Volume 69 — New York Supplement

<p>Appeal and Error—Exceptions Reviewable.</p> <p>Where no exceptions to the conclusions of the trial court are filed by the appellants, the review of the appellate division is limited to the exceptions taken by them during the trial.</p>

Action by Eunice NiemoIIer against Naomi Buncombe. From a judgment dismissing the complaint, and from an order setting aside a verdict in favor of plaintiff, she appeals.

<p>Appeal from trial term, Kings county.</p> <p>Action by George Eckert against the city of New York and others. Yrom a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendants appeal.</p>

<p>"Pleading—Amended Answer—Leave to Serve.</p> <p>Where a demurrer to defendants’ answer has been sustained, and defendants ask leave to serve an amended answer, which contains no material change from the first answer, the application should be .denied.</p>

Action by Frederick W. Sander against the New York & Harlem Railroad Company and another, to restrain the construction of defend-ants’ elevated railroad and to recover damages therefor. From a judgment awarding the damages, restraining the construction in part, both parties appeal.

Suit by William D. Ashley against Dexter D. Ashley to set aside an agreement, and to enjoin the transfer of certain bonds. From an order appointing a receiver, the defendant appeals.

Application of Edgar A. Treadwell to tax Ms bill as a real-estate expert and appraiser employed by the city of New York in a proceeding to acquire a site for a city hall.

<p>Action by William R. Young against Joseph G-ilmour for the specific performance of a contract to convey an interest in patents. An interlocutory judgment was entered in favor of the plaintiff, and defendant moved for a new trial, which was ordered heard by the appellate division in the first instance.</p>

<p>Street Railways—Injury to Passenger—Contributory Negligence—Evidence.</p> <p>The plaintiff, in an action against a street-railway company for personal injuries, testified that he signaled the company’s motorman to stop; that the car was stopped, and as he stepped on the running board the car was suddenly started, and he was carried about 15 feet, and struck by a pillar of an elevated road. He was facing in the direction in which the car moved. Several witnesses testified that the plaintiff jumped on the car while in motion, and swung himself along the running board, and that the conductor warned him when he boarded the car to look out for the pillar. Held, that plaintiff was guilty of contributory negligence.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Henry Mehrle against the Brooklyn, Queens County & Suburban Railroad Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Trusts—Wills—Appointment of New Trustee—Power of Court.</p> <p>A will created a trust in testator’s executors in favor of his daughter, and on the death of the latter it was adjudged that the trust fund belonged to testator’s heirs, and should be allotted to them. Thereafter the trustees died, and an heir and devisee prayed the appointment of a trustee to distribute the property among the interested parties, 34 in number, as authorized by the will. Held, that an order of the supreme court appointing such a trustee was authorized by Laws 1882, c. 185.</p>

<p>Execution—Supplementary Proceedings—Bar—Creditor’s Suit.</p> <p>An action by a creditor against his judgment debtor and a third party to set aside alleged fraudulent assignments to such party is not a bar to the examination of the party in supplementary proceedings in the absence of abuse.</p>

<p>Appeal from special term, Columbia county.</p> <p>Action by James P. Currie against William I. Gardenier. From an interlocutory judgment sustaining a demurrer to the answer, defendant appeals.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action for libel by Smith O’Brien against James Gordon Bennett.. From a judgment in favor of the defendant, and from an order denying a motion for a new trial, plaintiff appeals.</p> <p>The notice issued by the defendant to his employés, which was introduced" in evidence in this case, was as follows:</p> <p>“New York Herald, May, 1897.</p> <p>“To the Editors, Subeditors, and All Others Engaged upon the New York Herald and the Evening Telegram: You will please take notice that it- is-the imperative rule of this office that nothing reflecting upon the reputation of any person or corporation be published, either in the New York Herald or the Evening Telegram, until, after strict investigation, the truth of the matter has been ascertained. This has always been the rule prevailing in this office. This notice is to bring the fact to your attention.</p> <p>“By order</p> <p>. James Gordon Bennett.”</p>

<p>Appeal from municipal court, borough of Richmond, First district.</p> <p>Action by Peter Watters against John Simmons Company. From a judgment for plaintiff, defendant appeals.</p>

Condemnation proceedings for the opening of Jerome avenue. From a final order on the report of a referee finding a certain sum due Euphemia A. Hawes, as executrix, and others, against Mary Hynes for attorney’s fees in procuring an award, the said Mary Hynes appeals.

<p>Evidence—Counterclaim—Services Rendered—Proof of Value—Admis SIGNS.</p> <p>Where the plaintiff sued for a loan of $50, and defendant counterclaimed for $125 for services rendered, but no proof as to the value of which was offered, and plaintiff testified that he had paid for all services rendered by defendant, and others testified that defendant admitted the indebtedness of the plaintiff, a judgment on the counterclaim for $75 was against the evidence.</p>

<p>Action by the Power Publishing Company against Charles F. Hall and others. Judgment for plaintiff. Motion by plaintiff for an order that the property of a judgment debtor who was not served with process be made subject to the judgment.</p>

<p>1. Divorce—Pleading—Complaint—Certainty—Motions.</p> <p>Where a complaint for divorce stated the place at which and the person with whom the acts charged were committed, and the times were given as between January and April, 1900, and it was alleged the precise-dates were unknown, a motion to make the complaint more definite and certain was properly denied.</p> <p>'-2. Same.</p> <p>A paragraph of a complaint in divorce charged that the defendant committed . the acts charged during certain years, but the dates, places at which, and persons with whom such acts were committed were not mentioned, and there was only a general statement that such details were unknown to complainant. In opposition to a motion to make the complaint more definite and certain, complainant made affidavit that she was unable to give more particular designation; that she had received information of constant acts such as charged, but that she was unable to obtain the details as to time, etc., from her informants; but complainant failed to show that she had no means of obtaining the information, or that she had endeavored to do so, and failed. Held, that the motion was improperly denied.</p>

