Volume 68 — New York Supplement

<p>Appeal from trial term, Tompkins county.</p> <p>Action by Andrew J. Abel against the Phoenix Insurance Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Action by Hugh F. Dolan against Jeremiah Leary and others to establish title to land. Judgment for defendants.</p>

Action by Frank S. Pratt against the Greenwich & Johnsonville Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action to recover for work done by Niels Poulson and others against Jose F. De Navarro and others. From judgment in favor of defendants, plaintiffs appeal.

<p>Appeal from municipal court, borough of Brooklyn, Fifth district.</p> <p>Action by Franz Buhl and another against Anna M. Thomas. From a judgment in favor of plaintiffs, defendant appeals.</p>

<p>Usury—Mortgage—Foreclosure—Defense.</p> <p>Plaintiff loaned $500 to her son, for which he was to pay 6 per cent, interest, and use the money as he pleased; and, if lost, the loss was to be his. He loaned the money to defendant, taking a note for $500, with interest, payable to plaintiff, and secured by mortgage; but defendant received only $402.50 on such note. Part payment was afterwards made, and a new note for the balance -given. Held, in an action to foreclose the mortgage, that a judgment for plaintiff was erroneous, since she was not the real party in interest, and, though ignorant of the loan being made at a usurious rate, the note was void.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Frank Jenkins and another against the John Good Cordage & Machine Company and others. From a judgment in defendants’ favor, plaintiffs appeal.</p> <p>The following is the opinion of the court below (SMITH, J.):</p> <p>“In January, 1897, the unsecured indebtedness of the defendant corporation-amounted to about §300,000. Much of this indebtedness was of long standing, and had been represented by notes of the defendant company which had been renewed from time to time. Some of the larger creditors were demanding payment of their claims. The defendant company had no cash with which to pay them, and the indebtedness of the company exceeded by about $270,000 all the assets of the corporation aside from the plant and patents. To meet this emergency, the directors of the corporation proposed and did execute and deliver to the Kings County Trust Company, as trustee, a mortgage for $300,-O'OO upon all this property, real and personal, to secure bonds of like amount, payable in 10 years, with semiannual interest. It was proposed in this way to fund the debt of the corporation by satisfying the claims of creditors with bonds of like amount as far as the creditors would consent. Failing to procure the consent of any creditor, the bonds were to be negotiated at par, if possible, and money raised to pay the nonconsenting creditors. The mortgage was executed upon the 7th day of January, 1897, delivered and filed upon the 8th. It was impossible, however, to procure the printing of the bonds until the latter part of February. The plaintiff corporation was a creditor of the defendant company for moneys loaned to the extent of about $106,000. For this it had some security. In order that the funding plan might be consummated before, the last of February, when the bonds could be procured, the officers of the defendant company gave to the plaintiff what has been called a certificate of indebtedness, which was a certificate recognizing the indebtedness to the plaintiff, and its right to the bonds when issued, and which assumed to take the place of the bonds in the consummation of. the plan until those bonds should be issued. Upon the receipt of this certificate the plaintiff delivered to those officers all the notes of the corporation held by it and certain collateral. Some criticism has been made that a certain paper given by the defendant company to the plaintiff purporting to assign to it certain rights in some personal property as collateral to some of these notes was not delivered up. But the surrender of the notes would of itself cancel all right to that collateral. The fact must be found that the receipt of the certificate of indebtedness by the plaintiff corporation was upon the consideration of a surrender by the plaintiff corporation of the notes held against the defendant corporation and all collateral thereto. Objection is first made to the maintenance of this action on the ground that the plaintiff has no interest in the mortgage in question because of the nondelivery of the bonds contemplated by the mortgage. A sufficient answer to this objection is that the equities of the plaintiff were, as against both the receiver and the judgment creditors, settled by the giving of the mortgage. Nothing remained to be done save the printing of the bonds. Those equities should be assured to the plaintiff in spite of the formalities contemplated in the delivery of the bonds. Another sufficient answer may be found in the act of the officers of the corporation in delivering the certificate and receiving the securities, ratified by the meeting of the .executive committee upon February 16th, in its failure to disclaim the assumed authority of those officers. On the other hand, it is claimed by the plaintiff that neither the receiver nor the judgment creditors are here in a position to defend this mortgage. I can conceive of no better right than has a judgment creditor with a lien subsequent in point of time to the asserted lien of the mortgage. " I am compelled to find that the receiver was duly appointed in the New Jersey courts, and under this right would be authorized to defend. But again, under his appointment in New York, he is at least custodian of the property within this state of the corporation, with full power to defend against any attack based upon the assumed lien, if that lien be illegal. The controversy then narrows to the question of the validity of this mortgage. It is not necessary to determine whether this corporation was insolvent within the meaning of the corporation laws prohibiting preferences in the case of insolvency. It was pressed for the payment of debts which it could not pay. The recourse to this funding scheme was the result of this embarrassment. Whatever may have been the estimated value of the property, upon execution sale the property would not have satisfied the claims. With this mortgage, the equity in the corporation has clearly no market value. It might be well found that the plan contemplated the complete funding of the debt as a condition of the validity of- the mortgage and as a consideration of the consent of the stockholders thereto. This is the inference which would naturally be drawn from the testimony of John G. Jenkins himself, and is practically expressed in the certificate of indebtedness upon which this action seems to be brought. If this be so, the mortgage cannot be used for another purpose. But assume the alternative upon which the plaintiff’s claim must here rest, that, notwithstanding the failure of the funding scheme, the mortgage was contemplated as a security to those who would come in and accept the bonds in satisfaction of their claims. Upon this assumption the corporation becomes the owner of these bonds. They are offered to the creditors who will consent to the ten-years’ extension of time, which is the ultimate object of the mortgage scheme. Those who will not consent are left without security, to procure perchance attachment liens upon a worthless equity. The scheme of the mortgage thus contains to those creditors who will not grant the extension a clear threat to make doubtful, if not worthless, their claims. It becomes an instrument of coercion, which, to my mind, is repugnant to fear dealing with creditors. Its operation must of necessity be a hindrance to them in the collection of their claims. As such it meets the condemnation both of the common law and of our statutes. This conclusion is, to my mind, inevitable, were the creditors strangers to the corporation. Where, however, as it is here, some of the principal creditors are themselves stockholders in this corporation and directors interested to secure a prolongation of its life, and working with the corporation for that end, the vice becomes the more apparent. The plaintiff corporation is composed of three stockholders, all of whom are stockholders in the defendant corporation, and two of them directors. The acknowledged object of the mortgage is to secure an extension of time from the creditors that the corporation may live. In this plaintiff’s stockholders have a co-ordinate interest. The significance of the threat thus becomes more apparent, and the position of the other creditors the more helpless. In. the case at bar the mischief was only averted by the supposition that the failure to deliver the bonds had rendered ineffectual the mortgage. In Arnistrong v. Byrne, 1 Edw. Ch. 79, a firm, being insolvent, made an assignment of which the vice chancellor