Volume 7 — New York Appellate Division Reports

<p>Power of sale—improper exercise—bona fide purchaser—notice to, and knowledge of one member of a firm binds the client—exception to the rule that a purchaser from a trustee need not concern himself with the disposition made by the trustee of the purchase price.</p> <p>A testator, after giving certain legacies, left the residue of his property to his executors upon certain trusts, and further provided in his will: “If at any time my executors * * * shall deem it for the best interest of my said estate that any part or parts, or all of my real estate, should be sold, then I authorize and' empower my executors, as such, and the survivors and survivor of them, to sell and dispose of any real estate of which I may die seized or interested in, and any part or parts thereof, upon such terms and in such manner as they shall deem best.” He died the owner of certain real estate on Fifth avenue, Hew York city, and left debts to a considerable amount, but no personal property.</p> <p>The executors'and trustees being pressed for the payment of a judgment entered after, upon a verdict rendered before, the testator’s death, which was not a lien upon the real property left by him, were advised by the holder of the judgment, an attorney at law and the legal adviser of the executors, that the executors could not execute a mortgage, but that the will contained an unlimited and unrestricted power of sale that would enable them to sell the property in just the same way “ as they could if it was sold by a private individual dealing in regard to his own property,” and that a piece of property could be sold and a mortgage be taken back and then assigned, or he “ could get a mortgage direct to the lender of the money asan advance on account of the purchase money.” Pursuant to this advice, the executors conveyed certain real estate left hy their testator to a brother of the judgment creditor, for the expressed consideration of §30,000; and such grantee executed a mortgage to Edwin Booth, for whom the judgment creditor’s firm was acting in this matter, for §16,500, which money Was applied- to the completion of certain houses upon a lot, the legal title to which was held by the judgment creditor without any formal agreement that could be enforced by the estate furnishing the money or which could be of benefit to that estate, and at the same time a second mortgage was given back by such grantee to the trustees for §13,500, being the balance of the purchase price.. This mortgage was not delivered to the trustees directly, but was retained by the judgment creditor or by his firm, was not recorded, and was satisfied subsequently by the trustees under the direction of the judgment creditor or his firm, no money having at any time been paid hy the mortgagor to the trustees, who continued during all these transactions in possession of the mortgaged premises.</p> <p>'Held, that the sale was in violation of the power of sale, which provided that a -sale should be made only in case it should be deemed for the'best interest >of the estate of William Campbell;</p> <p>That, under such circumstances, no title passed to the-grantee from the.executors, and that the property still belonged to the estate of William Campbell;</p> <p>That, as the-firm of which the judgment -creditor was a member were acting for Edwin Booth, and had full knowledge of the transaction, their knowledge must -be considered -to be the -knowledge .of Edwin Booth, and that, -consequently, neither he nor hie executors were protected by -the Recording Act;</p> <p>That while the general rule was settled that a purchaser need not concern himself ■as to the manner in which -an executor or trustee disposed of the purchase -money of the property sold by him as executor or trustee, the rule did not -apply where, the impropriety of the transaction was obvious and was within the knowledge of -the attorneys of the purchaser.</p>

<p>Appeal by John S. Keyes and another, individually and as exec utors, etc., of Antoine Ruppaner, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered. in said Surrogate’s Court on the 18th day of February,. 1896, as awards $250- to Samuel. B. Sewards, Esq., as special guardian for Anna Kristof as his costs of the proceeding.</p>

<p>Appeal by .Herbert S. Barnes and others from that portion of a decree of the Surrogate’s Court-of the county of New York, entered in said Surrogate’s Court on the 18th day of March, 1896, which provides for the payment to Frances M. Barnes of the sum of $408.32, and the sum of $9,372.70, as interest upoh her legacy under, .the will of Joseph C. Barnes, deceased, and also from that portion ■ of said decree which finds the balance remaining in the hands' of the executor of said deceased, and distributable to and among the residuary legatees under said last will, to be the sum of $15.99 for each of said residuary legatees, and also from that portion of said decree which directs the executor .to retain the sum of $2,000, .and expend the same in erecting a headstone or monument to the testator.</p>

<p>Appeal by the plaintiff, Georgie S. Collister, from a -judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rew York on the 13th day of April, 1896, upon the decision of - the court rendered after a trial at the blew York Special Term' sustaining the defendant’s demurrer to the complaint and dismissing said complaint.</p> <p>The facts; as stated in the. complaint, .and admitted by the demurrer, are as follows :- The plaintiff had been for 'many years a member of the family of her uncle, George B. Scranton, who had educated her, maintained her, and brought her up as a member of his family, and continued to do so until his death, which occurred in the month of December, 1888. By the will of said Scranton he nróvided as follows:</p> <p>“• Fourth. I direct my wife, Amelia' A. Scranton, out of the property hereinafter given and bequeathed to her by this will, to use so much thereof for the support and benefit of my niece, Georgie S. Gollister, as my said wife shall from time to time in her discretion think best so to do.</p> <p>“ Fifth. I give and bequeath to my executor and executrix, hereinafter named, the sum of twenty thousand dollars ($20,000), upon trust to invest the same and to pay the net income thereof annually to my wife, Amelia A. Scranton, during her lifetime, but on or after the death of my wife, Amelia A. Scranton, I direct my surviving executor to pay out of the net annual income of said twenty thousand dollars ($20,000) as so invested to my niece, Georgie S. Gollister, if she shall then be unmarried, the annual sum of one thousand dollars ($1,000) in equal quarterly installments of two hundred and fifty dollars ($250), until the marriage of my said niece, Georgie S. Gollister, and if my niece, Georgie S. Gollister, shall never marry, for and during her natural life, but if my said niece Georgie S. Gollister,. shall at the death of my wife, Amelia A. Scranton, be married, then I direct that my said niece, Georgie S. Gollister, shall take nothing under this bequest.</p> <p>“ Sixth. I give and bequeath to my executor and executrix herein-before named the sum of fifty thousand dollars ($50,000), upon trust, to invest the same and to pay the income thereof to my wife, Amelia A. Scranton, annually, until my daughter, Amelia E. Scranton, shall arrive at the age of twenty-eight (28), and then I direct that my executor and executrix transfer to my said daughter, Amelia E. Scranton, the securities representing said fifty thousand dollars ($50,000) so invested.”</p> <p>: “ Eighth. I give, devise and bequeath all the rest, residue and remainder of the estate, both real and personal,, of which I shall'be seized or possessed, or to which I shall be entitled at the time of my death, to my wife, Amelia A. Scranton, absolutely,”</p> <p>The wife, Amelia A. Scranton, is the defendant in this action, she having since the testator’s death intermarried with one John B. Fassitt. She has received from her husband’s estate an amount exceed ing $100,000. The defendant, notwithstanding requests so to do, has refused to make any adequate provision for the support or benefit of the plaintiff. From October 1, 1889, to July, 1893, she contributed to such support the sum of twenty-five dollars per annum, and since that time has made no contribution whatever for that purpose, but has applied the whole of the estate and income received under her husband’s will to her own use, so that the plaintiff has been compelled to 'and' has for a long time supported herself by her own exertions. The plaintiff has never married.</p>

<p>Taxation—method of ascertaining 'the taxable capital of a corporation — return to a writ of certiorari — subways improperly valued at their cost.</p> <p>The action of the commissioners of taxes and assessments must he based upon facts and upon evidence before them, and it must not be capricious, arbitrary or fanciful, and they must state in the return to a writ of certiorari the information or evidence upon which they acted.</p> <p>Where, in reply to a writ of certiorari issued to' review their action, nothing is returned beyond the. statements filed by the party aggrieved, these statements must be regarded as the basis of their action, and as containing the only facts upon which the assessment was -made.</p> <p>Statements which are not denied, or as to which the return is silent, must be regarded as true. «</p> <p>The personal property of every company liable to taxation must be assessed at its actual value, and the value to be ascertained is not that of the capital stock, but is that of the capital itself.</p> <p>To determine the capital thus subject to taxation requires a valuation of all the property of every nature owned by the corporation, whether real or personal, and that from this aggregate there be deducted the assessed value of the real estate, which leaves the capital subject to assessment, after deducting debts and any exemptions allowed by law.</p> <p>The franchises of a corporation are not a part of its taxable capital.</p> <p>Upon, the hearing on the return to a writ oí certiorari'granted to review the action, •of the commissioners of taxes and. assessments in the city and. county of New. York, in assessing the personal property of the, relator for the year 1895, it appeared that the relator was a domestic corporation which had constructed," maintained and operated subways in New York city to hold and contain- electrical wires and conductors. .While the hooks of the commissioners wore open for correction the relator submitted to the commissioners statements which showed a deficiency of taxable assets of over §3,500,000. The commissioners demanded a supplemental statement, and in this the relator stated that the real estate of the company consisted exclusively of its subways, which had cost about §5,433,717.94; that only about' forty per dent of the subways were occupied, and that over sixty per cent yielded no income whatever; that' in laying the subways the relator was governed. by- the hoard of electrical ■ control,, which compelled it to lay the subways where that hoard thought they would best, meet existing and future public requirements; that it was, by law, required to furnish space .gratis for the conductors of the city, which space would otherwise represent an annual income of §14,558.17; that it had never earned nor" declared any dividend, and had defaulted in the interest on its second mortgage bonds.</p> <p>In determining the property of the corporation liable to taxation, the commissioners acted solely on the statement of the relator. 1 They added to the cost of the subways .the miscellaneous assets, amounting to §153,057.60, and from this they deducted the debts, the assessed value of the real estate and the ' amounts invested in the stock of other corporations, taxable upon their capital, and fixed the taxable balance at §939,493,</p> <p>Meld, that although the commissioners had assessed the subways, which was the" only real estate owned by the relator, at a much less sum (§715,000), for the '. purposes of taxation .ns real estate they were not concluded by such assess-^ ments in determining the value of the capital of the corporation;</p> <p>That it was, however, upon the facts, clearly unjust for the commissioners to take the cost of the subways as a safe guide to follow in determining their value, and that their action should be set aside.</p>