<p>Appeal from trial term, Clinton county.</p> <p>Ejectment by Charlotte A. Allerton against Edgar W.' Steele. From a judgment in favor of defendant, plaintiff appeals.</p> <p>Lephe Allen was the common source of title to all the lands shown on the diagram, including the lands in question. She conveyed the lot marked “Parcel A, Church Lot,” to the Baptist Church. She also conveyed to Franklin P. Allen the tract marked “Parcel B,”„ lying to the west of the “Church Lot,” and extending south to the north branch of the Chazy river, not shown on the diagram. She also conveyed to Franklin P. Allen the lot 198x78.4^, marked “Parcel D, Steele,” also the lot marked “Parcel C,” bounded west by parcel B, north by parcel A, south by the river, and east by the west line of parcel D, extended south to the river, including also the gore running north between parcels A and D. She also conveyed to Rhoda A. Allen parcel E, which included the land bounded west by parcel C, and north by parcel D. By conveyances from Franklin P. Allen and Bhoda A. Allen, Edwin P. Francis obtained parcels B, C, and E. The pieces in controversy are the piece of irregular shape lying south of parcel D, and the small piece, nearly square, in parcel C, at the southeast comer of parcel A.</p> <p> </p>

<p>Appeal from special term, Erie county.</p> <p>Quo warranto by the people, on relation of Francis G-. Ward, against Augustus F. Scheu, to determine the title to an office. From a judgment ousting defendant, and declaring relator to have been duly elected and entitled to the office, defendant appeals.</p> <p>This is an action in the nature of quo warranto to determine the title to the office of the elected commissioner of public works of the city of Buffalo, N. Y. The city charter, provides for a board of commissioners consisting of three members, two of whom are appointed by the mayor, and the third is elected by the qualified electors of the city. At the municipal election held in the year 1897 one Martin Maher was elected to this office for the full term of four years, and in due time he entered upon the discharge of his official duties, and continued therein until August 1, 1900, when he died. Thereafter, and on the 24th day of September following, the defendant, Augustus Scheu, was appointed by the mayor to fill the vacancy created by the death of Maher; and in the certificate of such appointment it was declared that the same was “to take effect to-day, and to continue until the first day of January after the municipal election, to wit, until January 1, 1902,” which period embraced the entire unexpired official term of Mr. Maher. Upon being notified of his appointment, the defendant duly qualified and entered upon the discharge of his duties as such commissioner. At the general election held on the 6th day of November, 1900, candidates for three municipal offices of the city of Buffalo, viz. an elected commissioner of public works, a justice of the peace, and a councilman, were voted for to fill vacancies which had been caused by eith.er death or resignation; and the relator, having been placed in nomination by the Republican party for the office first above mentioned, received upwards of 35,000 votes out of a total of 36,414 votes cast for that office, and upon the election thus held he bases his claim to the office in question. Proceeding upon the theory that the vacancies which had theretofore existed in the office of commissioner of public works and councilman had been filled by appointment by the mayor, and that the terms of the respective appointees did not expire until January 1, 1902, no opposing candidates for these two offices were nominated by the Democratic party; but for the office of justice of the peace each party placed a candidate in nomination, and the Republican candidate, having received a majority of nearly 5,000 out of a total vote of about 68,000, was declared duly elected. After the election the relator, Ward, took the oath of office, filed his official bond, and demanded.of the defendant possession of the office to which he claimed to have been elected;, and, such demand being refused, this action was brought. Upon the trial a verdict was directed in favor of the relator, and from the judgment of ouster thereafter entered the present appeal was brought.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by William W. Weigley against Sylvester H. Kneeland. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Rodman B. Ellison and others against James B. Healy. From an order requiring defendant to serve a bill of particulars, he appeals.</p> <p>Plaintiff brought action for goods sold and delivered and on three promissory notes given in part payment for such goods. The complaint alleged the sale, and the delivery of the notes, and that no part of the price of the goods or the notes had been paid. In the first paragraph of the defendant’s answer he admitted that he agreed to purchase certain goods, consisting of cloth, of the plaintiff, and in the third paragraph alleged that the consideration for the notes had failed, in that they were given in the purchase of cloth for use in defendant’s business as a tailor, and that plaintiffs had warranted the cloth to be of fast and durable colors, and marketable in every respect, while it proved to he unmarketable by reason of not being of fast colors, but that a mere inspection would not disclose such defects. On motion of plaintiff the court ordered the defendant to serve a bill of particulars stating: (1) The date when the defendant agreed to purchase certain goods as alleged in paragraph 1 of said answer. (2) The quantity of goods which he agreed to purchase from the plaintiffs as set forth in said paragraph 1 of said answer. (3) The quality, style, and proper description of the goods which he agreed to purchase from the plaintiffs as alleged in paragraph 1 of said answer. (4) The date of the purchases as alleged in paragraph 3 of said answer. (5) The kind, quantity, and description of the cloth alleged to have been purchased in paragraph 3 of said answer.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by David Allen and another against Nicholas H. De Nyse and another. Prom a judgment in favor of plaintiffs, defendants appeal.</p>

New York county. Action by the H. B. Clafiin Company against Carrie Patton and others. From an order denying plaintiff’s motion for a bill of particulars. it appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Alexander Blumenstiel and others against Ewald Pleitmann and others, impleaded with others. Prom an order denying a motion to continue an injunction pendente lite, plaintiffs, appeal.</p>

<p>Appeal from trial term, New York county.</p> <p>. Action by Elvira A. Collins against the Union Railway Company of New York. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.</p>

Action by Henry P. Booth and another against Theodore A. Dodge and others. From a judgment sustaining demurrers, plaintiffs appeal Judgment as to the defendant Dodge reversed.

<p>Contract of Employment—Evidence.</p> <p>Plaintiff attempted to interest the president of a trust company in the business of mortgage insurance, and the latter agreed that, if the trust company took up the business, plaintiff should, have a position as general agent. The trust company refused to take up the business, but certain shareholders organized a company to transact mortgage insurance, with which plaintiff had nothing to do. Held, that plaintiff was not entitled to compensation for such organization as against the trust company; the fact that some of the shareholders had an interest in the mortgage company not making the trust company liable.</p>

Action by Patrick Gallagher against Matthew Baird. From an order denying defendant’s motion for review of taxation of bill of costs and the disallowance of a certain amount for stenographic minutes (68 N. Y. Supp. 659), defendant appeals.