writes as follows: ‘The assignment professes to provide for the creditors named in a schedule by directing the proceeds of the assigned property to be divided among them in proportion to the amount of their respective debts. If it stopped here, it would be unobjectionable. But it goes further. It declares, as a condition of their receiving a dividend, that the creditors shall release the balance of their debts; and also that any creditor not receiving his dividend, and giving a discharge within five days after a dividend is declared, shall be precluded from the benefit of the assignment, and the whole of the property is then to be divided among those creditors who accept the composition. This attempt to coerce creditors into terms which the debtor chooses to prescribe is against the policy of the law, and entirely vitiates the assignment. A debtor in failing circumstances may lawfully assign his property for the benefit of his creditors, and prefer one creditor or a class of creditors. But he shall not fix terms or conditions in order to benefit himself, and likewise say to his creditors, “You must subscribe to these provisions, or you shall not touch the property.” Such conditions are inadmissible. He does not benefit himself by merely creating a preference of payment amongst his creditors, because he remains liable to the others until all his debts are paid; but if he stipulates for an absolute discharge before a creditor shall have the benefit of the property, he thereby assumes to himself a power over the creditor for his own personal advantage, namely, of being discharged from his debt by a payment of a part only. And if he can be allowed to lock up his property by means of such an assignment, until the creditors comply with his terms, he can successfully delay, hinder, and defraud his creditors. It is thus brought within the statute made to prevent fraudulent transfers of debtors’ property. The principles upon which the decision in Hyslop v. Clarke, 14 Johns. 458, was made, are strongly applicable, and, in my judgment, decisive of the present case. It has been urged in argument that the clause of the assignment in question was only intended as one mode of creating a preference amongst the creditors by giving to those who might accept the composition (as it is called) the benefit of what others might decline, and therefore not unlawful. If that were the case, I certainly should not be disposed to interfere. But it is impossible to avoid seeing that the preference among the creditors was not the sole object. The debtor, as I have already shown, was stipulating for his own benefit, and by this contrivance endeavoring to coerce his creditors into a compliance with his terms. I must declare the assignment void for fraud upon the oface of it.’ The principle of the case cited controls, I think, the case at bar." In the one case the advantage sought to be attained was the release of the debt; in the other the extension of the time of payment. In either case the concession to the corporation is one which the creditor may voluntarily grant, but into which he must not be coerced. In Bank v. Sprague, 21N. J. Eq. 530, the mortgage was given to a trustee to secure 100 bonds of $1,000 each, payable to blank or to bearer, and given at a time when the mortgagors were pressed by their creditors for payment or security for their claims, and were unable to meet their pecuniary obligations. After the execution of the mortgage, the bonds were left in the hands of the mortgagors for distribution among their creditors, .or for such disposition as they might choose to make of them. In writing for the court, Van Syckel, J., says: ‘That a debtor in insolvent circumstances may prefer certain creditors' has been too long the received law of the state to be questioned now. But the proposition that an insolvent may execute a mortgage to a trustee payable in three years or twenty, at his pleasure, for an amount that will more than absorb his property, and take the bonds secured by it into his own possession, and with his property thus beyond the reach of legal process pass them to such of his creditors, as may feel constrained to accept them, has heretofore received no judicial sanction in this state. A scheme better adapted to hinder and delay creditors cannot well be conceived. This device operates as an obstruction to creditors, and its effect in this case, as it will be in all cases, was to coerce them into acceding to the debtors’ terms under the apprehension that otherwise the bonds would be negotiated to bona fide purchasers, or passed to other creditors whose fears could be more readily excited. The creditor, when offered these bonds, at once sees that -he would be subjected to an expensive litigation to sweep away this mortgage in the pursuit - of his legal remedy; and it must be conceded that, if this plan can be successfully carried out, the debtor will practically 'dictate terms to those to whom he is indebted, and it will be at his option whether they shall take a security maturing in three or thirty years.’ In Bearing v. Hardware Co., 33 App. Biy. 31, 53 N. X. Supp. 513, a foreign- corporation executed a conveyance to a trustee for the creditors of the company. The pertinent part of the decision appears in the opinion of Adams, J., speaking for a unanimous court, as follows: ‘The question, however, with which we are more immediately concerned is this, does this mortgage contravene any statute of this state? the contention of the defendants being that in several of its provisions it is repugnant to the policy of this state as declared in.what is known as the statute of frauds, and that, consequently, it is not valid as against creditors who have acquired any rights as to property within this state. This contention we are inclined to think is well founded; for the instrument in question, by whatever name it may be called, does apparently contravene the provisions of our statutory law which are designed to prevent a failing or dishonest debtor from hindering or delaying his creditors in the collection of their debts. Rev. St. pt. 2, c. 7, tit. 3, § 1. In the first place, the instrument, so far as it affects the creditors who are specifically mentioned therein, is coercive, in that it expressly directs that the provision for such creditors shall operate only in the event that they shall, after knowledge hereof, avail themselves of the security of this instrument, and accept and abide by the terms and conditions hereof; and all whose debts are due or to become due within ninety days shall assent to the extension of the same for the said period. This, it seems to us, is equivalent to saying to these creditors that, if they will extend their debtor’s term of credit to a time fixed by the debtor himself, they can share in whatever benefits are -to be derived from the instrument, but otherwise they must take whatever the debtor sees fit to allow them. The effect of such provision must necessarily be to hinder and delay these creditors in the collection of their debts. Hyslop v. Clarke, 14 Johns. 458; Grover v. Wakeman, 11 Wend. 187; Armstrong v. Byrne, 1 Edw. Ch. 79.’ Within the authority of the case cited, I -think the grounds of the objection sufficiently appear in the pleadings in the case at bar. This objection to the validity of the mortgage does not seem to have been answered in the very able brief of the plaintiff’s counsel. With this conclusion reached, it becomes unnecessary to consider the other questions raised as to the application of the New York or the New Jersey statutes, or as to the right of an insolvent corporation at common law to prefer its creditors. The defendants are entitled to judgment dismissing the plaintiff’s complaint, and to a 'decree holding the mortgage to be illegal, and not a lien upon this property. The securities delivered by the plaintiff to the officers of the defendant corporation, and now with the clerk, become the property of the plaintiff. The American Surety Company can claim no greater right than could the defendant corporation, which clearly has no equity as against these lienors. While holding this mortgage void because, of its effect in delaying creditors, I must find that the acts of the plaintiff, and especially of John G. Jenkins, the senior officer and representative of the plaintiff, were in all respects straightforward. There was no corrupt motive to gain any preference. The same security which they were willing to take they offered to the other creditors. Upon John G. Jenkins has fallen the burden of the embarrassment of the defendant corporation. In his effort to deal fairly with all creditors he has unfortunately taken a security which the law, from public policy, must condemn. He has suffered enough in these transactions, and is charged with no costs. The form of the decree may be settled at my chambers at Elmira upon the 14th day of September at 10 o’clock.”</p>

