Volume 69 — New York Appellate Division Reports

Appeal by the plaintiff, James E. March, from an order of the 'Supreme Court, made at the New York Special Term and entered in the office of the clerk of the comity of New York on the 27th day of August, 1901, denying so much of the plaintiff’s motion for •an injunction pendente lite as related to the injury and destruction ■of his easements in the streets; also from an order entered in said ■clerk’s office on the 24th day of September, 1901, denying so much-of plaintiff’s…

Appeal by the petitioner, Joseph Ullman, executor, etc., of Henry P. Sondheim, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the lltli day of August, 1900, denying his application for the resettlement of an order entered in said clerk’s office on the MSth day of June, 1900, directing Robert Mazet to fix the fail-market value at the time of the transfer of the property which was of the above-named decedent,…

Appeal by the defendants, George H. Morrill 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 New York on the 25tli ■day of May, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of May, 1901; ■denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, fhe New Amsterdam Gas Company,■ Trom a judgment of tlie Supreme Court in favor of the plaintiffs, -entered in the office of the clerk of the county of New York on the 6th day of July, 1901, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, John Bremer, from a judgment of the-Supreme Court in favor of the plaintiff, entered in the office of the» clerk of the county of Hew York on the 29th day of June, 1901,, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Ludwig Anderson, an infant, by Andrew Anderson, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 17th day of June, 1901, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, The Star 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 3d day of December, 1901, striking out certain allegations in the answer as irrelevant, redundant and scandalous.

<p>Appeal by the plaintiff, Max Silverman,, an infant, by -Morris Ain, his guardian ad litem, from 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 14th day of August, 1901, granting the defendant’s motion for a new trial made upon the minutes and setting aside the verdict of a jury in favor of the plaintiff for $2,700 rendered after a trial at the New York Trial Term.</p>

<p>Appeal by the plaintiff, Henry Lippmann, from a judgment of the Supreme .Court in favor of the defendants, Lydia Low and-Morris Mandelstein, entered in the office of the clerk of the county of Hew York on the 24th day of December, 1900, upon the decision of the court, rendered after a trial at the Hew York Special Term,, dismissing the complaint as to such defendants.</p>

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office, of the clerk of the county of New York, on the 25th day of June, 1901, iipon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 8th day of October, 1901, denying the defendant’s motion for a new trial made upon the. minutes.

<p>Appeal by the defendants, Henry W. Seiter and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of Hay, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term.</p>

Appeal by George Crocker from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 18th day of October, 1901, confirming the report of a referee and dismissing the appellant’s claim, against the assignee for the benefit of creditors of Price, McCormick & Co. The proceeding is one under section 26 of the General Assignment Act (Laws of 1877, chap. 466, as amd. by Laws of 1878, chap. 318),…

Appeal by the defendants, J. Frederick Sweasy 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 New York on the 1st day of August, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, declaring a certain paper purporting to be a deed to be in fact a mortgage^ restraining dispossession proceedings by the defendant J. Frederick Sweasy, and ordering…

Appeal by the plaintiff, Rosa Feierstein, from a judgment of the Supreme Court in favor of the defendant, Supreme Lodge, Knights of Honor, entered in the office of the clerk of the county of New York on the 11th day of May, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of November, 1900, denying the plaintiffs motion for a new trial made upon the minutes.

Appeal by the defendants, Edwin W. Baxter and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of November, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to the complaint.

Appeal by the plaintiff, Henry B. Auchinclóss, 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 3d day of March, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Married woman—delivery by her, of property, to one not her husband—proof of her title and of a separate estate are not necessary in an action, for its conversion — admissibility of letters alleged to be written by her, not relevant to the cause of action.</p> <p>A married woman who brings an action to recover damages for the conversion of certain personal property delivered by her to the defendant, who was not her husband, is not obliged to prove, as part of her case, the source of her title to ■ the property, or that she had a separate estate.</p> <p>The fact that the plaintiff upon her cross-examination denied that she had written certain letters addressed to the defendant, does not entitle the defendant,, after an expert, witness has testified that the letters were in the plaintiff’s handwriting, to introduce such letters in evidence, where it appears that the letters contain no reference to the transaction upon which the cause of action is based, and have no relevancy thereto, except to prejudice the jury against the plaintiff, and no evidence is given as to when they were written,. .</p>

<p> Claim against the city of New York—when the contractors are entitled to interest from the making of a refereds report in their favor and not from the date of presentation of the claim. </p> <p>Where á contract made by the commissioner of buildings of the borough of Manhattan provides that the contractors shall receive “ the following prices for the following classes of work to be done and material 50 furnished as aforesaid, to wit,” but does not specify the quantity of work to be performed or- of material to be furnished, and the contractors, after performing the contract, present 'a claim to the comptroller -of the city of New York, under section 261 of chapter 378 of the Laws of 1897, for $106,080,48, and- upon the rejection of such a claim bring an action thereon which is tried before a referee, who reports in favor - of the contractors for $79,229.98, the latter are not entitled to interest upon the recovery from the time of the presentation of the claim to the comptroller, but, under-section 1235 of the Code of Civil Procedure, they are entitled to interest - from the time the report is made to the date of the entry of the judgment.</p>

<p>Appeal by the plaintiff, Edmund Steinle, 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 22d day of November, 1900, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>Action for breach of contract to supply cohe—bill of particulars in respect to its particulars, the persons who made it and, the date when made, granted — as to the loss of profits, denied.</p> <p>Where the complaint, in an action brought to recover damages resulting from the breach of a contract, alleges that on and prior to the month of April, 1899, in the city and State of Mew York, the plaintiff entered into a contract with the defendant whereby the plaintiff agreed to purchase from the defendant, and the defendant agreed to sell to the plaintiff at certain prices, all the coke that would be required to operate the plaintiff’s furnaces at Iron Gate up to December 31, 1899, being not less than ninety tons of coke per day, the defendant, a corporation, especially where it submits an affidavit alleging that none of its executive officers has any knowledge of such a contract and that it has no record of the contract having been made, is entitled to a bill of particulars stating the particulars of the contract, the names of the officers who made it, whether or ■ not it was in writing and the exact day when it was made. The defendant is also entitled to a statement of the demands made by the plaintiff upon the defendant to furnish coke under the alleged contract.</p> <p>Where- the complaint indicates that the plaintiff'claims to be entitled to recover the difference between the cost price and the selling price of the iron that it would have manufactured but for the failure of the defendant to deliver the coke, the plaintiff should not be required to furnish the particulars' of the profits which it claims to have lost and the manner in which such alleged profits were computed.</p>

Appeal by the plaintiffs, Engelbert Hardt and others, from ah order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of December, 1901, granting the application of Thomas L. O’Donnell, trustee in bankruptcy of the defendant, and vacating an attachment theretofore issued in the action.