<p>1. Attachment—Affidavit—Sufficien cy.</p> <p>Code Civ. Proc. §§ 635, 636, providing for a warrant of attachment against the property of defendant in certain actions, declare that plaintiff shall not he entitled to such warrant unless he shows by affidavit that one of the causes of action specified exists against the defendant. Held that, where, an affidavit for an attachment does not set out the facts on which plaintiff’s claim for damages for the death of her intestate is based, the order granting the writ must be vacated.</p> <p>2. Same—Nonresidence—Averment—Personal Knowledge.</p> <p>Where an affidavit for a warrant of attachment because of defendant’s nonresidence was made on the personal knowledge of plaintiff, without alleging that plaintiff knew defendant or had ever had any dealings with him, or other facts showing plaintiff’s knowledge, the order granting the writ must he vacated.</p> <p>3. Same—Action for Injuries.</p> <p>Code Civ. Pi’oc. § 635, provides that a warrant of attachment may be granted in actions to recover damages for an injury to person or property in consequence of negligence, fraud, or other wrongful act; and section 3343, subd. 10, defines an injury to.property as one whereby the estate of another is lessened, other than by a personal injury or the breach of a contract. Held, that plaintiff in an action for the death of her intestate through defendant's negligence was not entitled to a warrant to attach defendant’s property.</p>

<p>Appeal from special term, New York county.</p> <p>Proceedings by Irving T. Bush against Bird's. Coler, as comptroller of New York City, and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>.'Security for Costs—Representative or Individual Character of Plaintiff.</p> <p>In an action entitled, “W. F. U., Receiver of B., H. & Co., against S. H.,” defendant is not entitled to an order requiring plaintiff to give security for costs, where the action is brought in plaintiff’s own right individually, and not in his right as receiver.</p>

<p>1. Execdtobs and Administbatobs—Inteblocutoby Accounting—Conclusiveness.</p> <p>Where an executor files an account, and a decree is entered surcharging him with certain property, which decree is not appealed from, it is conclusive on the question of the executor’s liability to such property, and cannot be impeached on final accounting.</p> <p>2. Same—Liability fob Assets Lost—Estoppel of Beneficiables.</p> <p>Though an executor fails to dispose of certain bonds, which are of a character in which he is not authorized to invest the funds of the estate, or to retain as an investment for more than a year, yet he is not to be held personally liable for their subsequent loss; the beneficiaries under the will knowing that the bonds have not been disposed of, and making no objection to his continuing to hold them, at the time he was charged with their possession on an interlocutory accounting.</p> <p>3. Same—Commissions.</p> <p>Where an executor is discharged on his own motion before the final completion of the trust, he is not entitled to full commissions.</p>

Action by William TJrbauer against William Cranstoun, as executor and trustee under the will of Nicholas H. Ghesebrough, deceased. From a judgment in favor of plaintiff, entered on decision of the court at special term, plaintiff appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Charles Colne against the Atlantic Avenue Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

Action by Elias R. Perrine against the Ransom Gas-Machine Company. From an order denying a motion to set aside service of summons, defendant appeals.

<p>1. Corporations—Transfer of Shares—Effect.</p> <p>When stock of a corporation is transferred to and deposited with its president, to be disposed of by him for the prosecution of the interest of the company and raising necessary money to 'carry on its business, he has an absolute right to dispose of it at his discretion for the company’s benefit, and if he applies it in good faith he discharges his duty to the depositors and the corporation.</p> <p>2. Same.</p> <p>One with whom stock of a corporation is déposited under an instrument authorizing him to dispose of the stock for the interests of the company, and to raise money to carry on its business, does not violate the terms on which the deposit was made by transferring part of it to a stockholder under a promise to reimburse him for personal sacrifices in the interests of the company.</p> <p>8. Same—Parol Evidence.</p> <p>A stockholder who has made an absolute transfer of stock to the corporation may show by parol evidence that in consideration of such transfer the corporation agreed to restore the stock to him after the purposes of the transfer had been accomplished.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Anton J. Dittmar against Boni, Count de Castellane, and others. From an order continuing an injunction pendente lite, George J. Gould and others, defendants, as trustees of Jay Gould, deceased, appeal.</p>

Action by George H. Church against the Standard Railroad-Signal Company. From a judgment overruling a demurrer to an affirmative defense set up in defendant’s answer, plaintiff appeals.