Petition of Albert W. Seaman, trustee of estate of Eliza Eagle, for a statement of the account of Gilmore Clarke and others as executors of David Clarke, deceased. From a decree of the surrogate allowing certain judgments against the estate, the executors appeal.

Suit by Terence S. Reilly, as trustee in bankruptcy, against Jacob Krause and Louis Friedenberg, impleaded, etc. From an order vacating an ex parte order requiring plaintiff to give security for costs, defendants appeal.

<p>Motion for reargument.</p>

<p>Attachment—Nonresident—Wrongful Lett—Motion to Vacate—Notice</p> <p>Where plaintiff caused, a consignment of goods to be made to a third party by a nonresident on representations that plaintiff’s relations with the nonresident were such that he could not deal directly with him, and then attached the goods when they came within the state, plaintiff could not be heard to complain of the insufficiency of a notice of a motion to vacate the levy.</p>

<p>1. Sheriffs and Constables—Attachment—Care of Property—Watchman _Charges</p> <p>Where a sheriff had attached property of the value of $650, the fact that the property was contained in a store which had three entrances, and in a stable in the rear and some distance from the store, to which there was one entrance, was no justification for the sheriff’s employment of six persons to watch the property for 18 days, at a cost of $1$0, no reason being suggested why the various entrances could not have been fastened so that one day watchman and one night watchman might not. have cared for the property.</p> <p>8. Same—Watchmen Employed by Plaintiff in Attachment.</p> <p>Where plaintiff in attachment employed and paid a night watchman to care for the property seized, an item in the sheriff’s account for moneys paid to such person as a watchman would not be allowed.</p> <p>8. Same—Nioht Watchmen.</p> <p>Where attached property was located in a store building having three entrances and in a stable having one entrance, and no reason was suggested why the various entrances could not have been fastened so that one watchman could care for the property, a charge by the sheriff for two night watchmen in caring for the property should not be allowed.</p>

<p>Street Railroads—Passenger—Negligence — Evidence — Verdict — New Trial.</p> <p>Plaintiff’s intestate fell or was thrown from an open street car while in rapid motion, and was killed. A witness, who was sitting at a fourth-story-window, over 100 feet away from the place of the accident, testified that the car came to a sudden jerk back, which threw deceased off on her head, and then went on; that after she fell the danger signal was rung, and the car then stopped suddenly. There was no other evidence of defendant’s negligence. The conductor, motorman, several passengers, and a policeman who was riding on a bicycle just behind the car, all testified that there was no sudden check or jerk of the car until the ringing of the danger signal after the accident. Held, that the verdict was not justified by the evidence, and a new trial must be granted.</p> <p>Rumsey and McLaughlin, JJ., dissent.</p>

Action by Leopold Michael against Charles Ellwanger. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Charles F. Bond against James M. Stewart and another. From a judgment for plaintiff on decision after trial, defendants appeal.</p>

Claim by Frank V. Strauss & Co. against Joseph F. Daly and others, as executors of the estate of Augustin Daly, deceased. From a judgment denying the claim, the claimants appeal.