<p> Contempt—the right to use onés own name in onds own business cannot be taken away by civil proceedings. </p> <p>Upon an appeal by Oscar A. De Long from an order adjudging him in contempt of court for the violation of an injunction, it appeared that on the 8th day of January, 1895, a decree was entered in an action by which the defendant therein, a corporation known as the De Long Hook and Eye Company, was “enjoined from using, in selling or placing upon the market, in connection with hooks and eyes, the word or name ‘ De Long,’ alone "or with other words, in any manner which might produce deception or confusion in the public mind as to the identity of the goods sold by the plaintiffs and the defendants respectively.’’ This decree was subsequently modified by inserting, "but nothing herein shall operate to prevent the defendant from, manufacturing and selling hooks and eyes put up in a form which shall not violate the trade mark of the plaintiff, or . have the effect to induce the ordinary purchaser to buy its goods, believing them, to be manufactured by the plaintiff.”</p> <p>Oscar A. De Long was an officer of the corporation and practically was its owner, but he was not individually a party to the action, which was brought against th'e corporation alone. After the injunction was granted he resigned from the corporation, and begán a business, in which the corporation had no interest, in his own name, describing his products as “Oscar A. De Long's Hooks.” He carded his hooks in a similar manner to those of the plaintiff, and placed Ms own name upon the cards and upon his letter heads.</p> <p>Held, that he had not violated the decree;</p> <p>That if, while apparently acting in his own name, he had engaged, in the interest of the corporation, in doing the things which the injunction forbade, this would have constituted a violation of the injunction;</p> <p>That, although the corporation had been enjoined' from using in any manner the . name "De Long,” the court would have no power, even if Oscar A. De Long '' had been a party to the action, to enjoin him from using his own name;</p> <p>That his right to conduct business in his own- name, whatever its nature, so that it was lawful, could not be forfeited .by any civil proceeding;</p> <p>That he' had a light to advertise his business in his own name, or to use the same' upon his letter heads, or upon the cards containing his hooks;</p> <p>That the distinction between the use of the name “De Long ” by the corpora- . tion in any way whatever, and the. use of that name by Oscar A. De Long, grew out of the fact that the name De Long was fraudulently assumed by the corporation while it belonged of right to Oscar A. De Long.</p> <p>Patterson, J., dissented.</p>

<p>Agency — an agent is not permitted to matee a profit — tie becomes a trustee for the: principal, of property so received.</p> <p>An agent employed to sell, or engaged as an agent in any other business, is not. permitted to make profits for himself in the transaction, and for all such profits,, he must account to his principal.</p> <p>If he has taken title to property in violation of his trust, equity will treat him as a trustee for his principal. '</p>

<p>Appeal by the plaintiffs, Samuel Golde and another, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the defendants; entered in the office of the clerk of said court on the 1st day of April, 1895, upon the verdiet' of a jury directed by the court after a trial before the court and a jury on the 22d day of March, 1895.</p> <p>This action was brought to recover the amount payable under a policy of insurance issued by the defendant, insuring certain propperty which was also covered by another policy in the same aggregate amount issued by the Hamburg-Bremen Insurance Company.</p>

<p>Appeal by -the defendants, Percival Knauth and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the cleric of the county of New York on the-19th day of October, 1895, upon the report of a referee, and also from "an order entered in said clerk’s office on the 18th day of October, 1895, granting an extra allowance of costs.</p> <p>Also, an appeal by said defendants from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the county "of New York on the 19th. day of Febuary, 1896, denying the defendants’ motion for a new trial.</p>

<p> Trust—a beneficiary cannot sue the Vrustee at 1cm as for money had a/nd received, until an accounting lias .been had ■.—continuing the action against a substituted trustee. </p> <p>The remedy of beneficiaries of a trust against a trustee, where the trust is open and continuing and the accounts of the trustee have not been settled and adjusted and the balance ascertained, is by an action for an accounting in equity; and an action at law, either for money had and received, or in any other form,, can-hot be maintained in the first instance.'</p> <p>Where an action has been brought against the trustee by a third party, the beneficiary of the trust must either become a party to such action and have the amount of his share definitely ascertained therein, or else bring a separate action himself for such relief, before he can maintain an action at law against the trustee for the amount to which he is entitled.</p> <p>Where the original trustee has died and a successor has been substituted in his ' place, and it is not shown that he received the trust money or that lie is under any personal obligation to pay it, the action cannot be continued against him.</p>

<p>Divorce — unless the referee gives costs, the court cannot'— the remedy, where the court improperly does so, is by motion.</p> <p>Where a referee, appointed in an action brought to procure an absolute divorce, fails to award costs to the successful party, the Special Term has no right to insert in the judgment a provision granting such costs.</p> <p>The remedy in such a case is to move to amend the judgment by striking out the provision as to costs. •</p> <p>¡Semble, that the question could not be raised by an.appeal from the judgment.</p>

<p>Appeal by William L. .Ogsbury, a nephew" of William M. Ogsbury, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 13th day of January, 1896, affirming a former order made by said Surrogate’s Court fixing the respective interests of the beneficiaries in the estate of the deceased, and the amount of the tax to be paid thereon under, the legacy and inheritance tax law of the State of New York.</p> <p>On the 5th day of November,. 1885, the deceased executed and delivered to the United States Trust Company of New York city an indenture, wherein, it was recited that the deceased was possessed of the personal property therein described, and desired to be relieved of the management thereof and to secure the benefits of the income thereof as a continual support during his natural life, and to secute the property to his devisees or next of kin as therein mentioned, and wherein, in consideration of seven dollars, and for the purpose therein set forth, he granted, sold and conveyed to the' trust company, and its successors and assignors, personal property therein ■described, consisting of bonds and sto'cks and amounting to about $25,000, upon trust to receive the income and profits thereof, to pay the reasonable charges of the trust company for executing the trust, and to apply the remainder of such income and profits to the use of the deceased during the term of his natural life, and upon his death to assign, transfer and convey the property and such other as the trust company might then hold in lieu thereof, to such person or persons and in such shares or proportions as deceased should, in and by his last wilh and testament or instrument in the nature thereof, name, appoint and direct, “ and, in default of such will or instrument legally made, and so far as the same should not extend, then to such person or persons as shall be entitled thereto as next of Icin of the said William M. Ogsbury under the laws of the State of ISTew York then in force” for the distribution of the estates of persons dying intestate, and wherein the deceased empowered the trust company to sell any of the securities therein described, and reinvest the proceeds thereof in other good and approved securities at any time the- trust company should deem it necessary, proper or to the advantage of the deceased to make such sales and reinvestment; such new investments to include bonds of railroad companies that had not made default in the payment of interest within the eight years last past, secured by mortgage upon completed railroads, and also authorized and empowered the trust company to do any other act which might be necessary and proper for the care, management, protection and preservation of the property described therein or of any such new investments. The trust company united in the indenture, accepting the trust created therein and covenanting to faithfully execute the same.</p> <p>Thereafter, and March 10, 1888, the deceased made a will, wherein, among other things, he directed that the property held by the trust company under the indenture of November 5, 1885, at the time of his death, should be transferred and conveyed by the trust company, $1,000 to each of his three aunts named therein, $1,000 to a Mr. Martin and $2,000 to a Mrs. Youngs, and the balance to his nephew, the appellant herein, to have and hold the same absolutely.</p> <p>Thereafter, and April 19, 1889, the deceased died and his will was admitted to probate.</p> <p>' The appraiser, appointed by the surrogate, decided that the residue of the property, held in trust that went to the appellant, amounted .to $19,491.42. ITe also stated in his report that the executor under ■deceased’s will claimed that the trust property did not belong to deceased, and was not subject to taxation,, but that he had disallowed • the claim, and that the executor offered to prove by parol evidence that the' indenture of November '5, 1885, was not made in contemplation of the death of the grantor, and that he held that the indenture and will were the best evidence of the intent of the grantor and testator and rejected the evidence. There does not appear to be any proof in the papers that the property described in the indenture of November 5, 1885, was actually delivered to the trust company, or that the trust company executed the trust during the:.lifetime of the deceased, or made any transfers of the property, after the death, to the beneficiaries named in the will, except such Inference as may be drawn from the indenture and will themselves.</p> <p>The report of the appraiser was filed and the surrogate made the orders hereinbefore referred to, wherein, among other things, he determined that the property referred to in the indenture was taxable under the laws of the State hereinbefore referred to.</p>

<p>Tendor and purchaser—a title not prejudiced, where a complaint is filed after the lis pendens, if no rights intervene before judgment and sale—a judgment granting relief broader than the prayer of the complaint is irregular, not void—sufficiency cf affidavits for an order to publish the summons—omission of certain defendants’ names from the summons as published, not fatal — costs may be waived where a controversy is submitted without action.</p> <p>The filing of a complaint in an action of foreclosure, two weeks after the filing of the notice of the pendency of the action, does not affect the title acquired by a purchaser at the sale where no right was acquired by any person as against the property, by incumbrance or lien, between the commencement of the action and the decree and the sale under it.</p> <p>Where the prayer of the complaint in an action of foreclosure asks simply that the mortgagor and all persons claiming under him subsequent to the commencement of the action be foreclosed of all claim and right to the premises, ■a judgment of foreclosure and sale in which the relief granted is in the usual form and broader than the prayer of the complaint, is not void, it is merely irregular, and can be amended.</p> <p>Where an affidavit, upon which an order for the publication of the summons is based, is made by the attorney for the plaintiff, who deposes that the defendant in question could not after due diligence be found within the State, and that the attorney had been informed by people who knew the defendant that he had left New York several years before, and had never returned to their knowledge, and there is added to this the affidavit of the sister of the defendant, that he had left New York seven years previously; that she had never heard from him, and that, though she had made diligent inquiry as to his whereabouts, she was unable to get any information concerning him, and that, therefore, she believed he was not a resident of this State, a case is made sufficient to authorize the order of publication.</p> <p>The summons, as published pursuant to the order of publication, contained the name of the defendant on whom service was sought to be made by publication, and that of one other defendant, but did not contain the name of the . remaining defendants in the action.</p> <p>Meld, that there had been a substantial compliance with the requirements of the law;</p> <p>That the object of the publication of the summons was to give notice to the defendant sought to be served by publication that the action was pending against him, and that as in this case he was put upon inquiry by the summons -as published, nothing more than that was necessary.</p> <p>Where a controversy is submitted upon an agreed state of facts the parties may stipulate that costs shall be waived.</p> <p>' Van Brunt, P. J., dissented upon the question of costs, holding that where they are discretionary the discretion of the court cannot be taken away by stipulation.</p>

<p>Motion'by the plaintiff, The Mayor, Aldermen and Commonalty of the city of Mew York, for a new trial on a case containing exceptions, ordered to be heard at the General Term of the Superior Court of the city of New York in the first instance, upon the dismissal of the complaint directed by the court after a trial before the court and a jury in the Superior Court of the city of New York on the 23d day of January, 1895.</p>