<p>1. Pleadings—Demurrer to Answer.</p> <p>Where certain paragraphs in an answer do not constitute a separate defense, it is not error to overrule a demurrer thereto, since a demurrer must be directed to an entire defense.</p> <p>2. Same—Form of Answer.</p> <p>Where certain paragraphs of an answer do not appear to constitute a separate defense, and can only be understood when taken in connection with other paragraphs, but the plaintiff contends that it constitutes a separate defense, he cannot demur thereto, but should move for an appropriate pleading in accordance with Code Civ. Proc. § 507, requiring distinct defenses to be separately stated and numbered in the answer.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Henry B. Dorney against Hugh O’Neill to recover impersonal injuries received while in the employ of defendant. From a judgment in favor of the plaintiff, and from an order denying motion for a new trial, defendant appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Frank Russell against the National Exhibition Company. From a judgment in favor of plaintiff, defendant appeals.</p> <p>The action was brought to recover a balance alleged to be due under a contract which the plaintiff’s assignor, N. F. Pfeffer, entered into on October 19, 1894, to play for the defendant in the New York Baseball Club between April 1 and September 30, 1890. Two causes of action are alleged, based on separate written agreements,—one providing that $2,400 was payable in equal semimonthly installments beginning April 15, 1896, of which amount. $360 was received, leaving $440 unpaid on June 1, 1896, when Pfeffer terminated the contract by joining the Chicago Baseball Club; and the other-naming the sum of $600 similarly payable, of which $90 was received, leaving, as claimed, $410 due and unpaid. The defendant alleges that nothing is-payable under either instrument, for the reason that Pfeffer did not keep-himself in good physical condition, and in consequence was suspended on April 28, 1896; and, further, that there was no consideration for the second agreement. At the trial both agreements were put in evidence, and the-first stipulates, among other conditions, that the defendant “shall have the right * * * to discipline, suspend without pay (for a definite period), or to expel” its players, and that these powers “shall include the right to discipline, suspend without pay (for a definite period), or expel players for carelessness or indifference, lack of sound physical condition, or such other conduct, condition, or circumstance impairing their faithful and thorough performance of duties,” of all of which the defendant was the exclusive-judge; that the player “expressly agrees at all reasonable times during the-term of his employment as aforesaid to subject himself to such rules and discipline, to keep himself in the best physical condition to play ball at home and elsewhere during the playing season”; that “it is understood and agreed that, should the ability of the ‘player’ to perform his duties be impaired, or should he become ill from natural causes at any time during the term herein prescribed,” the defendant might “deduct from the amount then due or to-become due under this contract such proportion of the consideration money herein prescribed as the period of his disability or impairment may bear to the-time prescribed”; and that, if the player violated any of the conditions or covenants on his part in the contract, the defendant had “the right to terminate this contract on reasonable notice, and no further payments shall thereafter be due.” The second agreement is as follows: “In consideration of a gift of six hundred ($600) dollars, to be paid in twelve semimonthly payments during the season of 1896, beginning April 1, 1896, during the continuance-of my services with the New York Baseball Club, I do hereby agree to play to the very best of my ability in appreciation of this present besides other considerations in my contract.” Pfeffer, by deposition taken on commission in Chicago, testified that he was to receive from the defendant $3,000, but" was sent the $2,400 contract and the side contract of $600, both of which he signed and returned; and plaintiff’s counsel stated that it was against the-rules to contract for more than $2,400. He further testified that, although in good physical condition, he received no pay after April 28, 1896, having-been suspended at that time by the following notice:</p> <p>“New York Baseball Club, 39 & 41 Cortlandt St.</p> <p>“New York, April 28, 1896.</p> <p>“Mr. Fred Pfeffer—Dear Sir: I am obliged to lay you off without pay until" you are in fit condition to play ball according to your contract.</p> <p>“Arthur A. Irwin, Mgr.”</p> <p>It was admitted that no other notice than this was given before May 22,. 1896, about which time Pfeffer was told that he was released, and then-entered into negotiations which led to his employment by the Chicago Base- ■ ball Club on June 1, 1896. Referring to the second agreement, the court said: “He certainly cannot recover in this action, or should not be allowed to recover any 'part of that present, if it was a present, which accrued after he-left the club and took service with another.” In this view the plaintiff’s counsel acquiesced. And concerning the notice of suspension the court stated ;• “The defendant here has limited itself, as to suspension, to the right to suspend without pay for a definite period. * * * Consequently it was an attempted suspension, that was void. * * * It is not necessary to go into - all this discussion as to Mr. Pfeifer’s condition, because, as I read the con-tract, If he had been a hopeless paralytic, he would either have been entitled to a cancellation of the contract or suspension for a definite period, and not for the period when he might recover.” The defendant having excepted, the court continued: “If you will agree upon the amount due until he signed with the Chicago Club, I will direct a verdict for that amount.” The defendant’s counsel then said: “We except to the ruling of the court that the pay is to run until the 1st of June. Our claim is that it should run only until the time when the man severed his connection with the New York Club by accepting an oral discharge and by hiring to another. Under the ruling of the court we agree that down to June 1, 1896, there would be due $685, including interest.” A verdict was then directed in plaintiff’s favor for $685, and it is from the judgment so entered that the defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by William C. Roberts against William Lansing. From an order denying a motion for a change of venue, defendant appeals.</p>

<p>Appeal from special term, New York comity.</p> <p>Action by Simeon M. Barber against James T. Lane. From a judgment overruling demurrer to complaint (68 N. Y. Supp. 147), defendant appeals.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>William C. Wotton filed his accounts as executor and trustee of the last will of Phebe E. Bonnefoux, deceased, to which Clara B. De Beau and others filed exceptions. From a decree charging the executor with á loss occasioned by his delay in selling certain securities and refusing to allow him commissions, the executor appeals.</p>

Suit by Consider Parish and others against the New York Produce Exchange and others, as trustees of the Gratuity Fund of the New York Produce Exchange. From a judgment entered on the report of a referee declaring void an amendment to the by-laws of the defendant the New York Produce Exchange, and enjoining the defendants the trustees of the gratuity fund from carrying out its provisions, defendants appeal.

<p>1. Municipal Corporations—Judgment against City—Recovery of Money Paid—Action by Taxpayer—Sufficiency of Complaint.</p> <p>Laws 1892, c. 301, authorizes a taxpayer, for the purpose of preventing waste, to bring an action to recover money paid by the city on a default judgment or a judgment rendered without the interposition of a proper defense. A judgment against a city for a sum less than that claimed was entered by consent of the claimant and the corporation counsel. The complaint in an action by a taxpayer to recover the amount so paid alleged that such claim was illegal in whole or in part, and that the value of the water furnished by the claimant was much less than his claim, and that defenses existed to such claim which would reduce it to much below the judgment. There were no allegations of misconduct or collusion on the part of the corporation counsel. Held, that the complaint was insufficient, since the allegations did not show that. the city was not indebted to plaintiff in a sum equal to the judgment.</p> <p>2. Same—Conclusions of Law.</p> <p>The allegation that there existed defenses to such claim which would reduce it below the judgment if properly presented was an allegation of a conclusion of law, and not of fact, and hence insufficient to support a recovery.</p> <p>3. Same—Authority of Corporation Counsel—Settlement of Suit.</p> <p>The corporation counsel has authority to consent to the rendition of a judgment against the city without first obtaining the consent of the comptroller.</p>

<p>1. Taxation—Lien on Realty</p> <p>A tax does not become a lien on real estate until the issuance of a tax warrant.</p> <p>2. Same—Foreclosure Sale—Liability op Purchaser por Taxes.</p> <p>Code Civ. Proc. § 1676, requires an officer making a foreclosure sale of land to pay all taxes which are a lien on the property. Rule 14, Sp. Term, Sup. Ct., provides that, a referee conducting such sale shall annex an estimate of taxes, costs, etc., to the notice of sale, but that an unintentional error will not invalidate the sale. A referee's notice of a foreclosure sale only required the referee to pay all taxes which were a lien at the time of the sale, hut specified a certain sum as taxes to be paid from the proceeds under the erroneous supposition that the taxes for the preceding year had not been paid. Eeli, that the purchaser was not entitled to have taxes paid from such proceeds which were not a lien on the property at the time of the sale, though they were a lien thereon at the time of the execution of the deed.</p>

Suit by Charles A. . Sherman against Charles A. Tucker, individually and as executor, etc., of G. W. Tucker,, impleaded, etc. From a judgment for plaintiff, defendant appeals.

