Brooklyn club might “at anytime after the beginning and prior to the completion of the period of this contract, give the party of the- second part (the player) ten days’ written notice of its option -and intention to end and determine all its liabilities and obligations under this ■contract, in which event, upon the expiration of said ten days, all liabilities ¡and obligations undertaken by said party of the first' part or its assigns ” should ¡at once “ cease and determine,” does not limit the defendant’s liability for ■damages to a period of ten days, for the reason, first, that the defendant did .not attempt to take advantage of this clause; second, that the- application of the clause was limited to a discharge of the player during the playing season, •whereas the breach of contract took place in March; and, third, that the clause in question contemplated an absolute release of the player and a termination in all respects'of the contract.</p> <p>"Where, by the terms of the contract, the defendant is bound to employ the plaintiff for but one season, the plaintiff’s damages are presumptively the amount of the stipulated salary for that period, subject to reduction by the amount of wages earned by him.during that time in other employment. Adams, P, J., dissented.</p>

<p>Scaffolding — a ship in course of construction in a dry dock is a “ structure ” within, the meaning of the Labor Law —a staging in the hold thereof is a “ scaffolding.’’</p> <p>A ship in course of construction in a dry dock is. a “structure” within the meaning of section 18 of the Labor Law (Laws of 1897, chap. 415), imposing upon, employers the duty of furnishing their employees with safe scaffolding.</p> <p>A staging constructed in the hold of a vessel four hundred feet long, forty-eight feet wide¡ and from twenty-six to twenty-eight feet high, by laying-timbers across the hold-six or seven feet from the bottom, with the ends-resting upon the channel irons at each side of the vessel, and then laying a floor of planks upon such timbers, is a “scaffolding” within the meaning of section. 18 of the Labor Law.</p>

Appeal by Lafayette E. Pruyne, the testamentary guardian of Tirzah G. Bigelow, an infant, from a decree of the Surrogate’s Court of the county of Jefferson, entered in said Surrogate’s Court on the 18th day of July, 1901, settling his accounts as such testamentary guardian. While the appeal is from the whole of said decree, said appellant really complains of the same because it First.

<p>Appeal by the plaintiff, William M. Brown, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 2d day ■of August, 1901, upon the decision of the court, rendered after a trial at the Oneida Special Term, sustaining demurrers interposed by the defendants, upon the ground that the complaint does not state facts sufficient to constitute a cause of action.</p>

Appeal by the defendant, The Lake Ontario Beach Improvement Company, from an Order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 18th day of June, 1901, denying the defendant’s motion, made upon the minutes,, to set aside a verdict for $2,000 previously rendered in favor of the plaintiff.

<p>Punitive damages against a municipal corporation — storm overflow from a sewer into a natural watercourse flooding adjoining properly.</p> <p>Where a municipal corporation constructs at great expense a trunk sewer and installs therein a storm overflow, by which a portion of the surface water carried into the sewer during heavy rains is diverted into a natural watercourse, an owner of property abutting on the watercourse whose premises during .exceptionally heavy rainstorms are inundated by water discharged into the watercourse from the storm overflow, is not entitled to recover punitive damages from the municipal corporation.</p> <p>It is only under very extraordinary circumstances that punitive damages will be awarded against a municipal corporation.</p>

Judgment affirmed, with costs.— Appeal by the defendant from au interlocutory judgment sustaining the plaintiff's demurrer to defendant’s counterclaim.—

<p>Judgment affirmed, with costs.—Appeal from judgment entered upon decision of the court at Special Term.—</p>

<p>Judgment affirmed, with costs, with leave to plaintiff to withdraw demurrer on payment of costs in this court and in the court below.—Appeal from an interlocutory judgment overruling the plaintiff’s demurrer to the defendant’s separate defense.—</p>

<p>Order modified as directed in opinion and as modified affirmed, without costs.—Appeal from an order requiring bill of particulars of defendants’ counterclaim.—</p>

Judgment reversed, and judgment directed for defendant, dismissing complaint on the merits, without costs.—Appeal from a judgment entered upon the decision of the court after a trial at the New York Special Term.—

Judgment affirmed, with costs.— Appeal from a judgment entered upon the decision of the court dismissing the complaint after a trial at che New York Special Term.—

<p>Judgment affirmed, with costs.— Appeal from a judgment, entered upon the decision of the court rendered after trial at the New York Special Term, reforming a contract of insurance and dismissing the complaint.—</p>

<p>Judgment reversed, new trial granted before another referee, with costs to appellant to abide event.—Appeal by the defendant from a judgment of the Supreme Court, entered in the clerk’s office of the county of New York on the 29th day of August, 1901, upon the report of a referee.—</p>

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.— Appeal-by the defendant from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 21st day of Augusc, 1901, upon the verdict of a jury in favor of the plaintiff.—

<p>— Judgment affirmed, with costs.— Appeal from a judgment of foreclosure and sale entered in the office of the clerk of Westchester county on the 2d day of May, 1901.—</p>

<p>Judgment of the Municipal Court affirmed, with costs.—Appeal from á judgment of the Municipal Court in favor of the plaintiff.</p>

<p>of the Municipal Court affirmed, with costs.— Appeal from a judgment of the Municipal Court in favor of the plaintiff.—</p>

Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event.— Appeal from a-judgment in favor of the plaintiff and. against the defendant, entered upon a decision of the Municipal Court.—

Writ of certiorari dismissed, without costs.— Certiorari issued out of the Supreme Court and attested on the 27th day of June, 1900, to review the proceedings wherein the relator, William Platto, was dismissed from the police force of the city of Poughkeepsie.—

<p>Motion • denied, with ten dollars costs.—</p>

<p>—Judgment reversed and new trial ordered, with costs to the appellant to abide the event. —Appeal from a judgment of the Supreme Court, entered in the office of the clerk of the county o*f Chautauqua on the 1st day of October, 1900, upon the decision of the court rendered after a trial at the Chautauqua Special Term. The action was commenced on the 10th day of December, 1899, to procure a certain mortgage which is an apparent lien upon premises owned by the plaintiffs, together with an assignment thereof, to be canceled and discharged of record, upon the ground that it had merged in. a conveyance of the premises made by the mortgagors to one Mary A. Ward, the alleged owner of the mortgage; which relief was in substance awarded by the judgment appealed from.—</p>

Order reversed and decree directed revoking the letters of administration issued to the respondent, with ten dollars costs and disbursements to appellant, payable out of the estate.—Appeal from an order of the Surrogate's Court of Erie county, made December 3, 1901, dismissing a petition for the revocation of letters of administration.—