<p> Action for damages for negligence against d corporation—a judgment recovered against it is not enforcible against one who at the time of the accident had contracted to buy all its stock, bonds and property. </p> <p>The owners of a canal boat sunk by a tugboat brought an action against one Coykendall in which they alleged that they had theretofore brought an action to recover the damages sustained by them, in which it was charged that the Beverwyck Towing Company, the defendant therein, was a corporation and was tbe owner and in control of the tugboat, and that it so carelessly and unskillfully managed the same while having in tow the canal boat belonging to the plaintiffs that it caused the canal boat to sink; that the Beverwyck Towing Company interposed an answer admitting its incorporation; that the canal boat belonged to the plaintiffs, and that it was the owner of and in the possession of the tugboat, but denied that it had been negligent; that the action resulted in a judgment in favor of the plaintiffs, on which execution had been returned unsatisfied.</p> <p>The complaint further alleged that the defendant Coykendall prior to the sinking Of the canal boat had purchased all of the stock, bonds and property of the corporation; that the contract of sale provided that he should pay a portion of the purchase price in cash and the balance in annual installments, and that the stock and bonds should remain in possession of a trust company until payment in full had been made; that Coykendall ultimately paid such purchase price in full, although at the time the canal boat was sunk it had not been entirely paid; that Coykendall was then in possession of all the property belonging to the corporation, including the tugboat in question, and was operating the same for his own benefit under the corporate name; that after the defendant purchased such bonds, stock and property the corporate organization of the corporation was not maintained.</p> <p>The relief demanded was that Coykendall be required to pay the judgment obtained against the corporation.</p> <p>Held, that the complaint was demurrable;</p> <p>That Coykendall’s relation to the corporation did not make him personally liable for judgments rendered against the corporation;</p> <p>That if it were true that Coykendall at the time of the sinking of the canal boat was the owner and in possession of the tugboat and was operating the same for his sole benefit, he was liable for the damages sustained by the plaintiffs on the ground of negligence, but that it could not be held liable upon that ground unless appropriate allegations to that effect were inserted in the complaint;</p> <p>That the adjudication made in the action against the corporation that the tugboat was negligently managed was not binding upon Coykendall, and that he was entitled to litigate that question.</p> <p>O'Bbien and Laughlin, JJ., dissented.</p>

Appeal by the defendant, the Metropolitan Street Railway Com.pany, from a judgment of the Supreme Court in favor of the plains tiff, entered in the office of the clerk of the county of New York on the 29th day of June, 1901, upon the verdict of a jury for $2,000, and,, also from an order entered in said clerk’s, office on the 12th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Northern Assurance Company, 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 17th day of May, 1900, upon the decision of the court, rendered after a trial at the New York Trial Term before the court without a jury, dismissing the complaint upon the merits.

Appeal by the plaintiff, William B. Fenn, 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 1st day of May, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 13th day of Hay, 1901, denying the plaintiff’s motion for. a new trial made upon the minutes.

Appeal by the defendant, Russell Uhl, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York On the 1st day of May, 1901, upon the verdict of a jury rendered by direction of the court, and also' from an order entered in said clerk’s office on the 13th day of May' 1901, denying the'defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Latham H. Conger, from a final 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 15th day day of August, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrer and directing the dismissal of the complaint.

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 13th day of May, 1901, upon the verdict of a. jury for $2,000, and also from an order entered in said clerk’s office on the 14th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the comptroller of the city of New York from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 26th day of July, 1901, declaring the transfer of certain property of the decedent exempt from taxation.

Appeal by the defendant, Richard Webber, 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 March, 1901, upon, the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 22d day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Ella V. Eisenhuth, 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 14th day of June, 1901, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the American Surety 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 16th day. of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1901, denying the defendant’s motion for a new trial .made upon the minutes.

Appeal by the plaintiff, John J. Keyes, 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 3d day of January, 1902, denying the plaintiff’s motion for an order precluding the defendant from giving evidence on the trial of the action of the accounts aliened in its answer and counterclaim or of the items thereof, and for a bill of particulars of such answer and counterclaim.

<p>Corporation—control of one corporation obtained by another, which improperly ■instigates a foreclosure of a mortgage on the property of the former—the right of action for the wrong rests in the injured corporation itself and not in its stockholders— remedy when in equity.</p> <p>Where one corporation obtains the possession, control and management of another corporation, and in violation of the trust, obligation thereby created causes a default to be made in the payment of the interest due upon the mortgage indebtedness of the latter corporation, and instigates a foreclosure of the mortgage and a sale of the mortgaged property to a third corporation acting in its interest, with the result that all the stock of the mortgagor corporation is depreciated in value, the right of action resulting from the breach of the trust obligation vests in the mortgagor corporation.</p> <p>ITn case of the refusal or neglect of the mortgagor corporation to bring the action it may be brought by a stockholder thereof, in his own name, suing in the right of the corporation, which must be made a party, but in no event can it . be brought in the individual right of a stockholder who has suffered no wrong, contradistinguished from the wrong suffered by the corporation.</p> <p>'The action may be brought at law where the damages are susceptible of proof in such an action; ordinarily the remedy is in equity.</p>

. Appeal by the New York and Harlem Railroad 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 21st day of December, 1901, directing said company to issue and deliver to Gilbert M. Speir, Emily S. Arnold and Julia S. Wright, as executors, etc., of Gilbert M. Speir, deceased, a new certificate for 100 shares of the capital stock of said corporation, in the place of a…

Appeal by the defendant, The. American Surety Company of New York, substituted as defendant in place of Thomas J. Dunn, as sheriff of the county 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 New York on the 4th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the Yth day of March, 190-1, denying the defendant’s motion for a new trial made…

Appeal by the defendants, Albert Comstock and Everit Brown, composing the firm of Comstock & Brown, 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 30th day'of April, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of May, 1900, denying the defendants’ motion for a new; trial made upon the minutes.