<p>1. Appeal—Refusal of Instructions.</p> <p>Where plaintiff’s negligence was a material issue, the court’s refusal to charge that contributory negligence was a bar to a recovery is reversible error.</p> <p>3. Same—Error Cured.</p> <p>Where the court, in a suit for injuries, instructs that to make defendant, liable plaintiff must be free from any negligence, and subsequently refuses an instruction on contributory negligence, to which "plaintiff was entitled, error in such refusal was not cured by the previous charge.</p>

<p>Appeal from special term, Kings county.</p> <p>Suit by Hannah Edmondson, who sues as well for herself as for the benefit of other creditors of Henry Hamilton, deceased, against Josephine Hamilton, individually and as administratrix of the estate of Henry Hamilton, deceased. From a judgment for. defendant, plaintiff appeals.</p>

<p>1. Action fob Services—Sale—Recovery of Price—Evidence of Value— Written Contract.</p> <p>Where an action is brought to recover the value of services rendered and goods furnished, and it is not shown that such acts were' in pursuance of a written contract, it is error to exclude evidence of the value thereof on the ground that the services were rendered and the goods furnished in pursuance of a written contract therefor.</p> <p>2. Bills and Rotes—Order—Indebtedness of Drawer—Admissibility of Evidence.</p> <p>Where the defendant, in an action on an order alleged to have been accepted by him, attempts to show that the drawer was indebted to him before the time of the alleged acceptance, and the defendant is shown to have no accurate knowledge of the state of the accounts between him and the drawer, he cannot testify that he was not indebted to the drawer at such time.</p> <p>3. Same—Instructions.</p> <p>An instruction, in an action on an order alleged to have-been accepted by defendant, that it is not reasonable to suppose that defendant would have allowed the drawer, who was claimed to have been indebted to defendant, to have increased his debt by accepting such order, and that the jury should consider such fact, is erroneous, when there is no competent evidence that the drawer was indebted to the defendant.</p>

<p>1. Express Trust—Creation—Uses and Trusts.</p> <p>A complaint which alleges that plaintiff agreed with one S. for the purchase of certain premises; that S., the plaintiff, and defendant further agreed that the property should be taken in the name of thé defendant for the benefit of plaintiff; and that the contract was so executed; that defendant paid no part of the price,—bases plaintiff’s right to recover on an express contract, with which the statute of uses and trusts has nothing to do.</p> <p>2. Same—Enforcement—Pleading.</p> <p>In an action to enforce a contract creating an express trust in land, it is not necessary to allege in the complaint that such contract is in writing, and, if defendant wishes to avail himself of the statute of frauds requiring written proof of a contract, he must plead the statute as a defense, or he will be deemed to have waived it.</p>

<p>Eminent Domain—Municipal Corporations—Streets—Injury to Buildings —Award—Interest.</p> <p>Under Consol. Act, § 978, declaring that the commissioners of estimates may award damages for injuries to buildings by the opening of a street, relator, who was awarded damages for such injuries, and whose land was not taken, was not entitled to interest on the award; section 992, allowing interest on the amount of compensation for land taken from the date on which the city acquires title, not applying to injuries where-no property is taken.</p> <p>O’Brien, X, dissenting.</p>

Action by Mabel Sondheim, an infant, by Sara M. L. Sondheim, her guardian ad litem, against the Nassau Brewing Company, impleaded with the Brooklyn Heights Railroad Company. From a judgment for plaintiff and an order denying a new trial, the Nassau Brewing Company appeals.

<p>Appeal from trial term, Kings county.</p> <p>Action by Mary Fogarty against John Wanamaker. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals.</p>

<p>Counties—Election of Remedies—Submission of Claims.</p> <p>Where a surgeon entitled to compensation from a county for post mortem examinations, as provided by Laws 1873, c. 833, § 2, as amended by Laws 1874, c. 535, § 2, submits his claim to audit, and it is audited and allowed in part and rejected in part, such audit is final, and is reviewable only by certiorari; and he cannot thereafter sue the county for the entire claim, as if no audit had been made.</p>

<p>Submitted controversy by Stanislaw Zarkowski against Sophia L. Schroeder.</p>

<p>1. Libel—Ambiguity—Innuendo—Interpretation by Plaintiff.</p> <p>Where language alleged to he libelous is ambiguous, and plaintiff has. alleged an innuendo which would make the language libelous per se, he is bound by the construction so given, so that, when the court decides that the words used are not capable of the meaning alleged, he cannot recover-on a meaning different from that pointed out, and the court should direct a verdict for defendant.</p> <p>2. Same—Substantial Imputation.</p> <p>Defendant printed a newspaper article stating that plaintiff had obtained possession of certain securities belonging to his father, and only returned them on receipt of a letter from a friend of the father demanding-that the securities be returned, or plaintiff leave the city. Held that, in an action for libel, it was not necessary for defendant to show that such letter had been written in substance as printed, but that proof of the-truth of the substantial imputation was a complete defense.</p>

<p>Appeal from trial term, Suffolk county.</p> <p>Action by R. Walter Bell against Elizabeth Hayes. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.</p>

<p>Guaranty—Statute of Frauds—Termination.</p> <p>Though the statute of frauds requires a guaranty to be in' writing, it may be terminated by parol.</p>

<p>1. Railroads—Abutting Property—Right to Maintain Elevated Tracks.</p> <p>A railroad company which has maintained its tracks in a cut in a city street for 20 years does not acquire a right by adverse possession, as against an abutting property owner, which will entitle it to place its tracks on a viaduct constructed above the surface of the street.</p> <p>2. Same—Evidence—Admissibility.</p> <p>Where a railroad company having a prescriptive right to carry its tracks in a cut in a street places them on an elevated viaduct above the street level, it is not error, in an action for damages to abutting property, to admit evidence of the course of values in adjoining' streets.</p> <p>Van Brunt, P. J., dissenting.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by Harriet M. Fox against Josephine E. Cowperthwait. From an interlocutory judgment overruling a demurrer to the com-plaint, defendant appeals.</p>

Action by Ellen O’Brien, as administratrix of the estate of Thomas H. O’Brien, against the Central Railroad of New Jersey, for the wrongful killing of plaintiff’s intestate. From a judgment in favor of the defendant, and from an order denying a motion for a new trial, plaintiff' appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Barbara Schwind against Anthony Ibert. From a judgment for defendant, plaintiff appeals.</p>

<p>Injury to Servant—Neqligence of Fellow Servant—Machinery—Duty to Inspect. .</p> <p>. Where an expert other than an ordinary engineer is not needed _ m removing and replacing caps connected with boiler tubes, and making a test as to the safety of the boiler after cleaning it, the master is not liable to a fellow servant of the engineer who was injured by the negligence of the latter in failing to make a proper examination after he had removed the caps and cleaned the boiler.</p>

<p>Appeal from municipal court of city of Hew York.</p> <p>Action by John A. Cook against Max Gross. From a judgment in favor of plaintiff, defendant appeals.</p>

Action on a contract by William D. Odell against Henry Webendorfer. From an order setting aside a verdict of a jury in favor of plaintiff, and granting a new trial, the plaintiff appeals.