<p>1. Contracts — Consolidation op Companies — Action por Breach op Contract—Direction op Verdict.</p> <p>Defendants contracted to purchase news of the Associated Press until January, 1899. In 1892 the Associated Press ceased business, and assigned its contracts to the United Press of New York, which subsequently agreed to pay its net monthly income to the United Press of Illinois, a corporation organized in 1887 for the dissemination of news. The business of the New York corporation, including the collection of its revenue and the payment of its expenses, was to be conducted the same as before. A guarantied dividend on its stock was to be paid by the Illinois corporation. Held, that the direction of a verdict for defendants in an action by the United Press for breach of defendants’ contract was erroneous, since the question whether the plaintiff was the United Press of New York or the United Press of Illinois was for the jury.</p> <p>2. Same—Agency—Maintenance op Action.</p> <p>The United Press of New York agreed to pay its net monthly income to the United Press of Illinois, the business of the New York corporation, including the collection of its revenue and the payment of its expense, to be conducted without interference from the Illinois concern, and as a consideration the latter guarantied the payment of a certain dividend on the stock of the former. Held, that such contract did not constitute the New York corporation the agent of the Illinois corporation in the conduct of the business of the former concern as far as third persons were concerned, and hence the New York corporation could maintain an action for breach of a contract assigned to it before the consolidation agreement.</p>

<p>Appeal from municipal court, borough of Manhattan, Third district.</p> <p>Action by George W. Mansfield against Ernest Strauss. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Malcolm Dickerson was convicted of rape, and appeals.</p>

<p>1. Libel—Evidence—Damages—Excessive Verdict—New Trial.</p> <p>Where a publication charged that plaintiff had lived with a man many years without being married to him, and the evidence of plaintiff’s marriage depended entirely on her own testimony, and she was shown to have made contradictory statements as to the date of the marriage, and, if the statement in her verified complaint on which she had obtained a separation was true, she had lived with her husband before her marriage, and there was a verdict for the plaintiff for $7,000, it was not an abuse of discretion for the court to grant a new trial unless plaintiff would stipulate to reduce the verdict to $3,500.</p> <p>2. Same—Question fob Jury.</p> <p>Where it appeared to the trial court that a verdict in libel was excessive, and a new trial was granted unless plaintiff should stipulate to reduce the verdict, such action was not improper, on the ground that it interfered with the right of the jury to determine the amount of damages.</p>

<p>Mechanics’ Liens—Discharge—Second for Same Work—Cancellation.</p> <p>Where a contractor filed a lien for labor and materials, which was discharged on the day it was filed, a second notice of lien, subsequently filed on the same day, for the identical labor and materials, for the same amount, against the same owners and their property, will be canceled, on application, as a paper improperly filed.</p>

Action by Augustus V. H. Stuyvesant against Mary E. Early. From an order enjoining the defendant from disturbing a sewer drain during the pendency of the action, defendant appeals.

Action by Henry Abegg and others against the People’s Trust Company of Brooklyn and others. Application by the company for an order to pay into court funds held by it to the credit of Homer R. Scoville, as substituted assignee of William McFarlane & Co. From an order granting the application, the assignee appeals.

<p>Commission to Examine Witness—Application—Absence from State.</p> <p>Under Code Civ. Proe. § 887, providing that, where it appears by affidavit that the testimony of a witness not within the state is material to the applicant, a commission may be issued to take his deposition, an application showing that the witness is a nonresident, but not showing that he is not within the state, should be denied.</p>

<p>Attachment-Motion to Vacate—Determination.</p> <p>On a motion to vacate an attachment, the merits of the action will not usually be considered, and, unless it is certain that the complaint is so defective that plaintiff cannot recover, the motion will be denied, and the writ continued until the case is ended.</p>

Appeals from judgment on report of referee. Suit by Janet Rudd and another, executrices and trustees of George Rudd, deceased, against Janet Rudd and others. From a decree for plaintiff, Annie E. Cornell, individually and as administratrix of the estate of Genevieve M. Rudd, deceased, appeals.

Action by Charles V. T. Foley and another against August C. Scharmann and another to recover costs in an action. From an interlocutory judgment overruling a demurrer to a counterclaim in defendants’ answer (61 N. Y. Supp. 969) the plaintiffs appeal, and also from a final judgment in favor of the defendants.

Action by Hugh G. Kelly against the William J. Merritt Company and another to enforce a mechanic’s lien. From an order of the general term of the city court (62 N. Y. Supp. 1139) alarming a judgment in favor of plaintiff, defendants appeal.

' Action by Alice B. Eagan against Peter Eagan. From a judgment dismissing the complaint on the merits, the plaintiff appeals. James Eagan, a brother of the defendant and the husband of the plaintiff im this action, became a member of the Mt. Morris Council of the Catholic Benevolent Legion on the 19th day of February, 1885.

<p>Appeal from, trial term, New York county.</p> <p>Action by W. P. Fuller & Co. against Wenzel Schrenk and others-From a judgment for plaintiff, entered on a directed verdict, defendants appeal.</p>

<p>"Municipal Corporations—New York Department of Buildings—Clerks— Eemoval. l</p> <p>Where a regular clerk in the department of buildings of New York City absented himself without leave from October until the following- June, and failed to give notice of a change of his address, as required by rule 22, and charges were made against him, and he was allowed to- make an explanation, as required by Greater New York Charter, § 1543, declaring that no regular clerk shall be removed without an opportunity for an explanation, his explanation stating that his absence was owing to his wife’s illness, it was not improper for the commissioner to refuse to hear evidence as to the truth of facts contained in the explanation.</p>

<p>1. Judgment—Assignment—Reversal—New Trial—Substitution of Plaintiff—Statutes.</p> <p>Code Civ. Proc. § 757, provides that in case of the death of a plaintiff, if the cause of action survive, the court must, on motion, allow the action to be continued by his representatives or successors in interest. Section 756 declares that in case of a transfer of interest the action may be con-tinned by the original party, uqless the court directed the person to whom the interest is transferred to be substituted. Eeld, that where, after the assignment of a judgment in favor of plaintiff, a new trial was ordered, and the plaintiff died, an application by the assignee to be substituted as plaintiff should have been made under section 756, instead of section 757.</p> <p>2. Same—Laches.</p> <p>Where there was a judgment in favor of plaintiff, and on appeal a new trial was, ordered, and the judgment had been assigned, but no notice thereof was given defendants, and thereafter plaintiff died, but no personal representative was appointed, or anything done for over 10 years indicating an intention to continue the action, a motion by the assignees to be substituted as plaintiff—the only excuse for the delay being that the moving parties believed the defendants insolvent, but had learned of their responsibility—was properly denied because of laches.</p>