Appeal by the defendants, Edwin H. Peck and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1901, upon the verdict of a jury, and also from an order bearing date the 25th day of February, 1901, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.

<p>Taxpayer’s action — town board enjoined from auditing expenses of assessors in defending certiorari proceedings to review an excessive assessment — bad faith of the assessor's — ratification by the town board — notice to persons rendering services to the assessors.</p> <p>Expenses incurred, by the assessors of a town in defending, without the direction or resolution of the town board, certiorari proceedings instituted to review an assessment made by such assessors which, owing to the gross negligence, bad faith or malice of the assessors, was grossly excessive, are not proper town charges under section 180 of the Town Law (Laws of 1890, chap. 569, as amd. by Laws of 1897, chap. 227), and the audit thereof by the town board with knowledge of all the facts is illegal.</p> <p>The fact that after the claims had been audited the town board by resolution attempted to ratify the action of the assessors in defending the certiorari proceedings and in incurring such expenses will not validate such claims.</p> <p>A person rendering services in the certiorari proceedings, as a witness or as stenographer, solely upon the employment of the assessors, is chargeable with ■ knowledge of the limitations of the power and authority of the assessors and will be relegated to his remedy against the assessors personally.</p> <p>The payment of the claims thus illegally audited by the town board may be enjoined at the suit of taxpayers of the town, and the members of the town board are properly made parties to such action.</p>

Appeal by the defendant, Jacob M.. Leonhardt, from an order of the Supreme Court, made at' the Hew York Special Term and entered in the office of the clerk of -the county of Hew York on the 2d day of Hovember, 1901, denying sáid deféndant’s motion for a new trial upon the ground of newly-discovered evidence. ■ ■

Appeal by the plaintiff, Thomas J. Backes, from an order of the Supreme Court, made at the ÍSTew York Special Term and entered in the office of the clerk of the county of Rew York on the 10th day of December, 1901, denyingthe plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, William H. Crosby, from an inters locutory judgment of the Supreme Court in favor of the plaintiff . and of the other defendants, entered in the office of the clerk' of the county of New York on the 9th day of March, 1899, upon the decision of the court rendered after a trial at the New York Special Term directing an accounting by. the defendant Keim as assignee,, and appointing a referee to take and state such account; also from a final judgment of…

Appeal by the defendant, Caroline Kruse, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of blew York on the 15th day of August, 1901, upon the decision of the court rendered after a trial at the ¡New York Special Term.

■ Appeal by the plaintiff, Patrick F. Burns, 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 8th day of May, 1900, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint.

<p> Sodomy—conviction on the uncorroborated testimony of an imbecile, not sustained —if the witness be intelligent he is an accomplice—effect of no specific provision as to corroborative testimony in respect to this particular crime. </p> <p>A conviction of the crime of sodomy -will not be sustained upon the uncorroborated testimony of the complaining witness, a youth seventeen years of age, an imbecile or person of weak intellect, who, several times during his testitimony, asserts that his statement that the defendant was the guilty party was not true-and that his father had told him to tell the story which he had told.</p> <p>If such a witness be regarded as sufficiently sound mentally to entitle his testimony to be credited, and as sufficiently intelligent to understand the nature of 'the crime, he is an accomplice whose uncorroborated testimony is inadequate, under section 899 of the Code of Criminal Procedure, to sustain a conviction.</p> <p>The fact that there is uo specific statutory provision .that a conviction of the. crime of sodomy cannot be had upon the uncorroborated testimony of an accomplice, does not obviate the necessity in such a case of producing testimony corroborating, the accomplice as, in the absence of a specific provision upon the subject, the court should.follow the general provisions which have been enacted and legal precedents..</p>

Appeal by the defendant, William N. Parkes, from an order of the Supreme Court, made at the New York Special' Term and entered in the office of the clerk of the county of New York on the 9th day of January, 1902, continuing a temporary injunction during the pendency of the action.

Appeal by the defendants, The Metropolitan Elevated Railway Company and another, from- a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of New York on the 19th day of June, Í901, upon the decision of the court rendered after a trial at the New York Special Term,

Appeal by Gilbert E. Jones and another, as surviving executors, etc., of George Jones, deceased, and others, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of June, 1900, dismissing an appeal from an order assessing the tax, under the Transfer Tax Law, upon the estate of George Jones, deceased, and confirming the report of an appraiser.

Appeal by the defendant, The Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of March, 1901, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 11th day of March, 1901^ denying the defendant’s motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1219 of the Code of Civil Procedure.</p>

<p>Notes, given to secure usurious interest on a prior note, are unenforeible —pendency of cm action to recover more than $3,000 in the City Court of New Torh—it bars an action for the same cause in the Supreme Court — the demand, for more than $3,000 does not deprive the City Court of jurisdiction.</p> <p>Where the maker of a promissory note, in order to secure* an extension of the time of payment thereof, executes to the holder two other promissory notes for an amount in excess of the legal interest on the original note during the extended period, such notes are not enforcible.</p> <p>Where the holder of a note for $4,317.60 brings an action to recover thereon in the Oity Court of New York, and after he becomes entitled to enter judgment therein, but before he has actually entered said judgment, becomes aware of the provision of section 316 of the Code of Civil Procedure'which limits a judgment entered in an action brought in the City Court of New York to §2,000, and thereupon tears up the summons and complaint in the City Court action and commences an action in the Supreme Court, the pendency of the action in the City Court of New York is a bar to the maintenance of the action in the Supreme Court.</p> <p>Section 316 of the Code of Civil Procedure does not operate to deprive the City Court of New York of jurisdiction of an action brought to recover a'greater sum of money than §2,000, but simply limits the amount of the judgment which can be rendered in such an action to §2,000.</p>

<p>Appeal by the defendants, Philip M. Knight and another, from so much of 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 September, 1901, upon the decision of the court rendered after a trial at the New York Special Term as affects said defendants.</p>

Appeal by the plaintiff, Harold Sturges Rankine, 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. 11th day of February, 1901, upon the decisión of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint. •