<p>1. Criminal Law—Conspiring to Maintain an Action—Continuance.</p> <p>In a prosecution for conspiring falsely to institute and maintain 'an action, it was no ground for continuance that the action was still pending, as judgment therein would not have been admissible in the prosecution.</p> <p>2. Same—Subornation of Perjury—Merger.</p> <p>In a prosecution for conspiring falsely to maintain an action, the fact that defendants were incidentally guilty of subornation of perjury in procuring the verification of a complaint did not operate as a merger of the offense for which defendants were prosecuted.</p> <p>3. Same—Attorney and Client—Witnesses.</p> <p>In a prosecution for conspiring falsely to maintain an action, compelling the attorney for the accused in the civil action to present the original summons and complaint was not error, being no violation of Code Civ. Proc. § 835, making confidential communications privileged; but such evidence was competent, in any event, if made to carry into effect the crime charged.</p> <p>4. Same—Confidential Communications.</p> <p>In a prosecution for conspiring falsely to maintain an action, it was not error to refuse to permit the attorney who was retained in the civil action by the defendant in that action to testify to communications made to him by such defendant after he was retained.</p>

Action by Emily Sickles against Abram Kling. From a judgment of the trial term dismissing plaintiff’s complaint (64 R. Y. Supp. 252), and from an order denying a motion for a new trial, plaintiff appeals.

<p>Mechanics’ Liens—Relinquishment—Agreement—Effect.</p> <p>Defendant, the holder of a mechanic’s lien, and other lienholders, agreed that the owner should pay $500 of a certain amount due on a mortgage loan to the owner to defendant, and the balance to the other lienholders, and that on receiving such payments they would relinquish their liens. Bold, that by accepting the $500 defendant’s status as a lienor ceased, and hence he was not entitled to share in a surplus arising on the subsequent foreclosure of the mortgage.</p>

<p>Appeal from special term.</p> <p>Action by Annie Doyle against the American Wringer Company. From a judgment in plaintiff’s favor, defendant appeals.</p>

Action by Sanford Murray against the city of New York. From a judgment on a verdict rendered by direction of the court, and from an order denying a new trial, defendant appeals; and from an order directing plaintiff to file and serve a copy of a decision, and from an order directing plaintiff’s attorney to receive the defendant’s exception to the decision, plaintiff appeals. Affirmed on defendant’s appeal, and reversed on plaintiff’s appeal.

<p>Mandamus—Municipal Court Justice and Clerk—Duty to Modify Judgment —Statute.</p> <p>Under Consol. Act, § 1386, prescribing that, when a judgment is rendered in a case where the defendant is subject to arrest and imprisonment thereon, it must be so stated' in the judgment, and entered in the docket, and Code Civ. Proc. §? 723, permitting the court to amend any process or other proceeding by correcting a mistake in the n'ame of a party, or a mistake in any other respect, mandamus will not lie to compel a justice and clerk of the municipal court of the city of New York to amend their judgment by stating therein that the defendant was subject to arrest and imprisonment thereon.</p>

<p>Appeal from special term, Dutchess county.</p> <p>Bill by James R. Waite against Milton Aborn. Prom a judgment overruling a demurrer to the complaint, defendant' appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by the Reno Oil Company against Charles V. Culver and others. From an interlocutory judgment of the supreme court (68 N. Y. Supp. 303) overruling a demurrer to the complaint, defendants appeal.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Robert J. Smith against the Lidgerwood Manufacturing Company. From an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal from trial term, Westchester county.</p> <p>Action by George Schwarting against the Van Wie New York Grocery Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Mae Y. Netling against William F. Netting and others for an injunction and the appointment of a receiver. From an order vacating such injunction and denying the motion for a receiver, plaintiff appeals.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Frederick Bill against the New York Expanding Metal Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Tide Lands—Riparian Owners—Destruction op Easement—Compensation.</p> <p>Under the Dongan Charter 1686, § 14, giving the city of New York authority to build on or make use of tide lands, “in any manner or way as it shall seem fit,” except to interfere with navigation, the city can construct a driveway along the tideway in front of the property of a riparian owner without making compensation to him for the destruction of his easement.</p>

<p>1. Executors and Administrators—Trustees—Tenants in Common—Right to Sell Property—Liability for Proceeds.</p> <p>Testator’s will gave defendant an undivided interest in real estate in fee, and an undivided interest to his executors, one of whom was defendant, as trustees to hold in trust for plaintiff, with power to sell the property in carrying out the purpose of the will, and to surrender the trusts created by it. Thereafter the executor surrendered the trusts, and conveyed the undivided interest in the property to plaintiff. Subsequently, defendant and others, as executors and trustees, and himself and wife individually, sold and conveyed the property. Held, that the defendant was personally liable for plaintiff’s share of the proceeds of the sale, since the conveyance to the plaintiff rendered her a tenant in common with defendant, and terminated the right of the latter, as executor, to dispose of the property.</p> <p>2. Same.</p> <p>Where an owner in common wrongfully sells and conveys the entire estate, his co-tenant may ratify the sale, and collect his share of the proceeds from the tenant selling the property.</p>

<p>Appeal from trial term, Nassau county.</p> <p>Action by Albert W. Seaman, as trustee of the estate of Eliza Eagle, deceased, against Gilbert Clarke and another, as executors of the will of David Clarke, deceased. From a judgment dismissing plaintiff’s complaint on the merits, after having previously directed a judgment in plaintiff’s favor, he appeals.</p>

<p>Appeal from municipal court.</p> <p>Action by Fred Noll against the Archer Pancoast Company. From a judgment in favor of the plaintiff, defendant appeals.</p>

<p>Transfer Tax—Beneficiaries.</p> <p>A will provided that the residuary estate should pass to trustees; the income to be paid to testator’s wife for life; after her death, the estate to be divided into equal shares for the surviving children, and the income and so much of the principal as the trustees might think advisable to be paid to each child; on the death of any such child, so much of his share as remained to be paid in the manner designated by the will of such child, or, failing a designation, to his issue, and, if none, then to the survivor or survivors of testator’s children. Held, that the remainders which would pass after the death of the children were not taxable at present, as it could not be determined to whom they would ultimately be transferred.</p>

Action by James Brennan, Jr., by J. W. Boche, his guardian ad litem, against the Metropolitan Street-Railway Company. From a judgment dismissing the complaint, plaintiff appeals.