<p>Surrogate — he cannot withhold payment of a distributive share until an action is brought to determine whether the owner of the share is liable as a surety upon the bond of a former trustee of the estate.</p> <p>A Surrogate’s Court has no authority, in an accounting made by a trustee before it, to make a decree that the trustee shall continue to hold the share of one of the parties entitled to a distributive share in the trust fund until the liability of such party, as a surety upon the bond of a trustee who preceded in the trust the trustee rendering the account, has been ascertained, with the purpose that when such liability shall be ascertained by an action or proceeding at law the share of such party to that extent shall be treated as an asset of the estate.</p> <p>The provision of section 2743 of the Code of Civil Procedure, requiring the distribution of an estate after the account of a trustee had been judicially settled, is mandatory; and the limitation of this section by section 2812 of the same Code, enacting that where upon the judicial settlement of such an account, a controversy arises respecting the right of a party to his share, this question must be determined, and that, if. it is not determined, the decree must direct that-a sum sufficient to satisfy the claim in controversy be deposited in a court depositary, subject to the surrogate’s order, does not apply to a case where the controversy relates to the liability of the party upon an instrument or obligation not affecting the title to the specific share as such. The controversy must involve a claim to or a lien upon the specific charge as such.</p>

<p> Corporations—when insolvent—what transfers'are made in contemplation of insolvency — suffering a judgment to he taken in a foreign State, designed, to create a pi'eference. </p> <p>In -an action brought by 'the receiver of the Sargent Granite Company to set aside certain transfers of personal property made by it to the defendant Matthew Baird, it appeared that all but five of the 200 shares of the capital stock of the corporation had been issued for property which was transferred to the corporation; that one 0. F. Schramme, who held about 100 shares* or one-half of its capital stock, had loaned §10,000 to the corporation, which had given him therefor a bill of sale of all its property, intended in fact to operate as a chattel mortgage; under these circumstances Schramme entered into negotiations with Matthew Baird, which resulted in an arrangement by which Baird agreed to take the place of Schramme, and to take an assignment of his stock and of the indebtedness to him of the corporation which was not at this time insolvent. Frank D. Sargent, who was the president of the corporation, agreed to this arrangement, Matthew Baird agreeing to make advances to the corporation provided that all of the products of the company should be consigned to him, and that the proceeds of their sale should be collected by him.</p> <p>As soon as Baird had become a stockholder in the corporation he was-elected -a trustee and also secretary and treasurer; he received and kept all its moneys in .a bank account in his own name. He was a contractor having large use. for granite. During a period of twenty months Baird made advances to the company which brought it in his debt to more than §100,000, but no bills of sale were given to him as security for these'advances. Some twenty months after Baird became a stockholder he became alarmed as to the financial, condition of the company, and requested its president, Frank T. Sargent, to execute to him a bill of sale of its property to be held by him as security for his claim, and this was done; just before the execution of 'this bill of sale Matthew Baird resigned as secretary and treasurer and trustee of the corporation, and about two weeks later he transferred all his stock in the corporation, without any consideration, to certain persons occupying confidential relations towards him, the transferees understanding that they had no absolute interest in the stock, but were, simply acting in the interest of Baird, he agreeing that they might have whatever was left of it after Baird had. been paid his claims against the company. About a month later the trustees by a resolution transferred to Baird their lease of a granite quarry, and still later authorized the president to- execute a bill of sale covering all stone manufactured and unmanufactured and not already covered by the previous bill of sale. The stockholders also confirmed the first bill of sale. Subsequently Baird obtained possession of the granite quarry which had been leased to the corporation, the old lease being surrendered by the corporation and a new' one made by the lessors to Baird.</p> <p>Thereafter he began an action in. the State of Maine against the corporation to recover his advances. An attachment was issued, service of process being made in the State of Maine on an officer of the corporation, who had gone to that State at the instance of Baird for the purpose of being served. Judgment was recovered in the action; the property was sold, subject to some attachment liens, amounting to $20,000, to Baird’s son, but in his interest, for §2,000, "which appeared to be a very inadequate price. During the period of all these transfers the company wijs insolvent, and. known to be so by its officers.</p> <p>The corporation was in debt for rent, merchandise and wages, and was generally unable to pay its obligations when they became due in the regular course of business.</p> <p>Held, that the corporation was insolvent within the meaning of the Stock Corporation Law (§ 48, chap. 564 of 1890), providing that “no officer, director or stockholder thereof shall make any transfer or assignment of its property, or of any stock therein, to any person in contemplation of its insolvency; and. every such transfer or assignment to such officer, director or other person, or in trust for them or for their benefit, shall be void; ”</p> <p>That the transfers to Baird were void under'that law;</p> <p>That the judgment suffered by the corporation, in the action brought against it by Baird, was void as a preference under the Stock Corporation Law, as amended by chapter 688 of the Laws of 1892.</p>

<p>Pan'tnership—stipulation for a formal agreement to sell an interest in a partnership— when the details are •not sufficiently agreed upon.</p> <p>A stipulation to reduce a valid contract to a more formal one does not, where the minds of the parties have fully met, affect its validity.</p> <p>An agreement for the purchase of an interest in a firm, including the good will, etc., by the payment of §3,500 and of an amount equal to one-half of the good accounts and bills receivable of the firm (less th e-firm debts), deducting ten per cent discount, provided that the accounts of the parties were to be adjusted, and if either had overdrawn the difference was to be adjusted; that formal papers of the dissolution of the partnership should be prepared and executed, and annexed to such formal agreement should be a schedule showing the indebtedness of the firm, and also showing the bills and accounts receivable up to date, and that upon the delivery of this formal agreement the consideration should be paid.</p> <p>On the day fixed' for executing the formal agreement the parties could not- agree as to what accounts were good, or as to the adjustment of their individual accounts and as to the amount of the consideration to be paid.</p> <p>Held, that the minds of the parties had not met upon all the terms of the agreement, and" that it could not be enforced.</p>

Appeal by the relatórs, The Commissioners of Public Charities and Correction, from an order of the Court of General Sessions of the Peace for the city and county of New York, entered in .the office of the clerk of said court on the 24tli day of June, 1895, reversing, vacating and setting aside an order and judgment of the Court of Special Sessions, which confirmed an order made by a police justice of the city of New York, adjudging the defendant to be a disorderly person.

<p>fraudulent contract. — the aggrieved party seehing to rescind must move promptly.</p> <p>The right to rescind a contract for fraud must be exercised immediately upon the discovery of the fraud, and delay in doing so will be deemed an election to-affirm the contract.</p> <p>Where a party, upon discovering' that a fraud has been perpetrated in a contract made with her, lies by and speculates as to whether it is -better to disaffirm the contract or to allow it to stand, she cannot be permitted to rescind after -the course of events has demonstrated that disaffirmance is the better policy.</p> <p>In April, 1894, a party to a contract learned that a fraud had been perpetrated upon her the preceding January in the making of the contract. She, however, permitted an assignee for the benefit of the creditors of the other contracting party, who was endeavoring to sell the assigned property, which included property transferred by her under the fraudulent contract, to sell the same. In June, • on inquiring as to the prospects of obtaining a dividend under the assignment, she discovered that she could secure more money by a disaffirmance of the contract, and, on the tenth day of July, she attempted to rescind it.</p> <p>Held, that because of her laches, in seeking it she was not entitled to- the relief asked for.</p>

Appeal by the defendant, The Third Avenue Railroad Company,, from an order of the Supreme Court, made at a Trial Term thereof,, and entered in the office of the clerk of the county of New York on the 19th day of February, 1896, setting aside the verdict of a jury rendered in the action and granting a new trial.

Appeal by the plaintiff, Margaret Burke, from a judgment of' the Supreme Court in favor of the defendant, entered in the office of the clerk of the coimty of Hew York on the 21st day Of May, 1S96, upon the dismissal of the complaint, directed by the court, after a trial before the court and a jury.

Appeal by the defendant,, D. Edgar Anthony, from an order of the Supreme Court, made at the New York Special Term and entered in the office- of the clerk of the county of New York on the 31st day of March, 1896, adjudging him to be in contempt of court, and also from- a commitment issued thereon.

<p>Costs — taxation — only papers used before the clerk can be considered upon a review of his decision — d/rcming interrogatories — term fee, where the suit is discontinued at that term.</p> <p>Only those papers which were used before the clerk upon a taxation of costs can be considered upon a motion tp correct his decision.</p> <p>Under section 8251 of the Code of Civil Procedure a party is entitled to ten dollars for drawing interrogatories, although they may never have been served.</p> <p>Where a case is discontinued at the first term at which the case has been upon the calendar, upon the payment of taxable costs, no term fee is taxable.</p>

<p> Examination of the defendant to enable the plaintiff to prepare the complaint—when denied. </p> <p>An affidavit used upon an application by the plaintiff,- in an'action brought to recover for the conversion of goods, for the examination of the president of a. corporate defendant, in order to enable the plaintiff to prepare his complaint, stated that, the defendant, in violation of its duty, had sold the goods, made fraudulent returns and converted to its own use about $1,500 of the proceeds.</p> <p>Meld, that the affidavit in itself, contained all the allegations necessary to an-action for conversion, and that the application should not be granted.</p>

<p> Police board of New Yorkcity—removalby, of a member of the foi’ce upon testimony taken before their predecesso7’s,in office. </p> <p>Where the testimony, upon which the police commissioners of the city of New York acted in dismissing a member of the force, was taken before á single police commissioner, whose term of office expired, and whose associates on .the police board were removed before such testimony was acted upon by théii successors, such dismissal cannot be sustained.</p>