<p>1 Mechanics’ Liens—Subcontractor—Jury Trial.</p> <p>Where a court found that defendant, in an action by a material man to ■foreclose a lien, owed the contractor more than the amount of the material man’s claim, and rendered judgment ordering the referee to pay the contractor the amount due him out of the proceeds of the sale of the property, such judgment should be reversed in absence of any established lien by the contractor; since the owner of the property was entitled to a trial by jury in any action in which it was sought to establish the contractor’s claim against him.</p> <p>2. Same—Pleating—Co-Dependant—Relies—Demand.</p> <p>Under Code Civ. Proc. § 521, providing that, where one defendant seeks affirmative relief against another, he must demand it in his answer, a contractor, made defendant in a suit by a material man to foreclose a lien, whose answer merely asked the court to establish the priorities between the material man and other possible lienors, and prayed such further judgment as might be necessary to protect his rights in the premises, was not entitled to judgment against the owner of the property.</p> <p>3. Same—Service.</p> <p>Under Code Civ. Proc. § 521, declaring that, where one defendant seeks affirmative relief against another, he must serve a copy of his answer demanding it on the attorney of such other defendant at least 20 days before the trial, a contractor, made defendant in a suit by a material man to foreclose a lien, whose answer was not served on.the attorney of the owner of the property, could not recover against him.</p> <p>4. Same—Waiver.</p> <p>Where the property owner in a suit by a material man to foreclose a lien sat by and allowed evidence to be introduced as to the amount owed by him to the contractor under whom the plaintiff claimed, he did not thereby waive his right to demand that the contractor’s answer to such material man’s suit be served on him 20 days before trial as a prerequisite to a recovery by such contractor against him in such suit.</p>

<p>1. Pleading—Counterclaim—Action on Contract.</p> <p>Under Code Civ. Proc. § 501, providing that a counterclaim may be a cause of action arising out of the contract set forth in the complaint as the foundation of the plaintiff’s claim, a counterclaim, growing out of the breach of a contract made between the parties in 1891, and set up in a bill for injunction which based no claim for relief on such contract, but was founded on a contract made in 1894, which superseded the former one, could not be enforced in such action.</p> <p>2. Same.</p> <p>Where a bill for injunction was brought to protect rights and property acquired under a contract made in 1894, a claim founded on a contract made in 1891,- for which the later one was substituted, had no relation to the subject-matter of the action, so as to authorize it to be filed as a counterclaim in such action, under Code Civ. Proc. § 501, declaring that a counterclaim may be a cause of action “connected with the subject of the action” brought.</p> <p>3. Same—Injunction.</p> <p>A suit for injunction, brought to protect certain rights and property acquired under, a contract, was not an action on contract, within Code Civ. Proc. §? 501, authorizing the filing of a cause of action on contract as a counterclaim “in an action on contract.”</p> <p>4. Same.</p> <p>Where a suit was brought for an injunction to restrain interference with</p> <p>. certain rights, a claim for damages against the plaintiff by the defendant, arising out of the alleged breach of a contract, would not tend to diminish or defeat the plaintiff’s recovery; hence was not a counterclaim, under Code Civ. Proc. § 501, requiring that a counterclaim should tend to diminish or defeat the plaintiff’s recovery.</p> <p>Same—Waiver—Reply.</p> <p>In an action to enjoin interference with certain rights, the plaintiffs did not waive their right to object on the trial that a certain cause of action set up in the answer as a counterclaim could not be enforced as such, by replying to such answer, where the cause of action pleaded was not a counterclaim.</p> <p>■6. Same—Demurrer.</p> <p>In an action to enjoin interference with certain rights, the plaintiffs were not compelled to demur in order to raise the question whether a ' certain cause of action set up in the answer amounted to a counterclaim, but could move to dismiss such claim.</p> <p>7. Same—New Trial.</p> <p>Where it was determined on appeal that the defendant in an injunction suit could not recover on a counterclaim for which judgment had been rendered in his favor, it was not necessary to order a new trial, but the judgment could be modified by striking out the affirmative recovery.</p>

<p>Appeal from justice court.</p> <p>Action by Agnes Cahill against Catherine Delaney. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from justice court.</p> <p>Action by Catherine A. Lasher against Albert A. .Curry. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>1. Pleading—Separating. Causes—Motion.</p> <p>Where, in an action on 17 notes and for money loaned, against the administratrix of the maker, the complaint alleged 17 separate causes of action, one on each note, alleging the maker’s acknowledgment of the debts and renewed, promise to pay them, a motion that the last cause of action be divided and stated in a separate cause for each note will not be granted.</p> <p>3. Same—-1 it relev ant and Redundant Matter—Striking Out—Motion.</p> <p>The allegation, in each cause of action, of the renewed acknowledgments by the maker that he owed the notes, and promise to pay them, will be stricken out as irrelevant and redundant on motion, under Code Civ. Proe. §’ 545, providing that such matter may be stricken out on motion of the party aggrieved thereby.</p>