<p>Attorney and client—scope of the former’s authority — notes are merged in a judgment recovered thereon — thereafter they cannot as such be set up as a counterclaim — a judgment in another action in favor of the defendant must, to constitute a counterclaim,, be pleaded—when it must be set up by supplemental answer.</p> <p>An attorney engaged in the actual management of a cause may hind his client by admissions made while so engaged, or by statements and correspondence relating to the cause, but he has no authority under a general retainer to compromise the action or to bind the client by statements that he has no cause of action or that he has surrendered whatever rights he possessed.</p> <p>Promissory notes, upon which the holders thereof have recovered judgment against the makers, are merged in the judgment and the notes cannot be declared upon as such and be made the basis of a counterclaim in an action brought by the makers thereof against such holders.</p> <p>Under section 500 of the Code of. Civil Procedure, requiring new matter constituting a defense or counterclaim to be pleaded, a defendant is not entitled, under a general denial, to introduce in evidence a judgment, entered in another action between the same parties, where the effect is to admit the cause of action averred and proved by the plaintiff and defeat it by matter entirely extrinsic thereof.</p> <p>Even if such a judgment would otherwise be admissible under a plea of general denial, yet, where it appears that such judgment was not rendered until nearly five years after the commencement of the action in which it is sought to be introduced in evidence, the defendant must, if he intends to rely on the judgment as a defense, apply for leave to set it up by way of supplemental pleading.</p>

<p>Appeal by the defendant, the Van Wie New York Grocery Company, 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 28tli day of June, 1901, upon the verdict of a jury for $2,250, and also from an order entered in said clerk’s office on the 6th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Arsen Arsene and another, trading under the firm name of “ A. Arsene & Son,” 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 December, 1901, enjoining said defendants from taking any further proceedings in an action brought by them against the plaintiff in the present action until the determination of the present action.

Appeal by the United States Mortgage and Trust Company, as executor, etc., of Frances Mary Woodward, deceased, and others, from a decree of the Surrogate’s- Court of the county of Orange, bearing date the 14th day of January, 1901, and entered in said Surrogate’s Court, settling the accounts of Francis W. Woodward, as executor and trustee of and under the last will and testament of William A. Woodward,, deceased, and also from an order of the Surrogate’s Court of the county…

Appeal by the defendant, Charles M. Creamer, tenant, from a final order of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the 10th day of October, 1901, in summary proceedings brought to recover possession of real estate. -

Appeal by the defendant, Eugene Flauraud, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 5th day of .June, 1901, upon the verdict of a jury.

<p>ffunieipal corporation exhausting the water in adjacent land by means 'of driven wells—remedies of the owner-?-damages at law, measured by the rental, not' the productive value—proof of the latter as a basis for the former — Statute of Limitations—mode of assessing damages which, can be estimated in rhor.e than one way. ,</p> <p>a municipality, by means of driven wells and pumps located upon land owned by it, removes the water appurtenant to the adjoining premises for distribution and sale to the inhabitants of the municipality, the owner of the adjoining property may maintain successive actions at law to recover the damages sustained by him until the wrong is abated; or he may bring an equitable action to restrain the municipal corporation from operating its pumps until it has acquired the property rights of such owner in the water appropriated by it,</p> <p>If the owner of the adjoining property, which was used for farming, market gardening and as a fish and game preserve, elects to bring an action at law to recover damages, the measure of such damages is the rental value of the premises during the timé, that the wrong has continued and not the income which the owner would have derived from the cultivation of the land during that time but for the wrongful conduct of the municipality.</p> <p>Evidence of the use to which the land has been dedicated by the owner, the' quantity of produce it has raised, its adaptability to such purpose, the quality - of the water which flowed in" the streams appurtenant thereto, the use to which such water was put in raising fish, etc., is proper as tending to show the rental, value of the property, but -not as furnishing a basis for the computation of damages. ' '</p> <p>The Statute of Limitations is a bar to the recovery of any damages which have accrued more than six years prior to the commencement of the action.</p> <p>"Where damages may be estimated in more than one way, that mode should be adopted which is most definite and certain, even though full compensation will not be obtained thereby, provided the redress afforded is not grossly inadequate.</p>

Appeal by the plaintiff, Thomas McGrath, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of January, 1902, denying the plaintiff’s motion to continue pendente lite a temporary injunction restraining the defendant Edward M. Grout, as comptroller of the city of Mew Yoi;k, from paying the salaries of certain officers of the county of Kings.

Appeal by the defendant, The City Trust, Safe Deposit and Surety. Company of Philadelphia, from an order of the Supreme Court, made at the Orange Special Term, and entered in the office of the cleric of the county of Orange on the 21st day of October, 1901, granting the plain tiff’s motion for leave to serve an amended complaint,-and also from an order entered in said cleric’s office on the 26th day of Octobei’, 1901, modifying the first above-mentioned order.

, Appeal by the defendant, The Town of Wappinger, 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 21st day of February, 1900, upon the verdict of a jury for $850,, and also from an ¡order bearing date the 19th day of February, 1900, and entered in said clerk’s x office, denying the defendants motion for.a new. trial made upon, the minutes,

. Appeal by the defendants, Phebe S. Backus and, others, from a judgment of the Supreme Court in favor of the-plaintiff in the first above-entitled action, entered in the office of the clerk of the county of Kings on the 5th day of July, 1901, upon the decision of the. court rendered after a trial before the court without a jury at the Kings County Trial Term.

Appeal by the plaintiff, John S. Williams, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 5th day of June, 1901, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, the Brooklyn Heights Railroad Company, from a judgment <of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of June¿ 1901, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 21st day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Arthur 0. Kimber, 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 -3d day .of '. June, 1901, setting aside the verdict of' a jury for .$500 rendered in favor of the plaintiff, and granting the defendant’s motion for a'. new trial made upon the minutes. ■ .

Appeal by the plaintiff, George W. Bloodgood, 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 8th day of April, 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 17th day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, William Trist .Bailey, 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 Suffolk on the 23d day of November, 1901, denying the defendant’s motion to vacate and set. aside an execution issued upon the plaintiff’s judgment theretofore entered in the action, and to enjoin the plaintiff from issuing an execution upon said judgment.

Appeal by the plaintiff, James White, from portions of a judgment of the Supreme Court in favor of certain of the defendants, • entered in the office of the clerk of the county of Putnam on the 21st day of January, 1901, upon the report of a referee, and also an appeal by the defendant, Edward Livingston, from the whole of said judgment.