Action by Lena Anderson against John Caulfield. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Reformation of Deed.</p> <p>Plaintiff offered to sell to defendant certain real estate subject to a mortgage in consideration of a transfer of shares of stock “upon the express condition- that six per cent, at least, or more, dividends be declared from August 1, 1898, on the stock at par value, and continue to be so paid quarterly or semiannually hereafter.” A deed was duly executed and delivered of the property subject to the mortgage. Plaintiff thereafter endeavored to obtain from defendant a written guaranty that the stock would always pay dividends, and, on defendant’s refusal to execute it, sought to reform the deed by inserting a clause that the conveyance was executed on the express condition that the stock would thereafter always pay dividends. There was no claim at the trial that the condition was omitted from the deed by mistake either of law or fact. Held, that the reformation was properly refused.</p>

<p>1. Setting Aside Verdict without Notice—Objection Waived.</p> <p>Where a verdict is set aside, on its rendition, by the court, without motion, because in disregard of the instructions, the error in setting aside the verdict without notice to the adverse party is waived by a failure to object on that ground.</p> <p>2. Same—Disregard of Technical Errors—Statute.</p> <p>Under Code Civ. 'Proc. § 3063, providing that on"an appeal from a justice court the appellate court shall render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits, the appellate court will disregard the error of a justice of the municipal court in setting aside a verdict without stating in th.e order- entered thereon the grounds upon which it was granted, where such verdict was rendered in disregard of the justice’s instructions, and against the weight of the evidence.</p>

<p>'Replevin—Conditional Sales—Evidence.</p> <p>In replevin for a piano, where defendant had pleaded a general denial to the complaint, and had introduced evidence showing that defendant’s wife had possession of the piano three weeks before the conditional sale was executed, it was error to exclude plaintiff’s evidence as to how defendant’s wife had possession before the defendant, since plaintiff was entitled to rebut defendant’s attempt to show title out of the plaintiff without connecting itself with it.</p>

Judicial settlement of the accounts of W. H. Slocum and another, as surviving executors and trustees of Robert F. Austin. From the decree, the executors and others appeal.

<p>1. Insurance—Suit on Policy—Delivery—Proof—Motion to Dismiss.</p> <p>Where the physical delivery of a policy was undisputed, and the company’s agent had authority to deliver policies on his own judgment as to insured’s good health, and insured subsequently paid the premium by check, a motion to dismiss the complaint, in a suit on the policy, on the ground that the evidence was insufficient to go to the jury on the question of delivery, was properly denied.</p> <p>3. Same—Conditions—Health 'at Delivery—Breach—Direction of Verdict.</p> <p>Where a policy provided that it should not be valid unless insured was in sound health on its delivery, and the insuring company’s agent, who was authorized to deliver the policies on his judgment of insured’s good health, delivered a policy to insured, on a public street, who, though he had been to a doctor the day before, was regularly attending to business, a motion to direct a verdict for the company, in a suit on the policy, on the ground of a breach of such condition as to health, was properly denied.</p> <p>3. Same—Submission of Some Issues—Special Verdict.</p> <p>The only issues in a suit on a policy were delivery of the policy, and the good health of the insured at certain stated times. None of the fact* material to the first issue were controverted. The court submitted five questions as to the health of the insured to the jury, and, adopting its findings thereon, rendered judgment for the plaintiff. There was no request to submit any other questions, or that the case be submitted in any other form. There was no agreement that there should be a special verdict. Held, that such judgment was not void, as rendered on a special verdict not covering all the issues of fact litigated.</p> <p>4. Same—Premium — Deferred Payment —Agent’s Authority—Consummation of Contract.</p> <p>Where an agent of an insurance company, who had general power to take applications, deliver policies, and collect premiums, delivered a policy to the insured, and told him that he had 80 days in which to pay the premium, and the insured subsequently delivered his check for the-amount of the premium to the agent, the waiver of a spot-cash payment of the premium was within the agent’s power, and the contract of insurance was consummated, in the absence of fraud.</p> <p>6. Same—Warranty—Health at Certain Time—Breach—Evidence.</p> <p>Where, under the warranty clause in a policy, the insured stated that he was last under a doctor’s care in 1895, and the doctor testified that he had treated the insured in January, 1899, but was not very sure about the matter, and the beneficiary testified that insured came into the house where the doctor was attending the family for la grippe, and was given some medicine for a cold, the finding that there was no breach of warranty was supported by the evidence.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by the J. H. Mohlman Company against Fanny McKane and Minnie E. McKane. Judgment for plaintiff, and defendant Fanny McKane appeals.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Maximilian Lewinson and another against the Montauk Theater Company and others. From a judgment in favor of defendants, plaintiffs appeal.</p>

<p>1. Appeal—Findings op Fact.</p> <p>Where there is evidence to support the findings of fact of the trial court, they will not be reviewed on appeal.</p> <p>3. Brokers—Sale op Property—Commissions.</p> <p>Where a broker introduces to his principal a customer who represents that he is able to comply with the terms and conditions named by the principal, but the customer fails to meet the terms and conditions proposed by the principal, which are within the terms formerly suggested to the broker, the latter is not entitled to compensation.</p>

Action by the people of the state of New York against the Anglo-American Savings & Loan Association of New York and others to-dissolve said association. From an order authorizing the receivers of said association to transfer certain real estate to the Empire State Realty Company, defendant Clarence A. Samson appeals.