<p>New Trial—Motion—Making “Case”—Appeal—Costs.</p> <p>Where plaintiff prepared a “case" for a motion for a new trial, which was granted without costs to either party, and the order on appeal was affirmed with costs, plaintiff was not entitled to costs for making and serving the “case,” the order of affirmance including only the costs on appeal.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Egbert D. Fitzgerald, an infant, by Mary Josephine Higgins, as guardian ad litem, against John O. Rodgers. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Eminent Domain—Bridges—Commissioners of Estimate and Apportionment—Report—Confirmation.</p> <p>Where commissioners of estimate and. apportionment appointed in a proceeding to acquire title to land for construction of an 'approach to a bridge were men of experience in real-estate transactions, and familiar with property in the vicinity of the lands condemned, and there was no showing of fraud or abuse of discretion or error on their part, their report will be confirmed.</p> <p>8. Same—Personal View—Effect.</p> <p>It was proper for the commissioners themselves, in determining the damages, to act on information derived from a personal view of the premises condemned, since it is their province to acquire the necessary knowledge to enable them to Intelligently make a just and equitable apportionment of damages.</p> <p>8. Same—Abstract of Estimate—Objections—Hearing.</p> <p>Where the commissioners of estimate and apportionment filed their abstract of estimate and assessment as required by law, and gave notice thereof, and of the time and place of hearing objections thereto, it was not error for them at such hearing to refuse to permit landowners to introduce further testimony as to the value of their property; the hearing being merely on objections, and not a retrial on the merits.</p>

Action by Mark T. Goodwin against the Casino Land Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>Incompetent—Discharge op Committee—Examination op Petitioner.</p> <p>- Petitioner, who had been found incompetent, asked that the committee of his person and property be discharged. His wife and child applied for an order that he submit to examination by certain named physicians, to allow them to testify as to his present competency. In the' proceedings before the referee, the petitioner was not called and examined. Held that, before the petition should be granted, either the petitioner should be called before the referee and examined in the presence of such physicians as those opposing the application might desire, or else an examination by some independent physicians, satisfactory to counsel,' will be allowed.</p> <p>Patterson and McLaughlin, JJ., dissenting.</p>

<p>1. Insolvent Corporations—Action against Directors.</p> <p>An action will lie, under Stock Corporation Law, § 24, rendering directors of a corporation, other than a moneyed corporation, liable to the creditors of the corporation for the creation of a debt in excess of the paid-up capital stock, at the suit of a creditor on behalf of himself and other creditors who may join therein.</p> <p>2. Sams—Judgment against Corporation.</p> <p>Where a creditor has been enjoined from suing a debtor corporation, it is no objection to an action by him, in behalf of himself and other creditors who may join, against the directors thereof, to enforce their liability, that he had not first obtained a judgment against the corporation.</p>

Action for divorce by Harry Masey against Lulu May Masey. From an order denying a motion for alimony and counsel fees, plaintiff appeals.

<p>Appeal from special term.</p> <p>Action by Denis A. Spellissy against the Cook & Bernheimer Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Corporations—Sale op Stock—Fraud.</p> <p>Where a committee of the stockholders of a corporation induces a third person to make an offer to purchase its stock at a certain price if 65 per cent, of its stock can he thus obtained, and a stockholder and director, who has’not constituted such committee as his agent, and who knows nothing about their negotiations, accepts such offer in connection with other stockholders, the sale will not be set aside at the suit of the purchaser for fraudulent representations made by the committee.</p>

Appéal from special term, New York county. Attachment by Richard Delafield and others against the J. K. Armsby Company. From an order vacating the attachment on the papers on which it was granted, plaintiffs appeal.

<p>Change of Yende—Convenience of Witnesses —Sufficiency of Affidavit.</p> <p>Where a defendant, who resides in a certain county, moves that the action be transferred to such county for convenience of witnesses, his affidavit, naming several persons residing in such county, who are material witnesses for him, and stating that he knows from conversations with such witnesses that they have personal knowledge of certain specified facts, and bélieves that they will so testify, is sufficient to authorize the change.</p> <p>Van Brunt, P. X, and Patterson, X, dissenting.</p>

<p>Contracts—Rescission—Action—Lis Pendens.</p> <p>Plaintiff brought an action to rescind an agreement and transfer of property made by decedent, of whom she was the sole heir, pending another action brought by her to determine the validity of the probate of decedent’s alleged last will, under which she obtained no interest in the property, alleging duress and undue influence, held, that the action could not be maintained until she succeeded in the suit to set aside the will.</p>

<p>1. New Trial—Exceptions.</p> <p>Where a cause has been tried, before the court without a jury, a motion for a new trial, made on exceptions, will be refused.</p> <p>3. Reargument—Motion—Review.</p> <p>An order denying a motion for a reargument of a cause tried before a court without a jury will not be reviewed on appeal, since the granting thereof is a matter of discretion.</p> <p>3. Foreign Corporation-—Bond op Indemnity—Action—Appeal.</p> <p>In an action by a foreign corporation to recover on a bond of indemnity, an objection to the recovery that such corporation cannot maintain an action founded on an act which the laws forbid, without express authority, of law, as provided by Code Civ. Proc. § 1779, in that it has not filed a certified copy of its charter, as required by Laws 1892, c. 690, § 29, will not be heard for the first time on appeal.</p> <p>4. Same—Acts Ultra Vires.</p> <p>Where, in an- action to recover on a bond of indemnity given by a foreign corporation, the defense is made that the contract was ultra vires, it will not be assumed on appeal that the act is forbidden by the laws where organized, in the absence of evidence as to its powers.</p>

Action by Samuel Schoenblum, an infant, by Joseph Schoenblumr guardian, against the city of New York. From the judgment dismissing the complaint, plaintiff appeals.

Action by George Burnham and others against John F. Pidcock on a judgment rendered by the courts of New Jersey. From a judgment in favor of defendant entered on decision of the court at trial term without a jury (6(f N. Y. Supp. 806), plaintiffs appeal.

Action by Frank M. Feet against William F. Kimball and others. From an order permitting plaintiff to discontinue only upon payment of costs and an extra allowance, he appeals.