Appeal by the defendants, Edward Wright and another, as executors, etc., of Hester Hoag, deceased, 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 5th day of September, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June,. 1901, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, David L. Harris, 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 15th day of October, 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, George. Riñgler & 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 18th day of Hay, 1901, upon the decision of the court rendered aítér a trial before the court without a jury at the Kings County Trial Term, a jury having been waived.

<p>Eminent domain—an infant having a vested remainder may, by his guardian ad litem, maintain an abutter’s action against a railroad company —proper form of judgment therein.</p> <p>An infant, having title to a vested remainder in an undivided interest in property abutting upon a street in which an elevated railroad is operated, may, by his guardian ad litem, maintain an abutter’s action to restrain the maintenance and operation of such railroad.</p> <p>A judgment rendered in such an action which grants the plaintiff injunctive relief, but provides that the injunction shall not become operative if the defendants shall tender to the plaintiff the amount of fee damages, in which event they shall he entitled to receive from the plaintiff a proper grant of the right to operate the railroad, “to be executed by the persons having any title to or lien upon said premises,” secures to the defendants the right to insist upon obtaining a good title to the infant’s interest in the property before being obliged to pay the fee damages or before the injunction will become operative.</p>

Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 19th day of June, 1901, upon the verdict of a jury.

Appeal by the plaintiff, Charles N, Pracht, as one of the marshals of the city of New York, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant,, entered on the 6th day of November, 1901, upon the decision of the court.

Appeal, by Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of May, 1901, directing that a peremptory writ of mandamus issue to the successor in office of Henry H. Lyman, as State Commissioner of Excise of the State of New York, requiring him to issue two orders for the payment of a rebate…

<p>Civil service—in determining whether .an appointment'to office will involve, an ■ expenditure in excess of the a/mount to which the expenses of a department are limited, illegal payments should he excluded — de facto officers—had faith in oficial appointments not presumed.</p> <p>In determining whether the appointment in November, 1897, and in December, 1897, by the fire commissioners of Long Island City of seventy-four members of the fire department was invalid, in that it involved an expenditure in excess of §40,000, the limit fixed for- the expenses of the department ■ (Laws of 1890, chap. 232, §§ 4, 7, as amd. by Laws of 1894, chap. 122), the salaries paid to the • ten firemen appointed at the close of the year 1896; in contravention of the express prohibition of the civil service laws, and who were dismissed in November, 1897, must be regarded as still, constituting part of the fund — an adequate remedy being provided for the recovery of such money from the municipal officers responsible for its unlawful payment, of which it must be presumed that -the city has availed itself. Such ten men are not to be considered as defacto incumbents of the positions held by them, in such wise that the payments of their salaries to them were lawful.</p> <p>Moneys paid out of the.fire department fund, in violation of section 39 of title' 11 of the charter of Long Island City (Laws of 1871, chap. 461), providing that “All work to be done and all supplies to be furnished for the corporation, . involving an expenditure of more than one hundred dollars, shall be by contract founded on sealed bids, or on proposals made in compliance with public notice for the full period of ten days,” must also be regarded as constituting part of the fund.</p> <p>The Appellate Division will not assume that the appointment of the seventy-four members of the fire department in November and December, 1897, was made in bad faith and for the purpose of embarrassing the administration of the greater city of New York, created on January 1, 1898, especially where it appears that the authorities of" the greater city removed the seventy-four men so appointed and put in their place fifty-three men whose combined salaries were greater than the combined salaries of the seventy-four men removed.</p>

<p>Mandamus to compel payment of a liquor tax certificate rebate — a violation of the Liquor Tax Law defeats the right to rebate — where it is alleged, an alternative writ may issue—what is a dismissal of a prosecution therefw against the licensee.</p> <p>An order made by a magistrate of the city of New York, discharging a- person charged with violating the Liquor Tax Law, and reciting that "there is no sufficient cause to believe him guilty of a violation of that law, is a dismissal of the proceeding upon the merits within the meaning of section 25 of the Liquor Tax Law relating to the payment of a rebate upon a surrendered certificate.</p> <p>A violation of the Liquor Tax Law', by trafficking in liquor after the surrender of the certificate and within the term for which the tax was paid, is, of itself, sufficient to defeat a claim, by an assignee of the certificate, for the payment of the rebate for the unexpired term, although no prosecution has ever been instituted on account of siich violation.</p> <p>Consequently, where the State Commissioner of Excise, in opposition to a motion for a writ of mandamus to require him to pay a rebate upon a surrendered certificate, sets forth three separate violations of the Liquor Tax Law by the holder of the certificate during the term for which the tax had been paid, and that one of these violations had been made the basis of a criminal prosecution and had resulted in his acquittal, but that no criminal charge had ever been made against him with reference to the two other alleged violations, the relator is entitled to an alternative writ and not to a peremptory writ.</p>

<p> Mandamus against the comptroller of New York city to compel payment of á ■ claim for grading in town of Gravesend—what certificate is required—who may make it. </p> <p>The assignee of a contract for the construction and grading of Neptune avenue in the town of Gravesend cannot compel the comptroller of the city of New York, who is the successor of the treasurer of the town of Gravesend, to pay for extra work and materials, performed and furnished by him at the request of the engineer and inspector in charge of the work, and with the approval and direction of the grading commissioners, out of the funds realized by the sale of the bonds, issued by the town of Gravesend, under chapter 118 of the Laws of 1892, as amended by chapter 171 of the Laws of 1893, unless he obtains the certificate required by section 8 of said act, which provides: “Such payments to be made by said treasurer, except for the redeeming of bonds, shall be made by the said treasurer, on the certificate of the supervisor, town clerk and justices of said town, or a majority of them, attached to the demand, stating that the materials and labor, when for such matters, have been provided and the work done and that no part thereof has been paid or satisfied, and as to all other demands that the same is justly due as provided by law and wholly unpaid.”</p> <p>Under section 6 of chapter 449 of the Laws of 1894, which annexed the town of Gravesend to .the city of Brooklyn, the supervisor, town clerk and justices of the town in office at the time of such annexation, or such of them as survive, may make such certificate.</p> <p>The necessity of obtaining the certificate mentioned in said section was not confined to cases where general claims were to be paid by the town^treasurer.</p>