<p>Cross-appeals by the plaintiff and defendant in the. above-entitled action, 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 30th day of January, 1896, upon the verdict of a jury rendered by direction of the court after a trial before the court and a jury.</p> <p>The defendant appealed from the whole of said judgment, and the plaintiff appealed from so much of the judgment as limits its recovery to the sum of $23,881.01 only.</p> <p>This is an action to recover money paid for taxes for the years 1886, 1887 and 1888, imposed on stock in banks organized under the laws of the United States and of this State and located in the city of Hew York, owned by the plaintiff, a Connecticut insurance corporation, which during those years carried on the business of fire and marine insurance in the State of Hew York. The complaint, in brief, alleges that the taxes were illegal and void, and that the city collected such taxes from the respective banks' whose stock was owned by the plaintiff; that such collections were without the plaintiff’s knowledge or consent, and were wrongfully deducted from funds in the possession of the banks belonging to plaintiff, against its will, and that the defendant now holds such money to the use of the plaintiff. In addition to the denials, the" answer alleges that the plaintiff neglected to take any steps' to review, correct or vacate any' of- the assessments, or to stay or prevent the collection of any of the taxes based thereon; that the taxes were paid voluntarily, without force or duress,, and that if paid under any mistake, it was a mistake of law and not of fact. The defense is a denial of illegality and a plea of voluntary payment upon a claim of right, without mistake of fact.</p> <p>It was proved on the trial that the taxes were paid by the respective hanks with their own cheeks, the taxes of all' stockholders, including the plaintiff’s, in each year, being.paid in gross by a single.. check. To those stockholders who 'had sworn- off their taxes, so that, their names did not appear in-the .assessment rolls in the hands of the receiver of taxes,.the banks’ were accustomed to pay, in' addition to the regular .semi-annual dividends, a further sum equal to the amount of taxes that would have been imposed if the assessments- had not been canceled: The stockholders whose names did, appear iii the receiver’s books were always paid the regular semiannual dividends without deduction for taxes, or, as the banks expressed it, “ free of tax ; ” hut such stockholders never received the tax rebate paid to the stockholders who had secured the cancellation of their assessments. ’</p> <p>The manner of collecting these taxes, as shown, was. for the, tax , officers to send to. each bank a tax hill showing the gross amount of taxes standing on the hooks of the receiver against the stockholders,, and the cashier of the bank would send a cheek for the- full amount, less the rebate referred to. Sometiraés the hanks asked for the bilk and sometimes it was sent without request.. This practice had been continued for some years prior to 1886, and was followed in connection with the payment, of the taxes in dispute. The president of the plaintiff, who was its assistant secretary at the .time of tírele vy and payment-of these taxes, and the confidential assistant of the their president of the company, who had such matters, in charge, testified that .he had no knowledge of the imposition or payment of the taxes at the time, and that iro officer of the corporation had kirowledge of them, so far as he knew ; though it is admitted that notices-were received from, certain of the hanks, notifying, the plaintiff that the commissioners of. taxes would impose an- assessment oil the stockholders. of hanks, and advising the plaintiff of its right to reduce assessments by the deduction of debts, to be. attended to in person at the, tax commissioners’ office.- And, in .addition, other hanks sent communications to plaintiff accompanying pay-inept of dividends, specifying that such dividends were “ free oE tax.” In- April of each of the years 1887 and 1888, the plaintiff addressed a communication to .the tax commissioners, claiming exemption f-roin -taxation upon its shares of bank stock under chapter 679'of the-Laws of 1886.</p> <p>At the close of the testimony each party moved for the direction of a verdict, and the court sustained the contention of the defendant as to the tax for the year 1886, and the contention of the plaintiff for the full amount of the taxes in each of the years 1881 and 1888, •with interest, and from the judgment entered upon such direction both parties appeal.</p>

Appeal by the plaintiff, Susanna Lynch, as administratrix, etc., of Patrick J. Lynch, deceased, 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 16th day of March, 1896, striking out certain portions of the amended complaint as irrelevant.

Appeal by the defendant, Greorge R. Blanchard, 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 18th day of March, 1896, upon the'verdict of a jury rendered by direction of the court. ■ ' The action was brought against Greorge R, Blanchard, Rush W. Bissell and Eaton N. Frisbie, as Co-partners, composing the firm of Frisbie, Bissell & Co., for. a co-partnership liability, and the two latter…

<p>Appeal by' the defendant, Tarrant ■& Co., 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 December, 1895, upon the verdict óf a jury rendered by direction of the ■court after a trial at the .New York Circuit, ■ -</p> <p>The action ivas brought to.recover for goods sold and .delivered, and the defense' was payment in full by means of two checks. Upon the trial it appeared, on the question of payment, that on July 12, 1893, one Cook, who was a salesman in plaintiff’s employ, came to the defendant’s place of business and, presenting a statement of the amount due, asked the defendant’s cashier to pay the account, and that, thereupon, the latter gave Cook a check to the order of the plaintiff for the same. This check was regularly indorsed by the plaintiff for deposit and placed .in bank and was drily paid, and concerning this check there is no dispute.</p> <p>Thereafter, and on July 20, 1893, Cook again came to the defendant and for another bill obtained another check. He receipted the bill, and defendant did not see the check again until it came back from the bank the following month as paid, and indorsed “Win. Allen & Company. H. M. Cook.” On August 9, 1893, a similar transaction took place, Cook receiving in payment of a bill due the plaintiff a check from the defendant. On the afternoon of the day upon which this last check was delivered, Cook returned and stated to the defendant’s cashier that it would be an accommodation to the plaintiff and to himself if the defendant would cash the check for him. The cashier thereupon went with Cook to the Irving Bank and introduced him to the paying teller, who, after asking whether the indorsement was that of the plaintiff and receiving an affirmative answer, gave him the money.</p> <p>On August 18,1893, plaintiff made a charge against Cook in the Tombs Police Court of grand larceny of money represented by one of the checks, and in his affidavit swore-that Cook had stolen from him the following property: “ $185.12 good and lawful money of the United States, property of William Allen & Company, qf which: firm deponent is a member. * * * Deponent. is informed by George C. Hopkins that on said day he, as clerk for Tarrant & Company, paid the annexed cheek to the said Harry M. Cook for the account of William Allen & Company; as deponent never received, said check nor the money thereon, and as the same has been passed through the bank ¿n which it was drawn and the money paid thereon, and as deponent identifies the indorsement Harry M. Cook on the back of said check to be the handwriting of Harry M. Cook, and the said Harry PI. Cook has kept away from deponent and left, his place of business, deponent charges him, Harry M. Cook, with grand larceny.”</p> <p>The defendant proved that the checks were paid at its bank, and that no claim was made iqpón it until two years after the transaction, and then rested. The plaintiff took the stand and testified to the amount of interest due upon his demand, and that the same had not been paid, and rested, and asked the court for a direction of a verdict in his favor. The defendant asked to go to the jury upon the question of Cook’s authority to receive'the checks inpayment and upon all the evidence in the casé. The court denied the defendant’s motion and granted that of the plaintiff, to which an exception was taken.</p>

<p>Appeal by the defendants, Charles W. Dickel 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 24th. day of February, 1896, upon the verdict of a jury, and also from an order .entered in said clerk’s office on the 4th .day of March, 1896, denying, the defendants’ motion for a new trial made upon'the minutes.</p> <p>The action is to recover damages for personal injuries suffered by plaintiff through the alleged negligence of the defendants. The defendants were, co-partners, conducting a riding school and letting horses for hire,' and at' the time the injuries were' received the plaintiff was a pupil of the defendants and had taken sufficient lessons in horseback riding so that he “ felt perfectly able to go out with a well-trained horse.” In company with a Mr. Stockholm on July 3, 1892, plaintiff went to defendants’ riding academy and ordered horses to be saddled and equipped, which were brought, and they started on a ride through Central Park. Plaintiff’s horse was a good one, spirited and well trained, and the plaintiff liked him. He had ridden him before.</p> <p>While in the park Mr. Stockholm noticed that plaintiff’s saddle was giving way or seemed to be moving from position, and suggested to plaintiff that they get a mounted policeman who was in sight to fix it. Plaintiff dismounted and the policeman, at plaintiffs request, tried to adjust the girths of the saddle. He testified that he found the straps in poor condition. There were two girths with three straps on the saddle; one girth had two buckles; the second, one buckle. On one strap the tongue of the buckle was short and Would not hold; another strap was split from hole to hole, so that there was but one buckle that held anything at all. The policeman called plaintiff’s attention to that condition, and remarked that it was an outrage to allow anything like that to go out. He tightened the girths as well as he could, and told the plaintiff that was the best he could do and that he guessed it would hold. The plaintiff and Mr. Stockholm then proceeded on their ride, going through the park and on up to Claremont, where they stopped about half an hour, giving their horses to the attendants there, and then started back.</p> <p>On remounting at Claremont plaintiff did not examine the girths 'of his saddle, nor did he ascertain whether the girths had been loosened while the horses had been in the stable. While going down Riverside drive at a gallop, the road at this point being a little down grade, the plaintiff felt the saddle suddenly slip and turn, and he went off and struck on his head, and was painfully injured. Hp to that time no inclination of the saddle to slip had been'noticed since leaving Claremont! The horse was caught by a boy, and a policeman put the saddle back on the horse, and the boy rode the horse with the saddle to defendants’ stable. Mr. Stockholm testified that this policeman called his attention to the fact that the leather strap was rotten, and that he (the witness) observed that the huckle tongue had gouged the .leather- out and drawn by for three or four holes, slipping from hole to hole. .The-man haw ing charge of the defendants’ saddles was examined, and he produced a- saddle in good condition, without any tears in. any of' the straps between the different holes, which .he testified was the same saddle that was on the horse when lie came into the stable after the accident.. .</p> <p>The plaintiff paid out-$375 for doctors’ bills, trained nurses,.etc., ■ and the jury brought in a verdict against the defendants in the sum of $400. A motion for a new trial was made and denied, and from the order denying the motion and from the judgment entered upon the verdict the defendants appeal.</p>

Certiorari issued out of the Supreme Court and attested ou the 31st day of December, 1895, directed to Theodore Roosevelt and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the dismissal of the relator from the police force of the city of New York.

, Cebtiobabi issued out of the: Supreme Court and attestéd on the 13th day of February,. 1896, directed to'Robert J. Wright, commissioner of corrections of the city and county of New York, command- • ing him to certify and return to the office of the clerk of the county of New York all and singular his proceedings relating to the removal of the relator from his office of warden of the city prison of the city of New York. The charges and specifications were as follows: ■ “1.

<p>Foreign attachment, securing a preference to the attaching creditor — it is not hostile to a general assignment — the creditor must, however., yield his preference if M wishes to sha/re in the assets of the debtor in the State of New York.</p> <p>A creditor of a New York firm, notified of its failure, but not of its having made an assignment, attached property of the firm in an action brought in the State of Tennessee, where it was held, notwithstanding the objection of the assignee, that the creditor had secured á priority over the assignee because the creditor had attached the fund in Tennessee before the assignment had been registered there and without actual notice of the assignment, and the fund was then paid to the creditor. The creditor subsequently presented its claim to the assignee in the State of New York, crediting the amount received, under its attachment in Tennessee upon its total claim and insisting that the balance was a lawful claim against the assigned estate.</p> <p>Held, that the attachment proceedings did not constitute an attack upon the assignment, which estopped the creditor from making a claim against the assigned estate;</p> <p>That the property attached in Tennessee was a part of the assigned estate and passed" to the assignee, both under our laws and (subject to the rights of the attaching creditor) under those of Tennessee also;</p> <p>That the creditor having, however, obtained a preference, it was not equitable that it should share equally with the other creditors in what was'left, but that it was entitled only to an equal share of the entire estate, as that would have been but for its assertion of its rights under the laws of the State of Tennessee.</p>

<p>■ Appeal by Henry Wagner 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 7th day of February,. 1896, denying his motion for a peremptory writ of mandamus, directing the respondent to reinstate him in the position in the department of public works from which he had been dismissed.</p>

<p>Appeal by George 0. Waring, Jr., commissioner of the department of street cleaning of the city of New York, from a final 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 20th day of May, 1896, directing that a peremptory writ of mandamus issue directing him to reinstate the relator in the position of engineer of stable “ A ” in the street cleaning department, which order was granted on the decision of a referee appointed to hear and determine issues of fact raised by the return to an alternative writ of mandamus, and also from the decision of said referee. •</p>