Action by Henry W. Stikeman and others against Edward J. Flack, as treasurer. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

<p>1. Attorney and Client—Employment—Written Contract—Terms—Parol Evidence—Admissibility.</p> <p>Defendant employed plaintiff as his attorney to recover damages for certain property taken by the city of New York in condemnation proceedings, and executed a written contract assigning and agreeing to pay plaintiff 50 per cent, of whatever sum should be allowed, recovered, or confirmed on account of the condemnation. Defendant admitted that he signed the agreement, but contended that it was executed to be shown by plaintiff to prospective clients, and that the real agreement was for a commission of 33% per cent. Held, that the agreement must be determined from the writing itself, and that parol evidence was not admissible to prove defendant’s contention.</p> <p>2. Same—Construction of Contract. 0</p> <p>Defendant employed plaintiff as his attorney to recover damages for certain property which had been taken by condemnation proceedings, and executed a written contract assigning and agreeing to pay plaintiff 50 per cent, of whatever sum should be allowed, recovered, or confirmed on account of defendant’s loss. There was a mortgage of $6,000 on the property, and some unpaid taxes against it; and plaintiff, after extensive litigation, recovered an award of $22,500. Held, that plaintiff was entitled to one-half of the award, without any reduction on account of the mortgage and tax liens, since to allow such reduction would introduce new terms into the agreement.</p> <p>S. Same—Award op Commissioners—Attorneys’ Liens—Equitable Assignment.</p> <p>Where defendant agreed in writing to pay plaintiff 50 per cent, of whatever might he recovered for the taking of defendant’s property under condemnation proceedings, the question, whether an attorney can have a lien for his services on an award in condemnation proceedings was immaterial, since the agreement amounted to an equitable assignment of one-half of the award, which was sufficient in itself to sustain a lien.</p> <p>McLaughlin and Patterson, JJ., 'dissenting.</p>

<p>Appeal from special term.</p> <p>Action by Simon Herman against the New York Elevated Railroad Company and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Charles M. Oohnfeld against Leon Tanenbaum. From a judgment dismissing the complaint (67 N. Y. Siipp. 335) plaintiff appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by James McGuire against Eliza G. Board. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>1. Libet, and Slander—Evidence.</p> <p>In libel for publishing a picture alleged to be plaintiff as that of a woman married to C., evidence of people’s recognition of plaintiff’s resemblance to the published picture was properly excluded, since it was merely the expression of an opinion on the question, which was for the jury.</p> <p>2. Same—Hearsay.</p> <p>In a libel for publishing a picture alleged to be the plaintiff’s as that of a woman married to C„ evidence as to what people said to plaintiff after the publication of the picture was properly excluded as hearsay evidence on a question which the jury themselves must determine from the appearance of plaintiff and the picture published.</p> <p>3. Same—Photograph Inadmissible.</p> <p>In libel for publishing a picture alleged to be plaintiff’s as that of a woman married to C., plaintiff’s photograph was properly excluded as evidence, where all the published pictures of plaintiff had been admitted, and plaintiff herself appeared as a witness.</p> <p>4. Same—Punitive Damages—Immaterial Questions.</p> <p>Where the jury had found for the defendant, the plaintiff was not entitled to have the charge of the court as to punitive damages reviewed, as the question of damages was immaterial.</p> <p>Van Brunt, P. J., and Patterson, J., dissent.</p>

Action by Frederick S. Pearson against Edward B. Cuthbert and others to set aside a fraudulent conveyance. From a judgment in favor of plaintiff, defendants appeal.

' Appeal from trial term, Kings county. Action by Andrew Ericson against the Edison Electric Illuminating Company of Brooklyn for malicious prosecution. From a judgment in favor of the plaintiff, and from an order denying a motion for a new trial (64 R. Y. Supp. 498), the defendant appeals.

Proceeding by William B. Pritchard, as executor of the estate of Marie V. Hunt, deceased, against Barbara I. Kirsch and others, for the construction of a will. From an adverse decree the Society of St. Vincent de Paul, a beneficiary under the will, appeals.

Action by Joseph Hamerschlag and others against Oscar Duryea to recover earnest money and expenses paid on a contract for the conveyance of real estate, in which defendant, by counterclaim, alleged performance, and demanded specific performance. From a judgment in favor of defendant on the counterclaim (66 N. Y. Supp. 87), plaintiffs appeal.

Action by Henry Blum and others against August M. Bruggemann, impleaded with Samuel Shapiro ánd others. From an order striking out answer of defendant August M. Bruggemann, he appeals.

Action by the people against John S. Biesecker to recover a penalty for selling a preservative to be used in the manufacture of butter. From an order sustaining a demurrer to the complaint (68 N. Y. Supp. 134), plaintiff appeals.

Two actions by Alexander M. Powell against the F. C. Linde Company. From a judgment in favor of plaintiff, and from an order denying a new trial (64 N. Y. Supp. 153), defendant appeals.

Action by Antonio Maimone against the Dry-Dock, East Broadway & Battery Bailroad Company. Prom a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Certiorari by the people, on relation of William A. Taylor, against Bernard J. York and others, police commissioners of the city of New York, to review the dismissal of relator from the police force.

<p>Appeal from judgment on report of referee.</p> <p>Action by Charles S. Allen against D. Maitland Armstrong. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Elias C. Benedict and others against the Guardian Trust Company. From a judgment overruling a demurrer to the complaint, the defendant appeals.

<p>'Partnership—Agreement between Partners — Consideration — Sale op Firm Property—Patents—Joint Ownership.</p> <p>Defendant was the inventor of a gas generator. He contracted with O. to sell the patents to him, to he paid for in installments, with the stipulation that on default in any installment the ownership of the patents should revest in the defendant. After making two payments, C. refused to pay more. Defendant then formed a partnership with plaintiff and others for the manufacture of generators. Defendant, with the consent of the other partners, then notified C. that new patents had Been granted, remedying the defects which impaired the former ones, and that he might continue his payments under the old agreement. The partners consented to this, with the understanding that whatever C. paid was to he the property of the firm. Held that, since the patents were the property of the firm, the consent of the other partners to relinquish their right thereunder was a sufficient consideration for the defendant’s promise that the money received should go to the firm.</p>

<p>Appeal from special term.</p> <p>Action by Frederick W. Janssen against Benjamin M. Whitlock. From an order discontinuing the action on plaintiff’s motion, defendant appeals.</p>