<p>Appeal by the plaintiff, James E. J. Murphy, from an order of the Supreme Court, made at the Orange Special Term, bearing date the 1st day of June, 1901, and entered in the office of the clerk of the county of Westchester, changing the place of trial of the action from the county of Westchester to the county of Orange.</p>

<p> Railroad—refusal to pay fare—where force has been rightly used, to remove a pas* . senger refusing to pay, he cannot by offering to pay entitle himself to remain. </p> <p>Where, a passenger on a railroad train refuses to pay any fare for-a boy who . accompanies him, upon the-ground that such boy is tinder five years of age, which is disputed by the conductor, and interferes to prevent the conductor's removing the boy, and upon the arrival of the train at a station, the conductor, with the assistance of a brakeman, proceeds to eject the passenger, the . fact • that, after- they have, by physical- force, pushed him out of the car upon the platform, the passenger offers to pay the boy’s fare, does not make it unlawful" ■ for the conductor to refuse to accept the fare' and continue the process of expulsion. .</p>

<p> Trial by jury—a compulsory reference cannot be ordered iñ a common-law action brought by an executor or administrator. </p> <p>The act of the General Assembly of the Colony of New York, passed' December 31, 1768, authorizing the Supreme Court to refer cases, “ other' than such as shall be brought .by or against executors and administrators, ” ■ involving the , examination of a long account, which was revived on February 16, 1771, was continued in force by section .35 of the first Constitution of the State.of New York, adopted in 1777.</p> <p>■Consequently, under the provision of section 41 of the Constitution of 1777, “ that trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established, and remain inviolate forever,” which has been incorporated in section 2 of article 1 of the Constitutions of 1846 and 1894, the Legislature has no power to authorize the court to order,, against the will Of the'plaintiff, a reference in an action brought by an executor or administrator to enforce a common-law liability.</p>

Appeal by the defendant, Francis D. Carley & Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the officé of the clerk óf the county of Rings on the • 31st day of October, .1901, substituting the respondent Ferdinand H. Wismer,- as trustee in bankruptcy'of Francis D. Carley, bankrupt, as the .party plaintiff in this action in the place and stead of George D. Patten, the original plaintiff. ■ .

Appeal by the defendant, Thomas G. Carlin, from a judgment of the Supreme Court in favor of the defendants, James W. Lane and Frederick B. Warner, composing the firm of J. W. Lane & Company, entered in the office of the clerk of the county of Queens on the 16th day of August, 1901, upon the report of a referee, adjudging that the defendants, James W. Lane and Frederick B. Warner, have a valid lien for $4,915.75 against certain moneys due from the defendant, The City of New…

<p> Oómmisdon on a sale—efficient cause thereof -r- right of a cleric óf the vendor to recover, a commission from the, vendee for influencing his employer to reduce the price—notice to the vendor that the cleric was acting for the vendeé. </p> <p>In an action, brought by a clerk in the employment of one Powers, to recover for alleged services rendered by him, in inducing Powers to sell a piece of land to the defendant for $10,000, instead of $13,000, the price first asked for the property, the following testimony was given by the plaintiff: “In the meantime I had made some.inquiries. Mr. Powers, talked to. me about the- price offered and I suggested to him. that ten thousand dollars was a fair price, and the next day, after sleeping it Over, Mr. Powers told me to tell Mr. Carey (the defendant) that he could have it for ten thousand dollars.”</p> <p>Held, that the evidence was insufficient to warrant a finding that the plaintiff was the efficient cause in bringing about the reduction, especially where Powers was not called upon to testify as to the influence exerted upon him by the plaintiff in the matter of the reduction.</p> <p>Semble, that; in addition to showing that he was the efficient cause in bringing ■ about the reduction,' the plaintiff was obliged to show that Powers was aware of the fact that the plaintiff was acting for the defendant in endeavoring to ■ bring about-the reduction which the latter desired.</p>

<p>Appeal by the defendant, Benjamin Andrews, doing business under the name of B. Andrews & Co., from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 13th day of November, 1901, upon the decision of the court.</p>

Cross-appeals by the plaintiff James H. Flynn and the defendant The City of New York, from a judgment of the Supreme Court rendered in the first above-entitled action and entered in the office of the clerk of the county of Kings on the 27th day of December, 1899, upon the report of a referee.

Appeal.by the plaintiff, Helen T. Campbell, 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 October, 1901, as resettled by an. order made at the Kings County Special Term and entered in the. office óf the clerk of .the county of Kings on the 28th day of October, 1901, denying the plaintiff’s motion for leave to make, file and serve a supplemental complaint.

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 Orange on the 15th day of January, 1901, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 15 th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Constantine Gilewicz, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, entered on the 31st day of October, 1901, dismissing the plaintiff’s complaint.

' Appeal by the plaintiff, Catharine Palcheski, as administratrix, etc., of Joseph Palcheski, 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 4th day of November, 1901, upon- the dismissal of the complaint by direction of th¿ court after a trial at the Kings County Trial Term.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, éntered in the office of the clerk of the county of Kings on the 31st day of October, 1901, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 12th day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Alice Sutcliffe McDowell and another, as executrices, etc., of Albert McDowell, 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 2d day of November, 1901, upon the verdict of a jury rendered by direction of the court.</p> <p>The notice of appeal states that the defendants also appeal from the order directing the verdict. No such order, however, appears in the record.</p>

. Appeal by the plaintiff, Alfred. Mussinan, from so,- much of an order of the Supreme Court, made at the Kings County Special Term, bearing date the'18th day of November, 1901, and entered in the office of the clerk of the county of Kings,.as fails to direct the defendant to furnish a bill of particulars of the damages alleged in the second counterclaim of the answer to have been, sustained by the defendant, and from so much of said order as- fails to- direct the defendant…

Appeal by the defendant, The New 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 Orange on the 6th day of April, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 2d day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes. . , The action was brought to recover damages…

Appeal by the defendant, Lorenzo B. Smull, from a judgment of the County Court of Nassau county in favor of the plaintiff,' entered in the office of the clerk of the county of. Nassau on the 14th day of May, 1901, upon the verdict of a jury rendered by direction of the court..

Appeal by the defendant, James F. D. Lanier, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the cpunty of Nassau on the 29th day of March, 1901, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 3d day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Hugh F. Dolan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 18th day of January, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint upon the merits.