Appeal by the defendants, James F. A. Clark and others, from a judgment of the Court of Common Pleas for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said county on the 8th day of April, 1895, upon the verdict of a jury, and also from an order entered in said, clerk’s'office on the 6fh day of May, 1895, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Josef Schanda, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 19th day of February, 1896, upon the dismissal of the complaint directed by the court after a trial before the court and a jury.</p> <p>The action was brought to recover damages for injuries to plaintiff, alleged to have been caused by the negligence of the defendant.</p> <p>The defendant was the owner of a flat or tenement house No. 222 East Fifty-sixth street, in New York city. At the time of the accident plaintiff was, and had been for about four years, a tenant of defendant from month to month, and as such occupied the front portion of the westerly half of the first floor of the house as a dwelling, and in the front room carried on his business as a merchant tailor. March 22, 1894, while plaintiff was working at his table in the front room, apiece of plastering, upon the ceiling of the room fell' down upon him causing the injuries, to recover damages for which this action was brought., The ceiling in this room was bad in 1892, and pieces commenced hanging down ; water had come down upon it and loosened it. Plaintiff called the attention of defendant’s agent to it, and asked to have it repaired, as it was.dangerous. By direction of the agent, plaintiff moved in a back room, and two men came and fixed the ceiling, took some of it down, put up new, and papered the ceiling over. It did not appear whether the plastering that fell in 1894 was that which was put on in 1892, or some part of the old plastering. ' •</p> <p>At the close of the plaintiff’s evidence the defendant moved for a -dismissal of the complaint because of want of proof of negligence on the part of the defendant, and the court granted the motion, and the plaintiff excepted.</p> <p>Judgment was entered upon the decision and this.appeal is taken therefrom. .</p>

<p>Appeal by the plaintiffs, Herman Scliiffer and another, from a. judgment of the Supreme Court, in favor of the defendants,, entered in the office of the clerk of the county of Hew York on 19th day of May, 1896, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint: upon the merits.</p> <p>The action was brought to compel the specific performance of. contracts....</p> <p>May 18, 1888, the plaintiffs and the defendants’ testator entered into a co-partnership under a written agreement,. a copy of which is annexed to the complaint, and known as Schedule “ A.” The firm name was Pelgram & Meyer, and the business to be carried on was the manufacture and sale of silk goods, ribbons and similar merchandise. The term of the co-partnership was five years, commencing June 1, 1888. The defendants’ testator contributed as capital to the common stock, so called, $175,000, and the plaintiffs contributed a like sum. The defendants’ testator also conveyed to the co-partnership the real property formerly owned by himself or by the firm of Pelgram & Meyer, at the agreed valuation of $181,047.34; the machinery, fixtures and appliances and leasehold interest, at the agreed valuation of $315,000; the raw material, stock on hand and manufactured goods, the value to be ascertained by inventory at actual cost; and also all other assets on hand, cash, book accounts, etc.</p> <p>The conveyance of the property was subject to existing indebtedness by mortgage or otherwise. The amount of the net value of such property and assets, over and above all the indebtedness, was to be ascertained June 1, 1888, and to be considered as surplus capital contributed by defendants’ testator. The parties were to be equal partners, the plaintiffs having one-half interest, and the defendants’ testator one-half, and they were to receive six per cent interest on the amount of common and surplus capital contributed by them respectively, to be charged as an expense of the business. It was further agreed that when Aubrey E. Meyer, a son of the defendants’ testator, became twenty-one years of age he should be admitted as a partner in the business, with such interest as his father should give him out of the capital contributed by the father to the co-partnership ; that the son should have a salary of $1,500 per year, to be charged to expense account; and that in case the defendants’ testator died before the son Aubrey became a member of the firm, the son should have the same rights in the firm as though he had been a member, and had become at his father’s death a surviving partner.</p> <p>There were other provisions of the agreement which it is unnecessary to refer to here, and then, by subdivision 14, it was provided in brief that if any of the parties should require the co-partnership to terminate at the end of five years, they should, not less than six months before the expiration of the five years,' serve upon all the parties a notice in writing subscribed by them, to that effect, and if nó such notice should be served the term should be continued for another five years,, and if no notice should be served at the end of the ten years, the term should be again continued for .'another five years — and by subdivision 15 it was providéd in brief that if any of the parties should die before the termination of the co-partnership as created or extended, and the representatives of the deceased partner should elect to terminate the co-partnership as provided in the agreement, the surviving-partners should have the right to purchase all the interest of the deceased partner in the property and business, at' a valuation shown by the books, deducting twenty-five per cent upon the values of machinery, arid should pay for the same'in yearly installments of $50,000, with interest on the unpaid balance at four and a half per cent, and secure such payment by a. mortgage on the property.</p> <p>After the commencement of the co-partnérship, and on August 24, 1888, the defendants’ testator died,' leaving a will, wherein he appointed defendants his execiitors, and they qualified and have since acted as such. • The business was- continued until the end of the first five years. After the death of the defendants’ testator, his son Aubrey asserted his right to become' a member of the firm under Agreement “ A.” Differences arose between him and the plaintiffs and the defendants other than Aubrey E. Meyer as to their respective rights. Litigation resulted, and finally, on June 30, 1890, an agreement was entered into, a copy of which is annexed to the complaint, and is known as Schedule B.” By this agreement it was provided that the plaintiffs should be regarded as the sole surviving partners of the firm, and Aubrey/ the son of defendants’ testator, relinquished all his right to be a surviving partner, and to any interest in the firm as a partner; and it was agreed that the plaintiffs should continue the business aS sole surviving partners Until the .end of the term, and that the plaintiffs should pay the son Aubrey every year after July 1, 1889, during the term of the co-partnership, the sum of $3,000 in installments .of $1,500 each, payable January and July, so long as he lived; under certain conditions; that the son Aubrey might enter into the same kind of business, but should not use the firm name of Pelgram & Meyer during the term of this co-partnership, except that he should have the sole right to the use of such firm name after May 31, 1893, the end of the first five years, in case he should commence business and use such firm name within nine months thereafter, and should give six months’ notice of his intention to use such firm name. There were other provisions in this agreement which it is not necessary to refer to here. November 28, 1892, the defendants, pursuant to subdivision 14 of Agreement “ A,” gave notice in writing to the plaintiffs that they intended to terminate the co-partnership at the end of the first five years.</p> <p>May 29, 1893, the plaintiffs gave notice to the defendants in writing that they would purchase the rights of the defendants’ testator in the business and property, pursuant to subdivision 15 of Agreement “A.”</p> <p>The defendants seem to have acquiesced in the right to so purchase, and thereupon the parties proceeded to ascertain the amount to be paid for such interest. An inventory was made, but there was. disagreement as to whether the amount arrived at, as the sum to be paid by the plaintiffs, was correct, and as to other details in perfecting the sale and. securing the purchase money. Negotiations were then entered upon between the plaintiffs and some of the defendants as to an agreement for the settlement of their differences, and such negotiations were continued for some time.</p> <p>An agreement in writing was finally formulated, a copy of which is annexed to the complaint, and is known as Schedule “ 0.” This written agreement bears date in January, 1894. It was never signed by defendant Ida Meyer, or defendant Aubrey E. Meyer. It was signed by defendants Lauterbach and Lowenstein, who were satisfied with its terms, but it was never delivered at all by any of the defendants. The plaintiffs alleged in their complaint that the agreement was made about March 21, 1894. The defendants denied that it was ever made, executed or delivered at all, or that it ever became a binding agreement upon the defendants. The plaintiffs sought to compel specific performance of this agreement, or a parol agreement to the same effect, or that defendants be compelled to carry out the provisions of subdivision 15 of the original Agreement “ A.” The defendants alleged their willingness at all times to carry out the terms of subdivision 15 of tlie original Agreement “ A,” but that the plaintiffs had entirely failed to comply with süch terms themselves.</p> <p>The court held that the Agreement “ C ” was never made, executed or delivered, and . that no agreement by parol to the effect therein stated .was entered into between the parties, and the same,, therefore, could not be.ordered to be specifically performed.</p> <p>- The court held that there was but . one cause of action alleged, and that was one to compel specific performance of an agreement, the provisions of which were contained in Agreement “ C; ” and that no relief could be afforded based upon the provisions of subdivision 15 of Agreement “ A,” the plaintiffs failing as to Agreement “ C.”</p> <p>The court dismissed the complaint upon the merits, with costs, and from the judgment' entered upon such decision this appeal is taken.</p>

- Appeal by the .-plaintiff, Bernai’d Wilson, from a judgment of the Supreme Court in favor of the defendant for nine dollars and fifty-one cents, entered in the office of the cleric of the county of New York on the 3d day of February, 1896, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order made at the New York Specials.

Appeal by the defendant, The Union Bailway 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 19th day of January, 1895, Upon the verdict of a jury, and also from an order entered in said clerk’s office on the. 19th day. of January, 1895, denying the defendant’s motion, for a new trial made upon the minutes; .

Appeal by the defendant, Clarence H. Tenner, 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 November, 1894, upon the report of a referee appointed to hear, try and determine the action.

Appeal by the defendant, George E. Waring, Jr., commissioner of street cleaning of the city of New York, 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 8th day of April, 1896, granting a peremptory writ of mandamus requiring-Mm to reinstate the relator in the position of district superintendent in the department of street cleaning in the city of New York.