<p>Pleadings—Complaint—Undertaking on Appeal—Judgment for Costs.</p> <p>In an action on a bond given on appeal to the court of appeals from an order in a special proceeding, the complaint, after alleging the prior proceedings, and affirmance of the order appealed from, alleged that the sum of 8132.37 was duly awarded as costs and disbursements on said appeal on or about the 14th day of December, 1899, in favor of the plaintiff and against the appellant, and that no part of said sum had been paid. Held, that the allegation that the costs were duly awarded was sufficient to admit evidence of all the steps necessary to be taken after the order of affirmance to procure a judgment for the costs; hence a demurrer to the complaint should be overruled.</p>

<p>Appeal from special term, New York county.</p> <p>Action by William F. Mittendorf against the New York & Harlem Railroad Company and others. From a judgment sustaining a demurrer to the answer, defendants appeal.</p>

Suit by Jacob Rothschild and others, as executors, etc., of Simon Goldenberg, against Julius Goldman and another, for the construction of a will. From an order amending the. pleadings by striking out the names of certain defendants, plaintiffs appeal.

<p>Appeal from trial term, New York county.</p> <p>Action by the American Exchange National Bank against the Yule Machine Company. From an order granting a motion to place the cause upon the preferred calendar, defendant appeals.</p>

<p>Street Railroads—Collision—Ambulance—Right oe Wat.</p> <p>A city ordinance provided that an “ambulance of the department of health” should have the right of way in the streets. In an action by plaintiff for injuries sustained in a collision between an ambulance and a street car of defendant in which plaintiff was a passenger, the court charged that the ambulance, which was under the jurisdiction of’ the department of health, but did not belong to it, had the right of way. Held error, as such an ambulance was not within the ordinance.</p> <p>A city ordinance provided that an ambulance of the department of health should have the right of way in the streets. Plaintiff sustained injuries in a collision between an ambulance and a street car of defendant in which she was a passenger. The ambulance was under the jurisdiction of the department of health, but did not belong to it.</p>

Action by Leonard O. Ketchum against Milo M. Belding, Jr. From a judgment of the appellate term of the supreme court (66 N. Y. Supp. 307) reversing a judgment of the general term of the city court (64 N. Y. Supp. 550) of the city of ¡New York affirming a judgment for plaintiff, and also reversing an order of the general term affirming an order denying a motion by defendant for a new trial, and granting a new trial, plaintiff appeals.

Mandamus by the people, on relation of Bernard Rolf, against Bird S. Coler, comptroller of the city of New York. From an order granting peremptory writ of mandamus, and from an order granting an extra allowance of costs to relator (68 N. Y. Supp. 446), respondent appeals.

<p>Action by Samuel Adams and another against the Metropolitan Street-Railway Company. From a judgment for defendant, plaintiffs appeal.</p>

<p>Action by Thomas H. Appleby against John F. Dorthy.</p>

<p>Action by Sarah M. Bruce as administratrix, etc., against Willet I. .Van Demark as administrator, etc., and others.</p>

<p>Action by Henry E. Bowns against Samuel Stewart. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Action by Daniel Corbin against Edward Dwyer and others.</p>

<p>In the matter of the petition of John C. Davies, attorney general of the state of New York, for an order directing Charles W. Morse, appellant, and others, to appear before a referee for examination pursuant to chapter 690 of the Laws of 1899.</p>

<p>Action by Margaret Donahue against the New York, Ontario & Western Railway Company.</p>

<p>Action by Belle F. Galvin against the Syracuse Rapid-Transit Railway Company.</p>

<p>Action by John Gallagher against John P. Keating, commissioner of highways in the city of New York, and others.</p>

<p>Action by Catharine Fuller, as administratrix, etc., against the Central New York Telephone & Telegraph Company, impleaded, etc.</p>

<p>In the matter of the application of Cornelius L. Haines to enforce a lien against the canal boat Robert W. Parsons (Clara Perry, owner).</p>

<p>Action by the Guaranty Trust Company of New York, as guardian, etc., of Edward William Cameron Arnold, against Edward William Cameron Arnold.</p>

<p>Action in the matter of the probate of the last will and testament of Elam A. Hatch, deceased.</p>

<p>Action by Louis Hubenor and another against Charles Frick. From a judgment in favor of defendant, plaintiffs appeal.</p>

<p>Action by the Home Bank against John A. Garver as assignee.</p>

<p>Action by Matthew C. ICervan against J. Allen Townsend.</p>

<p>Action by John Martin against William Martin.</p>

<p>Action by Benjamin Marshall and another, as executors, etc., against the Commercial Travelers Mutual Accident Association of America.</p>

<p>Action by Conrad Muller against Charles G. Peterson.</p>

<p>Action by Charles Murr against the Western Assurance Company and others.</p>

<p>Action by William E. Mowbray against Rebecca De Forest Lyon, individually, etc., and others.</p>

<p>Action by John T. Murray, trustee, etc., against Lena Williamson.</p>

<p>Action by Thomas E. Park against the New York Central & Hudson River Railroad Company.</p>

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

<p>Action by the Phillipines Company against Amos S. Kimball and others.</p>

<p>Action by August Reiss against the town of Pelham.</p>

<p>Action by De Witt Roosa, as trustee, etc., against Walter C. Harrington and others, impleaded with Louisa Cornell, W. O. Strong, and Rae L. Strong.</p>

<p>Action by Teresa Rice against Marvin A. Culver.</p>

<p>Action by Delia M. Tait, as administratrix, etc., against the Buffalo-Railway Company.</p>

<p>Action by Charles Weber against the town of Pelham.</p>

<p>In the matter of the transfer tax upon the estate of William H. Vanderbilt, deceased.</p>

<p>In the matter of the application of Jessie L. Ward and Anna L. Judson for a writ of certiorari.</p>