Appeal by the plaintiff, George A. Hawkins, 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 30th day of April, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by James A. Sperry, one of the legatees under the last will and testament of Bernard Peters, deceased, from an order of the Surrogate’s -Court of the county of Kings, entered in said Surrogate’s Court on the 3d day of December, 1901, assessing and fixing a transfer tax upon that portion of the estate of the said Bernard Peters, deceased, claimed by said Sperry as legatee and devisee.

Appeal by the plaintiff, Mary E.. Sidmonds, 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-5th day of May, 1901, setting aside the verdict of a jury for $1,500 in-favor of the plaintiff and granting the defendant’s motion for á new trial.

Appeal by John J. Burnell, the proponent in the above-entitled proceeding, from a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 22d day of Juné, 1901, refusing to admit to probate a certain paper purporting to be the last will and testament of Jotham S. Tompkins, deceased.

<p>Appeal by the défendants, Henry W. Schreiber and another, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of June, 1901, upon the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the 10th day of July, 1901, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by Edward J. Kearney, an heir at law and next' of lcin of Patrick Kearney, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 4th; day of February, 1901, admitting to probate an instrument propounded as the. last will and testament of Patrick Kearney, deceased, .

<p>Appeal by Wilbur F. Tredwell, individually and as executor, etc., of Elizabeth M. Bronson, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of November, 1901, directing the said executor to pay $500 in satisfaction of a judgment for $1,258.06 obtained against his testatrix in her lifetime.</p>

<p> Minutes of a corporation, as evidence—they need not be signed by the secretary. </p> <p>The omission of the secretary of a corporation to sign the minutes taken by him at a particular meeting and entered in the original minute book, does not render such minutes incompetent upon the trial of an issue as to whether the corporation passed a certain resolution at that meeting.</p>

Appeal by the plaintiff, Peter E. Farnum, from that part of a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Orange on the 18th day of June, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term, which dismissed the complaint as to the defendant St. John.

Appeal by the defendant, John Oprandy, from a judgment of the County Court of the county of Westchester in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of March, 1901* upon the decision -of the court rendered after, a trial before the court without a jury.

Appeal by Henry G. Atwater and another 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 20th-day of June, 1901, directing the respective parties to ■ the proceeding to appear and give evidence therein; also from an order entered in said clerk’s office on the 28th day of June, 1901, overruling the appellants’ objections to the proceeding also from an order entered . in said clerk’s'…

■ Appeal by Henry Jacobs, the assignee of the purchaser at a judicial sale, 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 81st day. of October, 1901, denying his motion to be relieved from the purchase.

Appeal by' the defendants, Gharry 0. Appleby and another, as executors, etc., of Helen 0. Pratt, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in thé’office of the clerk of the county of Suffolk on the 19th day of June, 1901, upon the decision of the court rendered after a trial at- the Suffolk Special Term. ^

<p>City magistrates of the city of New York—section 1392 of chapter 466 Of the Laws of 1901, as to their election in the lorough of Brooklyn is unconstitutional — repealing clause dependent upon the validity of the matter connected-with it — error in the certificate of appointment as to the duration of the term, rega/rded as surplusage—application of various constitutional provisions to judicial officers in cities, considered. •</p> <p>Section 1392 of the revised Greater New York charter (Laws of 1901, chap. 466), . amending sections 1392, 1394 of the original Greater New York charter (Laws of 1897, chap. 378) (which provided that the city magistrates throughout the entire city should he appointed by the mayor and hold office for a term óf ten years) by providing that, at the general election to be held in the borough of Brooklyn in the year 1901,there shall be elected in each congressional district, as then constituted in said borough, one city magistrate, and in the territory constituting the borough of Brooklyn there shall be elected two city . magistrates at large, and the terms of office of all said city magistrates so elected shall commence on the first day of January, nineteen hundred and two, ■ and continue for six years thereafter,” violates the last clause of- section ]7 of article 6 of the Constitution of 1894, whichpro vides, “all other judicial officers in cities, whose election or appointment is not otherwise provided for in this' article, shall be chosen by the electors of such cities, -or appointed by some local authorities thereof ”—Bartlett and Jenks, JJ., basing their decision on the ground that the words “the electors of such cities,” used in that clause, mean the electors of the whole of the city and not simply of a part thereof; and Woodward, J., on the ground that the clause quoted does' not empower the Legislature to make use of the elective system in one portion of a city and of the appointive system in another portion thereof, for the same judicial office.</p> <p>The repealing clauses, forming a part of the amendatory legislation, are so connected therewith that they arc not to be regarded as any more effective than the rest, and a judgment establishing the unconstitutionality of the elective system operates to restore the provision of the original Greater New York charter in regard to the appointment of magistrates in the borough of Brooklyn.</p> <p>Where it appears that the terms of the city magistrates in the borough of Brooklyn expired April 30, 1901, and that after a provision of the amendatory legislation extending the terms of four of such magistrates to January 1, 1902, had been declared unconstitutional, the mayor of the city of New York, in obedience to a writ of mandamus, appointed four magistrates to succeed those whose terms the amendatory legislation had attempted to extend, a statement in the certificate of appointment that such appointment was “ for the unexpired portion of a term, which commenced May 1, 1901, and which ends December 31, 1901,” will be regarded as surplusage, and the four persons so appointed will be deemed to have been appointed for the term prescribed by the original charter, namely, ten years.</p> <p>Goodrich, P. J., and IIirschberg, J., dissented.</p> <p>Semble (per Bartlett and Jenks, JJ.), that the application of the last clause of section 17 of article 6 of the Constitution of 1894 is not limited to those judicial officers of a city whose offices were in existence at the time of the adoption of the Constitution.</p> <p>Semble (per Bartlett and Jenks, JJ.), that the courts over which the magistrates of the city of New York preside are “ inferior local courts ” within the meaning of section 18 of article 6 of the Constitution of 1894, but the election or appointment of such magistrates is excluded from the operation of such section by virtue of the exception contained therein.</p> <p>Semble (per Bartlett and Jenks, JJ.), that the organization of the present Municipal Court of the city of New York is not unconstitutional, because the justices are elected in specified districts in the city and exercise their functions in various other districts, as the organization of such court is governed by that clause of section 17 of article 6 of the Constitution of 1894 (and similar provisions of the former Constitutions) which provides: “Justices of the peace and district court justices may be elected in the different cities of this State, in such manner, and with such powers, and for such terms, respectively, as are or shall be prescribed by law,” under which clause it was competent for the Legislature to provide for the election of justices by districts, if they saw fit.</p> <p>Semble (per Bartlett and Jenks, JJ.), that a construction of the last clause of section 17 of article 6 of the Constitution of 1894, which requires that judicial officers in cities, if elected, shall be chosen at an election in which all of the electors of the city shall have an opportunity to participate, does not render unconstitutional the present method of choosing justices of the City Court of New York, i. e., by vote of the electors in the territory comprising the old city ■ of New York, as the word “cities,” employed in that' clause, refers to cities existing at the timé provision was originally made for the creation of the judicial offices, and, under that clause, a statute providing for the choice of judicial officers by the electors of thé city is not rendered unconstitutional by the subsequent incorporation of that city in a larger one, so long as the jurisdiction of the court and its judges is confined to the territory in Which the judges are voted for.</p> <p>Semble (per Bartlett and Jenks, JJ.), that section 2 of article 10 of the Com stitution of 1894, providing, “ All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages,, or of some division thereof, of appointed by such authorities thereof, as the Legislature shall designate for that purpose*” does not apply to judicial officers in cities whose election or appointment is provided for in section 17 of article 6 of that Constitution.</p> <p>Semble (per Bartlett and Jenks, JJ.), that the words “ part of a city,” used in section 3 of article 12 of the Constitution of 1894, providing, “ All elections of city officers, including supervisors and judicial officers pf inferior local courts, elected in any city or part of a city, and .of county officers elected in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a city, except to fill vacancies, shall be held on the Tuesiday succeeding the first Monday in November in an odd-numbered year; and ■the term of every such officer shall expire at the end of an odd-numbered year,” do not apply to judicial officers of inferior local courts, but only to such city officers and supervisors as aré chosen in parts of a city.</p> <p>Semble (per Bartlett and Jenks, JJ.), that the provisions of the revised Greater •New York charter providing for the election of city magistrates in the borough of Brooklyn, some by congressional districts and others at large, cannot be regarded as a valid exercise of the power conferred upon the Legislature by-section 18 of article 6 of the Constitution of 1894, to establish inferior local courts of criminal jurisdiction, as the Legislature cannot create such a court for a congressional district, and as the provisions for the election óf two magistrates at large in the entire borough, which borough is coterminous with the county of Kings, are so interwoven with the other provisions that the Whole .must stand of fall together.</p>