<p>Appeal by the plaintiff, Victor Steiner, 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 6th day of February, 1896, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the .complaint upon the merits.</p> <p>The action was brought to compel the specific performance of a written contract for a lease of real property. The complaint alleged a written contract for a lease of the ground floor and basement of a building for the term of three years. No such contract was proved on the trial. The only writing given in evidence was a receipt signed by the defendant for twenty-five dollars paid by plaintiff ■“ as a deposit on account for store * * * said amount to be credited to May rent. Said rent to be seventy dollars per month in advance from May 1, 1895.” No term was specified, nor was any agreement to give a written lease mentioned. Both parties gave parol evidence as to what took place with reference to the leasing of the property, what the term was to be, and whether an additional floor of the building was finally agreed to be included in the property to be leased. Plaintiff took possession of the two floors and basement and occupied them. A lease of the whole for the term of three years was made out and sent by the defendant to plaintiff with the request that he execute and return the duplicate. Plaintiff refused to accept such lease, or to sign and return the duplicate, and the lease was finally returned to the defendant. The plaintiff claimed he should have a lease of the ground floor and basement alone for three years, and that he was to lease the other floor for no particular term. The defendant claimed the plaintiff was to lease the whole together for the three years. It was not claimed that this agreement was perfected at the time the receipt for the twenty-five dollars was given, but that no term was then agreed upon as to the store, and that by an agreement entered into after that the basement and first and second floors were to be leased together for three years. The court denied the plaintiff the relief asked for.</p>

<p>Appeal by the defendant, Stilson Hutchins, 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 22d day of May, 1896, directing a compulsory reference to hear, try and determine the action.</p> <p>The pleadings were not before the court when the order was made. The only paper upon which the order was based was an affidavit, made by one of the plaintiffs, wherein it was stated that the action was brought to recover $8,375.56 and interest; that such indebtedness arose by and between the plaintiffs and the defendant by reason of the defendant employing the plaintiffs as brokers, and because of the purchase and sale by the plaintiffs on account of the defendant, and at his request, of stocks, grains and cotton; that issue had been joined by the service of the defendant’s answer,, setting up a denial of the plaintiffs’ cause of action, and alleging and setting forth a counterclaim for $6,413.56, and that the trial of the issue would require the examination of a long account on the side of the plaintiffs, or both parties, consisting on the side of the plaintiffs of about ninety-four items of charges of various .dates and extending over a period from January 8 to August 8, 1895.- There were no opposing papers, but the defendant objected to the order.</p> <p>In addition to the usual provisions in an order of reference, the order also provided that the hearing might be brought on upon two days’ written notice, that the referee should proceed from day to day,.' unless, for good cause shown, he should in his discretion grant an adjournment, and that if an accounting was necessary the referee should proceed to take and state the same, and might compel the production of the necessary books and papers as fully as the court might dó and award final judgment to be entered, and that the defendant pay the plaintiffs ten dollars costs of motion.</p>

<p>Appeal by the plaintiff, Sarah Emily Smith, as administratrix, etc., of Thomas Smith, deceased, from a judgment of the Court of Common Pleas for the city and county of .New York in favor of the defendant, entered in the office of the clerk of said court on the 10th day of December, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury.</p> <p>The action was brought to recover the damages resulting from the death of the plaintiffs intestate, alleged to have been caused by the negligence of the defendant.</p> <p>At the time of the accident resulting in the death the defendant was operating a street railway by cable along and through Broadway, in New York city, and the deceased was engaged in driving a United States mail wagon. The accident occurred at the junction •of Broadway and Bleecker street, about nine-fifty o’clock on the night of December 80, 1894, and the death resulted January 2, 1895.</p> <p>The evidence given in the case tended to show the following facts relating to the negligence of the defendant and the absence of contributory negligence on the part of the deceased: The night was clear, and there was an electric street light at the junction of the two streets, so that the gripman and the deceased could see as well as though it had been daylight. The route deceased was driving over, before the accident, took him through Houston street to Broadway, up Broadway to Bleecker street, and through Bleecker street to Station C ■at Hudson and Bank streets. At the corner of Broadway and Houston street he met a cable car in charge of Gripman Ryan, the car ■going up Broadway on the easterly track. The two men spoke to each other. The deceased drove along up Broadway ahead of the car, and on the easterly side of the street and tracks, at an ordinary jog trot. The car went along at a creepy speed, on account of the gipsy or automatic grips, which were then in front of the cable building: The car stopped in the middle of the block at the flag station, and the deceased was then within forty or 'fifty feet of Bleecker street, and then turned westerly to cross the tracks into Bleecker street on the westerly side of Broadway. When he reached the west track another cable car going down Broadway on the westerly track was 100 feet above Bleecker street, going at a speed of from seven to nine miles an hour. ■ The gripman on this car did not attempt to apply his brake until the car was at the Bleecker street crossing, within ten or fifteen feet of the deceased’s wagon, which was then on the westerly track. The ■ deceased’s horse kept on at the same jog trot and almost got across into Bleecker street when the car struck the rim of the hind wheel of the wagon, and the deceased was thrown from the wagon to the ground and received the injuries which caused his death.</p> <p>' Under the conditions which existed at the time the car could have been stopped within sixteen feet when going at full speed and when going slowly could have been stopped within three or four feet or less.</p> <p>There was evidence given by the defendant tending to show a somewhat different state of facts. The evidence was conflicting.</p> <p>Upon the facts stated the court dismissed the complaint, holding as a matter of law that the deceased was guilty of contributory negligence.</p>

<p>• ' Appeal by the defendant, Robert A¡ Johnston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 10th day of FeM ruary, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover damages for the breach of a contract for the running of a- hotel or boarding house. In 1893 the defendant was the owner and in possession of a hotel or boarding house at Mt. St. Vincent station, in the city of Few York, known as the Forest House. The plaintiff was a woman who had for some years been engaged in keeping boarding houses. In the complaint it was alleged that the parties entered into a parol agreement in the month of-July, 1893, that the plaintiff should take possession of the Forest House, and manage and conduct it for the balance of the summer season and until about the first of Fovember of that year, and should receive for her services one-half of the net profits of the business; that pursuant to the agreement plaintiff went into the house and made some preparations to open the same and carry on the business; but that, after she had been engaged for about two weeks in preparing to open the house, the defendant refused to allow the house to be opened by the plaintiff, or to allow the plaintiff to carry on the business, and refused to carry out the agreement; and that by reason of Ms breach of the agreement she suffered damage, which she demanded judgment for. The answer was substantially a denial of the making of the agreement, and of any damages resulting from the breach thereof.</p> <p>Upon the trial the plaintiff gave evidence tending to show that an agreement was made; but instead of testifying in express terms that she was to have for her services the one-half of the net profit's of the business, she testified merely that -she was to conduct the business on shares, without expressly stating the jparticular share of each. The defendant, while conceding that there was talk about her running the house for a share of the profits, denied that there was any agreement made to that effect. He testified that the talk about her conducting the business “ on shares ” involved the plaintiff’s putting in some furniture, and that she never brought the furniture, and he claimed that the agreement was not, therefore, perfected.</p> <p>The damages sought to be recovered were based upon the profits that would have heeu made in the business, and evidence as to what, the'profits would have been was- given by both parties. The learned trial court submitted the case to: the jury upon the questions whether, the agreement was made as alleged by plaintiff,' and, if so, as to. what were the damages which she suffered by its breach; and the-verdict rendered by the jury Was for $450.</p> <p>The defendant moved to dismiss the complaint upon the ground, that-there had been a failure of proof as to the making of the agreement alleged, and as, to damages. The motion was denied, and the defendant excepted. There was a motion for a new trial made upon the minutes on all,the grounds specified in section ,999 of the Code of Civil Procedure, 'which was also denied.</p>

<p> Bond and mortgage—right of the party giving them to show that they were.given to accommodate the mortgagee.. </p> <p>In an action brought npon a bond made in 1878 by- the defendant to the plaintiff, the defense was interposed that the bond, and the mortgage given as collateral thereto, were made, without any consideration, solely for the accommodation of the plaintiff, to enable the plaintiff to purchase a lot in Plainfield, New Jersey, the mortgaged premises having been purchased in 1869, and’ the title taken in the defendant’s name, at the request of the plaintiff’s husband, who paid the purchase price-thereof and thereaften.died in 1870.</p> <p>¡Evidence was given in the.plaintiff’s' behalf,.tending to show-that the bond and mortgage were given to secure an indebtedness which the defendant had been under to the plaintiff’s husband.</p> <p>The defendant stated' that he had paid interest ou the bond and mortgage for several years, hut he was not permitted by the court to state how he' came to -, pay the interest, nor why it was demanded, of him. He. also endeavored to prove by his attorney, that, in 1869, the attorney had received from the defendant |910 as a special deposit on account of a person named Hull; and the attorney stated that he had made entries in his books relative to the transaction In relation to the purchase of the mortgaged property; but he -was not allowed to read them. The attorney was also - asked whether he had. received money . from Mr. Hull with reference to the purchase of the property in question, and the defendant himself was asked by his counsel whether he held the premises in question as trustee or not; whether, at the time he received the deed, he paid any money to any one, who paid the consideration, etc. ' All this evidence was excluded.</p> <p>JSeld, that some of the evidence was competent upon the question whether or not the defendant owed the plaintiff a debt which constituted a consideration for the bond.and mortgage, and that the ruling rejecting it was erroneous.</p>

Appeal by the defendant, Joshua Brown, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 24th day of March, 1896, upon the decision of the court, rendered after a trial at the New'.York Special Term, overruling his demurrer to the plaintiff’s complaint.-

Appeal by the defendants, Charles Brenneman and another, from a judgment of the Supreme Court in favor of the plaintiffs and the defendants, Josephine Eager and others, entered in the office of the clerk of the county of Yew York on the 28th day of March, 1896,. Upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by tbe defendant, tlie Central Trust Company of New York, 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 18tli day of May; 1896, denying its motion to bring in William Pennington as' trustee' under the last will and testament of Sally L. D. B. Smith, deceased, as party defendant in the action.

Appeal by the plaintiff, Charles Fleischmann, 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 31st day of March, 1896, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, The Unión Railway Company of Hew York City, from a judgment of the Supreme Oourt in favor of the plaintiff, entered, in the office of the clerk of the county of Hew York on the 14th day of February, 1896, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of February, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Eliza H. McCullough and others, junior attaching creditors, 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 30th day of March, 1896, denying their motion to vacate an attachment obtained by the plaintiff against the defendants.

Appeal by the defendant, Permelia M. D. Averill, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 4th day of May, 1896, upon the decision of the court rendered after a trial at the Mew York Special Term. The action was brought to foreclose a mortgage upon real estate.

<p>Certioran'i— will not lie to review a determination of tM Republican county committee that a person has been elected, chairman of a district association.</p> <p>At common law a writ of certiorari lies only to inferior courts and to officers exercising judicial functions to review an act judicial in its nature,</p> <p>The determination of the Republican county committee of New York city and county that a certain person was elected chairman of the Republican association of a certain district of an Assembly district cannot be reviewed by certiorari.</p> <p>There is no statutory provision in this State which constitutes such a county committee a judicial officer or body in such a sense that the court has power to review its determination of a question of fact made upon evidence satisfactory to the committee.</p>

Appeal by the defendant, the New York and Westchester W afcer 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 2d day of June, 1896, continuing a preliminary injunction theretofore granted in the action.

Appeal by the claimant, Nahum Tozier, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of May, 1896, overruling his exceptions to the report of a referee and confirming said report.

' Appeal by the plaintiffs, Frank McSwegan and another, from an order of the Supreme Court, made at a Trial Term thereof and entered in the office of the clerk of the county of New York on the 16th day of April, 1896, denying their motion for a new trial upon the dismissal of the complaint directed by the court after a trial before the court and a jury. .

Appeal by the defendant, George A. Hearn, 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 29th day of May, 1896, granting a compulsory reference in the action upon the ground that its trial involved the examination of a long account.

Certiorari issued out of the Supreme Court and attested on the 10th day of January, 1896, directed to Theodore Roosevelt and others, police commissioners, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings relating to the dismissal of the relator from the police force of the city of New York.