<p>1. Husband and Wife—Alienation of Affection—Sufficiency of Evidence.</p> <p>Where plaintiff sued her husband’s father for alienating the affections and enticing away her husband, and the evidence showed that defendant was very angry at the time of the marriage, and declared that he would not allow his son to live with plaintiff, and that plaintiff and her husband never did live together, but there was no proof of any direct act of interference or attempt to persuade plaintiff’s husband not to live with her, there was not sufficient evidence to support a verdict for plaintiff.</p> <p>3. Same—Evidence of Affectionate Relations.</p> <p>In an action by a wife against her husband’s father for damages for alienation of affection, a letter written by the husband to the wife two years after the commencement of the action is not admissible to show the existence of affectionate relations between plaintiff and her husband.</p>

<p>1. Guardian and Ward—Jurisdiction of Supreme Court.</p> <p>The supreme court has general jurisdiction and control over guardians in relation to the care and control of the person and property of wards.</p> <p>8. Same—Necessaries Furnished Ward—Action^-Sufficiency of Complaint.</p> <p>A complaint in an action for necessaries furnished a ward alleged that the goods were furnished at the request of the father of the ward, who was the guardian of his person, on his representation that he would pay therefor from the money received for his support from the guardian of his estate. It was also alleged that the guardian of the estate paid the amount of plaintiff’s claim to the father, who was insolvent, and that the latter appropriated the same, and that the. estate of the ward' was diminishing, and that the guardian refused to pay for the goods. Held not to state a cause of action against the guardian of the estate.</p>

<p>Appeal from special term.</p> <p>Action on a contract by George M. O’Connor against Hugh Green and others. From a judgment in favor of plaintiff, defendants appeal.</p>

Action on a note by Ewald Fleitmann and others against Eugene Tj. Ashley and others. From a judgment in favor of the plaintiffs rendered on a directed verdict, defendants appeal.

Action by Charles Ebling against the Second Avenue Railroad Company. From a judgment dismissing the complaint at the close of the trial, plaintiff appeals.

Action by Mary James, as administratrix of the estate of Charles F. James, against John V. Signell. From an order granting defendant’s motion to open a. default judgment, and allowing him to file an answer on terms, plaintiff appeals.

Action by William Block against the Third Avenue Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

' Action by Marion Adams, by Thomas F. Adams, guardian ad litem,, against the Metropolitan Street-Bail way Company. From a judgment in favor .of plaintiff, and from an order denying a new trial,., defendant appeals.

Action by William Scholle and another against the Metropolitan Elevated Railway Company and another for obstructing plaintiffs’ right to light and air in the use of certain property. From an order directing grantees of the property pendente lite to be made co-plaintiffs, defendants appeal.

<p>Adulterated Food—Health Law—Violation—Evidence.</p> <p>Public Health Law, § 41, forbids the manufacture and sale of adulterated beverages, and the sale of any inferior or cheaper substance in imitation of, or under the name of, another article. Defendant sold a mixture of 48 per cent, sugar, 35 per cent, tartaric acid, 12 per cent; citric acid, and 5 per cent, the oil of lemon as “Eiffel Tower Lemonade.” On the box were pictures of lemons, and each box contained a circular, which stated that 38,000,000 lemons were used last year in manufacturing Eiffel Tower Lemonade, and that it was manufactured by concentrating the lemons in the orchards where they were grown. Defendant testified that the oil of lemon was made from the lemon rind, and that 52,000,000 lemons were used in the last year in manufacturing such lemonade. Tartaric acid is much cheaper than lemon juice. that the evidence was sufficient to sustain a verdict finding defendant guilty of selling an inferior article as lemonade.</p>

<p>Action by John H. Anderson against Katie Herold. From a judgment in defendant’s favor, plaintiff appeals.</p>

<p>Action by Bertha Allbring, as administratrix, against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Nancy E. Bliss against Charles L. Sherrill, impleaded, etc.</p>

Application by Prescott Hall Butler, as committee of John Armstrong Chanler, an incompetent person, for leave to sell real estate. From an order of the special term refusing to compel John C. Livingston, the purchaser, to complete his purchase, and directing petitioner to repay the amount of the down payment, with costs and disbursements, petitioner appeals.

<p>Actions by Anthony Collins and others, as executors, etc., against Emory W. Dunston, impleaded, etc.</p>

<p>Action by Daniel D. Dunkle against Charles A. McAllister.</p>

<p>Action by John S. Gunsaul against Charles W. Grannis and William P. O’Connor.</p>

<p>Action by Gertrude Gordon against the city of Niagara Falls.</p>

<p>Action by Frederick Hoeninghaus and others against James A. Holden and others. From a judgment in favor of plaintiffs, defendants appeal.</p>

<p>In the matter of the petition of Gertrude A. Haight for an order revoking and canceling liquor tax certificate No. 24,354, issued to Warren J. Parsell.</p>

<p>Action by Patrick Haney against Frank W. Knapp, as executor, etc.</p>

<p>Action by the Homestead Co-operative Building & Loan Association against William H. Arnold.</p>

<p>Action by Jacob Kaiser against the British America Assurance Company, Toronto, Canada, impleaded, etc.</p>

<p>In the matter of the voluntary dissolution of Lenox Corporation.</p>

<p>' Action by John McKesson, Jr., and others against Homer E. Crandall.</p>

<p>Action by Henry M. Love against Charles A. Lathrop.</p>

<p>Action by John J. Murray against Frank Pelcyger.</p>

<p>Action by Jacob Marshall and another ■ against Charles M. Friend, as temporary receiver, etc., impleaded, etc.</p>

<p>Proceedings by the people of the state of. New Yo.rk against William E. Tench.</p>

<p>Action by Kitryne G. Paul against Edward M. Paul.</p>

<p>Proceedings by the people of the'state of New York, on the relation of town of Oyster Bay, against Timothy L. Woodruff and others, as commissioners of the land office of the state of New York. .</p>

<p>Proceedings by the people of the state of New York, on the relation of Bradley Martin, against Thomas Feitner and others.</p>

<p>Action by the president, directors, and first company of the Great Western Turnpike Company against Martin L. Shafer.</p>

<p>Action by Laura Read against George Bf. Hobart and others.</p>

<p>Action by Frederick W. Rhinelander against the Farmers’ Loan & Trust Company for failure' to comply with the terms of a mortgage. From a judgment in favor of defendant, plaintiff appeals.</p>

In the matter of the application of Saratoga Traction Company for the appointment of commissioners under section 94 of the railroad law to determine whether such railroad ought to be constructed through Hamilton street in the village of Saratoga Springs, N. Y.

<p>Action by Charles E. Schoepflin against Michael J. Coffey.</p>

<p>In the matter of Willis Avenue. Appeal from an order granting an additional allowance to commissioners.</p>