<p>Appeal by the defendant, David Webster, 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 24th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of November, 1901, denying the said defendant’s motion for a new trial made upon the minutes.</p>

.Appeal by the- defendant, The Brooklyn Heights Railroad Com-, pany, 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 9th day of July, 1901, after a trial of the issues before a jury, directing the issuance of a peremptory writ of mandamus commanding the defendant to- operate its elevated railroad system, from and between the termini of. the.

<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 oil the 13th day of June, 1901, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 1st day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence — direction to one to cross railroad tracks and to a car to proceed, resulting in a collision—submission of the case to the jury—favorable inferences onthe . dismissal of the complaint.</p> <p>The court at the trial of an action to recover damages for personal injuries, has no power to dismiss the complaint upon the merits if there is any evidence given in support of the plaintiff’s claim.</p> <p>On an appeal from a judgment dismissing the complaint upon the merits, the plaintiff is not only entitled to the most favorable inferences deducible from the evidence, but all disputed facts are to be treated as established in his favor.</p> <p>An accident resulting from the direction of an inspector of a street railroad company to a person to drive upon the tracks of the railroad, and to a motorman to proceed with his car around a curve, resulting in a collision, considered to give to such person a cause of action against the company.</p>

<p>Appeal by the plaintiff, George Grating, 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 August, 1901,. upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.</p>

Appeal by the plaintiff, Henry J. Helgers, from an order of the Supreme Court, made at the Richmond Trial Term and entered in ■the office of the clerk of the county of Richmond on the 23d day -of April, 1901, granting the defendant’s motion to set aside a verdict -in favor of the plaintiff and granting a new trial of the action.

Appeal by the defendant, Edward Meislahn, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of June, 1901, upon- the verdict of a jury, and also from an order entered. in said clerk’s office op the 24th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

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 29th 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 22d day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes. . .

Appeal by the defendant, the Westchester Electric 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 Westchester on the 27th day of November, 1901, denying the defendant’s motion for a bill of particulars as to certain items, the motion having been granted as to certain other items.

Appeal by the plaintiff, Cassie Hart, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn^ in favor of the defendant, entered on the. 15th day of July, 1901, upon the decision of the court dismissing the complaint upon the merits.

<p>Appeal by the defendant, Edward Valentine, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester ón the ,8th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the Board of Inspectors of Election in the First Election District of the Second Ward of the City of Mount Yernon, and another, 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 Westchester on the 29th day of November, 1901, directing the inspectors of election in the first district of the second ward of the city of Mount Yernon to reconvene and make a second canvass of the votes cast…

Appeal by the defendant, Robert Quinn, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of February, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term. The action was brought to obtain an adjudication that the plaintiff was seized of and entitled to an undivided one-half interest in certain real property.

Appeal by the defendant, George W. Striker, 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 7th day of April,-1900, upon the decision of the court, rendered after a trial at. the-Westchester Trial Term before the court without a jury, upon an agreed statement of facts.

<p> Change of venue by a defendant indicted for murder in the first degree—the Appellate Division may review an order denying it—comments of the press, when not a sufficient ground therefor. </p> <p>An order denying a motion, made by a person indicted for the crime of murder ' in the first degree, for a change of venue, on the ground that a fair and impartial trial could not be had in the county in which he was indicted, is appeal-able to the Appellate Division.</p> <p>The comments of the press in the immediate vicinity, concerning the crime and the apprehension, of its alleged perpetrators, do not constitute a sufficient reason for changing the venue, where no facts are stated from which it can fairly be inferred that such comments have created a feeling against the defendant which will operate to his prejudice upon, the trial.</p>

Appeal by the petitioner, Annie McGuinness, from so much of an order of the Supreme Court, made -at the Hew York Special Term and entered in the office of the clerk of the county of Hew York- on the 2d day of April, 1901, as limits her recovery to $166.67, with interest from the 17th day of July, 1900, instead of the sum of . $333.33, with interest from the 20th day of. May, 1893.