• Appeal by 0. IT. La Grange and others, comjiosing the board of fire commissioners of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of April, 1896, granting a peremptory writ of mandamus command-, ing them to restore the relator to the position of clerk of the second grade held and occupied by him in the fire department of the city of New York…

Appeal by the plaintiff, George Hastings, from a judgment of the Superior Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 4th day of December, 1895, upon the dismissal of the complaint directed by the court after a trial before the court and a jury, and also from an order entered in said clerk’s office on tlie 27tli day of November, 1895, denying the plaintiff?s motion for a new trial made upon the minutes.

<p>An action to restrain a wrong constituting a nuisance, is equitable — a corporation furnishing steam to customers, tJvrowing steam, ashes, dust and cinders upon, neighboring property.</p> <p>The complaint in an action alleged that the defendant,, which was a corporation engaged in supplying steam to customers, so negligently conducted its business as to constitute itself a nuisance, greatly diminishing the value of the neighboring premises of the plaintiff by allowing large quantities of steam, ashes, coal dust, cinders and soot to escape from its works, which corrupted the air. It stated specific injuries sustained by the exterior and interior of plaintiff’s premises and by his household furniture, and asked as relief that the defendant be forever enjoined from operating its works in any manner so as to produce the nuisances complained of, and also demanded damages for injuries already sustained. It also alleged that, because of the continuing character of the wrong in question, an adequate remedy at law did not exist.</p> <p>.Held, that the case was not an action for a nuisance, and, therefore, triable by a jury within the provisions of section 968 of the Code of Civil Procedure; .</p> <p>That the provisions of section 1660 of the Code of Civil Procedure, providing that “ An action for a nuisance may be maintained in any case where such an action might have been maintained under the laws in force immediately before this act takes effect,” referred to the common-law action of nuisance; that is to say, either to an action on the case for damages, or to an action to abate a nuisance;</p> <p>That 'the present action was not brought to accomplish exclusively either of these purposes, hut was designed to restrain by permanent injunction the con- ■ tinuance of a wrong, which wrong happened to consist in the maintenance of . a nuisance;</p> <p>That the action, being equitable in its nature, was not triable by a jury.</p>

<p>Appeal by the defendants, Arthur McMullin 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 16th day of March, 1896,. upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1896, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Harry Wilson, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, rendered on the 4th day of March, 1896, upon the verdict of a jury convicting him of the crime of burglary in the second degree, second offense, and also from an order bearing date the 4th day of March, 1896, and entered in said clerk’s office denying the defendant’s motion -for a new trial and in arrest of judgment.</p>

<p>Trial — stipulation that the evidence taken on a former trial he read — the judgment to he rendered—exceptions arre not available — demand of the resignation of an-inspector of the aqueduct commissioners — delay of two yea/rs in his formal discharge.</p> <p>Where, upon the third trial of an action, it appears that the parties have stipulated “ that the evidence taken upon the previous trial of the above action be read at Trial Term as the evidence in this action, and that no further evidence shall be introduced on either side outside of that which is contained in the case on. appeal,” the trial court has no other duty than to declare the law as laid down, by the court on the appeal from the judgment entered upon the second trial. In such case a verdict should be directed in favor of the party entitled to. succeed. ■ '</p> <p>Under such a stipulation the evidence is not to be considered, subject to any objections taken-to its admission on the former trial, and such objections are not available to- the party taking them. '</p> <p>Where a person in the employ of the aqueduct commissioners of-the city of Hew York receives an official demand for his resignation, after which he renders no-further services, the fact that the formal notice of discharge is not received until some two years later.does not entitle him to a salary during the interval.</p>

<p>Transfer tax — securities conveyed by a trust deed, irrevocable except by consent of both panties, are not taxable.</p> <p>A deed of trust, executed February 14, 1889, provided that the trustee named therein should hold certain securities and apply their income to the use of the grantor as long as she should live, and after her death that he should divide • the securities equally among her nieces, and also contained the following' proviso: “ Provided, however, that this instrument may, at any time, be modified or vacated by an instrument in writing to be executed by me and by the said trustee, or his successor or successors.” Under this latter clause the instrument was subsequently slightly modified.</p> <p>The grantor died on the 31st day of May, 1893.</p> <p>Held, that the property which passed under the trust deed was not subject to the transfer tax imposed by chapter 399 of the Laws of 1893;</p> <p>That the transfer became effective at once upon the execution of the deed and the delivery of the securities, and that the donees mentioned in the instrument took a vested interest, liable only to be defeated by their failure to survive the donor or by modifications which might be agreed upon, during the term of the trust, between the trustee and'the grantor;</p> <p>That there was no power of revocation reserved, as the power to revoke or modify expressly required the assent of both the donor and the donee;</p> <p>That the transfer was in the nature of a gift inter vivos and was not taxable.</p>

<p> A County Court may, on an appeal^ from a justice of the peace, reduce the damages conditionally. </p> <p>It is within the power of a County Court to make a conditional reduction of damages in an action of tort, where the damages necessarily rested in the discretion of the jury.</p>

<p>Appeal by the defendant, the Empire Woolen Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the cleric of the county of Oneida on the 4th day of February, 1896, striking out the answer of the defendant as frivolous.</p> <p>This action was commenced January 2, 1896. The complaint alleges that plaintiff was and is trustee of and under the last will of Ahijah J. Williams, deceased, for Jane M. B. Heath, “ which said will was duly proved and admitted to probate by the Surrogate of the'county of Oneida and State of New York, long prior to the giving of the note hereafter mentioned.” The complaint states that the defendant is a domestic corporation organized under the laws of the State of New York, and “alleges that said defendant heretofore, for value received, made and delivered to the plaintiff, as such trustee, its promissory note, in writing, of which the following is' a copy :</p> <p>“$4,635.00 New York, July 1st, 1895.</p> <p>“ Six months after date, we promise to pay to the order of James H. Williams, trustee, Four Thousand Six Hundred and Thirty-five and Dollars, at Oneida National Bank, Utica, N. Y.— Value received.</p> <p>“ EMPIRE WOOLEN CO.,</p> <p>“ O. W. Williams,</p> <p>“ President</p> <p>The complaint alleges that no part of the note has been paid, and prays for judgment for the sum of $4,635, with interest thereon from the 1st day of January, 1896. The complaint seems to have been verified by D. Clinton Murray on January 2, 1896,</p> <p>The defendant appeared and interposed an answer in the following words:</p> <p>“That the plaintiff, James H, Williams, is now, was at the time, this action was commenced, and had been for more than a year last past of unsound mind, and totally and utterly incapable of understanding or transacting any business whatever, and is utterly incapable of maintaining this action, and was so at the time it was brought.</p> <p>“ That, as defendant is informed and verily believes, D. Clinton Murray, the person who appears to have verified the complaint, was not at-the time he verified said complaint, could not be and never was the agent or attorney in fact for the plaintiff, and that at the time of the pretended appointment of said Murray as the attorney in fact of the plaintiff, and at the time of the pretended appointment of the said Murray as the agent of the plaintiff,, the said James H. Williams was and ever since has been of unsound mind and without any understanding whatever.”</p> <p>The answer was verified by the president of the defendant. An> application was made to a justice of this court on notice on the 3d of February, 1896, for an order striking out as frivolous the defendant’s answer, and for judgment as prayed for in the complaint. Upon hearing $ie parties the justice made an order in the following language: “ Ordered, that the defendant’s answer herein be and the same hereby is, stricken out as frivolous; and it is further ordered that plaintiff have judgment as prayed for in the complaint herein, with $10 costs of this motion.” Defendant appeals from the order, which was filed in Oneida county February 4, 1896.</p>

<p>JSxtra, allowance — action to dissolve a corporation — an allowance may be based upon the franchise of a corporation where its value is shown — Code of Civil Procedure, § 3353.</p> <p>Tn an action brought by the Attorney-General against a saving and loan association (after an examination by the superintendent of Banks, and a report by him to the Attorney-General, who was of the opinion, derived therefrom), that the defendant should be restrained from the transaction of business, asking that its ' charter should be annulled; that a receiver should be appointed, and that a temporary injunction should be issued, the complaint was dismissed upon the merits, - with costs.</p> <p>¡Subsequently a motion for an extra allowance was made upon affidavits showing that the franchise of the defendant was reasonably worth the sum of §30,000, and that the case was difficult and extraordinary, and an extra allowance of §1,000 was granted.</p> <p>.JETeld, that the extra allowance was properly granted, but that its amount should be reduced to §500.</p>

Appeal by the defendant, Mary K. Laney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of October, 1894, upon the report of • a referee. This action was commenced on the 10th day of March, 1890,. in the name of “ Enos G. Laney, individually and as administrator of the goods, chattels and credits of James Laney, deceased.” Enos G-.

Appeal by the plaintiff, the He-ha-sa-ne Park Association, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 18th day of October, 1895, upon the report of a referee dismissing the plaintiff’s complaint upon the merits, with costs, with notice of an intention to bring up for review upon such appeal an order made at the Onondaga Special Term, and entered in the office of the clerk of the county…

Appeal by the defendant, John 0. Roe, from a judgment of the Oounty Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 28th day of May, 1895, upon the report of a referee. The judgment recovered by the plaintiff was for the sum of $145.12, besides costs.

Appeal by the plaintiff, Ferdinand H. Duckwitz, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Niagara on the 10th day of January, 1896, upon a dismissal of the complaint directed by the court after a. trial at a Trial Term thereof before the court without a jury.

<p>Appeal by the plaintiff, Patrick Horrigan, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 25th day of January, 1895, upon a nonsuit granted by the court after a trial before the court and a jury at the Onondaga Circuit.</p> <p>The plaintiff requested to have the case submitted to the jury and his request was denied and an exception was taken. An exception was taken when the motion for a nonsuit was granted.</p> <p>The action was brought to recover the' damages resulting from personal injuries sustained by the plaintiff by reason of the alleged negligence of the defendant.</p> <p>On May 14, 1891, the plaintiff was in the employ of the defendant, engaged with a wrecking crew nf some fourteen men at De Witt. There was a derrick, having a mast and boom, set up on an ordinary fiat-bottom car, used in keeping the railroad tracks free from wreckage, and in transferring heavy bodies from one car to another. The car was fitted out with clamps, intended to hold the car on the' track when, the derrick Was under the strain of a heavy load, and it was claimed that the clamps had become dulled and blunt to some extent, so that they would not hold the car on the day of the accident. There was evidence tending to show that the car had been used for some time and had become somewhat impaired, and that one of its sills was-somewhat decayed and wormeaten. The car was under the charge of one Teller.. Previous to the occasion of the injuries received by the plaintiff he had observed that the car was somewhat impaired, and had called the attention of Teller to it.</p> <p>It seems that when'the wrecking crew were engaged in using the car and derrick on the occasion of the injuries, the sill of the car broke, and the plaintiff, who was engaged in turning the derrick windlass, was .thrown from the car and his leg broken, and injured in some other respects. Plaintiff testified that he had observed whether the clamps would hold the cal* in position while the derrick was in use. He testifies: “ I saw it pull right up one time and tip over. About six or eight weeks before, when the clamp was on, it gave way, and the car rolled over, and threw off three or four men that were on it.” He testified that he had known the car about six years, and “ the timber of it — they were pine timber, and their dimensions, as nearly as I can state, were six by eight, or six by six inches. * * * I noticed a kind of a dent or split across the sill. It came right above where it broke; * * * that is the middle clamp; the side of the rent I should guess was about a quarter of an inch, and about eight inches long * * * along the sill, of the car; the outside sill; * * * what I observed about it before that, I mean while in operation, was when we would be lifting any heavy purchase ; it used to settle down until the sill over which we would be raising the burden would fall right pretty near the rail — within a foot or fourteen inches of the rail; * * * when I observed it settle we were raising railroad car trucks. * * * It broke just exactly about in that part of the car where that clamp stands, this side of the trucks. * -* * The car was split clear across and fell; the side split off; the break came with reference to this sill about the same place that I pointed out to the foreman; that is about ten feet from the end of the car ; from the end where the crane stood. * * * When the car tipped’ or rolled over, it turned me off all in a moment; six seconds didn’t intervene when I was thrown to the ground. * * * I had noticed before this that it would creak when in operation and settle down.”</p> <p>In the course of the remarks made by the trial judge in granting the nonsuit he observed: “ Here the plaintiff knew just as much about this defect as any one; he saw it; he had seen how the machine acted on previous occasions ; he knew the danger, and yet he remained. * * * There is an assurance that what he had the same power to discover was not right by the use of his senses, was all right.”'</p>

. Appeal by the .plaintiff, Angela E. Moosbrugger, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Steuben on the 30th day of December, 1895, disallowing the plaintiff’s costs and allowing the defendant’s costs in the above-entitled action, and in fourteen other actions by the same plaintiff against different defendants.

<p>Appeal by the plaintiff, William Knop, from a judgment of the Superior Court of Buffalo in favor of the defendants, entered in the office of the clerk of said court on the 27th day of May, 189'5, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 1895, denying the plaintiff’s motion for a new trial made upon the minutes, and upon the ground of' newly-discovered evidence.</p>

<p> Negligence—a physician may .testify to the painful and, dangerous cha/racter of a hernia —testimony based on the plaintiff’s history of the case—a witness may testify that he' could have heard a bell of whistle if one had been sounded—exclusion -of competent evidence, how cured. </p> <p>In an action brought to recover the damages resulting from personal injuries ‘ sustained by the plaintiff by reason of the alleged negligence of the defendant, • it appeared that, at the place of the accident, the highway ran north and south • and the railroad east and west; that ¡the four tracks of the defendant’s were numbered consecutively, beginning at the south; that the plaintiff was driving southerly and was struck by a west-bound train running upon track No. 2 at a very high rate of speed; that the plaintiff was carried over 1,600 feet, and was then found sitting unconscious upon the pilot of the locomotive. The evidence tended to show that at a distance of 300 feet from track No. 4 there was a fairly unobstructed view of the track towards the east for about eighty rods, and that at a point eighty-six feet north of track No. 4 there was an unobstructed view east and west for a quarter of a mile. There was evidence tending to show that the night was very dark; that it was snowing hard; that the wind was blowing from the west and that it was difficult to see or hear approaching trains. The plaintiff swore that as he approached the crossing he stopped and looked both ways, and that hearing and seeing nothing he proceeded, while the engineer of the train which struck him testified that when he first saw the plaintiff’s horse it was north of the crossing and .on a full run, which continued until it was struck by the engine.</p> <p>Meld, that the questions of the plaintiff's contributory negligence and the defendant’s negligence, which consisted in its alleged failure to give proper notice of the approach of its train, and concerning which the evidence was conflicting, were proper subjects for the consideration of the jury.</p> <p>A physician who was. called to see the plaintiff immediately after the accident, and who continued to attend him while he was suffering from his injuries, testified that there was a breach in the plaintiff’s right side, which he termed “ direct ' hernia,” and upon his redirect examination he was asked whether a breach of that kind at any time became dangerous to life, or became dangerous or painful in any way. The .witness answered that he thought it was dangerous, and then added, without any further question being put to him, “It may come out and become strangulated so it is impossible ■ to return it without an operation.” He was then asked, also under objection, “Does death sometimes follow?” to which he replied, “Tes, sir; frequently.” ■</p> <p>Meld, that that part of the testimony relating to the breach and the painful character of the hernia, and its likelihood to result in death, was competent, and was not speculative.</p> <p>Semble, that while that part relating to the possible strangulation of the hernia was perhaps objectionable, yet, that as it had been volunteered by the witness, and the defendant’s counsel had made no motion to strike it out, it afforded no ground for complaint.</p> <p>It appeared that another medical witness had made an examination of the plaintiff in order to qualify himself to testify as a witness in the action, and that a •history of the case had been furnished him by the plaintiff and the attending physician.</p> <p>The witness was asked the question whether, from the examination which he had made of the plaintiff; from the history of the case which had been given to him, and his practice and experience as a physician and surgeon, he could give an opinion as to the future effect of the injuries upon the health . of the plaintiff.</p> <p>Meld, that while the part of the question directing the witness to base his opinion upon the history of the case received oukof court, and from the plaintiff himself, was objectionable, yet, that asi the question was hot in its entirety an improper ohe, the defendant, to take advantage, of the defect, should have pointed out the objectionable feature instead of talking a general objection.</p> <p>A witness had testified that he saw the train' and that the bell was not rung nor the whistle blown; he also stated that he was standing at a point about a quarter of a mile distant from the ringing post, which was about eighty rods east of the crossing and that his hearing was good. He was then asked whether he could have heard it if the bell had been rung or the whistle sounded, and to this he replied that he could have done so.</p> <p>Meld, that his answer was admissible, as it was not the mere expression of an opinion, but involved the statement of a fact concerning which the witness, because of his experience or knowledge as to the acuteness of his faculties, was more competent to speak than any one else:</p> <p>Although competent testimony has been rejected, if its effect has been supplied . by other testimony actually received, the court will- not order a new trial because of the error.</p>

<p>New trials — when they should he granted—liberal rule in actions of ejectment — Code of Civil Procedure, § 1525.</p> <p>A trial court, if it is satisfied that the entire evidence does not fairly justify-the conclusion reached hy the jury, may set aside the verdict and grant anew trial; and while the duty of correcting the mistakes of juries is one which ought to be exercised with great care and wise judgment, it is nevertheless a duty, in the performance of which.trial courts should not be discouraged, where the due administration of justice seems to require a new trial.</p> <p>A new trial maybe granted upon slighter grounds in an action of ejectment than in an ordinary action, especially where it is conditioned upon the payment of costs and disbursements and no damages have been awarded, for the reason that a party in such an action may demand a new trial under the statute and obtain it as a matter of right upon the payment of all costs and damages.</p>

<p>Appeal by the defendant, The Grand Rapids Fire Insurance Company, Grand Rapids, Michigan, from an order of the Superior Court of Buffalo, made at a Special Term thereof and entered in the office of the clerk of said court on the 19th day of November, 1895, denying the defendant’s motion for a new trial on the ground of newly-discovered evidence.</p>

<p> Jfegligence—a customer of an ice dealer struck lyy a cake of ice in an unexplained, manner-,—negligence not implied from the accident itself. </p> <p>In an action brought to recover damages, resulting from injuries caused by the alleged negligence of the defendants, it appeared that the defendants were partners and sold ice in Buffalo. The ice was delivered from their storehouse by a gig, forming a cage for the cake, from which it could not escape if the framework was in proper condition. This gig was operated by a rope and pulley, the gig, when the cage was full, descending until it came within a few feet from the bottom at a point where iron arms, projecting from the cage, would strike the framework, open a gate of the cage and allow the ice to slide upon a platform. The only proof of negligence given by the plaintiff consisted in the fact that while the plaintiff was on the platform he was struck by a piece of ice; the gig being at the time of the accident at the Opening'near tire top of the building.</p> <p>Meld, that the court properly nonsuited the plaintiff;</p> <p>'That the defendants were occupying the premises for business purposes, and if the plaintiff went there upon an implied invitation to obtain the ice, that the defendants owed him no duty beyond such reasonable care as would no't unnecessarily and unreasonably expose the plaintiff to danger during the continuance of the invitation;</p> <p>'That the accident was not of such a character as to itself raise a presumption of negligence which could only be overcome by explanatory evidence upon the part of the defendants.</p>

<p>Appeal by the defendants, Christian J. Miller and another, as •executors, etc., of Charlotte Miller, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered upon the report of a referee in the office of the clerk of the county of Monroe on the 26th day of June, 1895, for $358.63 damages and costs.</p> <p>The defendants’ testatrix, Charlotte Miller, indorsed the note in suit, made by one Amelia Witzleben; and the same was subsequently indorsed by Christian J. Miller, the husband of the first indorser, both of such indorsements being for the- accommodation of the maker. The note was thereafter delivered to the plaintiffs who also indorsed it, and procured it to be discounted' by the German-American Bank of Rochester.</p> <p>Charlotte Miller died September 11, 1894, leaving a last will and testament, which was duly admitted to probate upon the 22d day of October following, and letters testamentary were, upon the same day, issued to the-defendants by the surrogate of Monroe county.</p> <p>The note fell due September 24, 1894, and the day previous one of the plaintiffs called at the bank where the note was held and gave directions not to protest the same, giving as a reason therefor that the indorser -relied upon was dead, and he also directed the bank, in ease the note was not paid at maturity, to charge it to the plaintiffs’ account:</p> <p>In obedience to such instructions the note was not protested at its maturity, but was charged up to the plaintiffs’ account; and thereafter, and about October fourth, the plaintiffs sent a party to see. Christian J. Miller, who was then informed that the note was due; that it was the note that his wife had indorsed for Witzleben, and that the holders looked to him for its payment; and he replied that the matter was in the lawyer’s hands, referring to his co-executor, Mr. Roe. '</p> <p>Shortly thereafter, and about the middle of October, the plaintiffs’ attorney met the defendant Roe aiid gave him verbal notice of the non-payment of the note, and that the plaintiffs would look to the estate of Mrs. Miller for its payment, whereupon Roe directed him to draw up an affidavit of the claim and present it. Subsequently, and upon the seventh of' November following, the claim was presented in due form, and it was at once rejected by the defendants and a reference under the statute agreed upon.. .</p> <p>The referee thereafter reported in favor of the plaintiffs for the full amount of the note, with costs.</p>

<p>AppSal By the defendant, The Erie Preserving Company,, from ;a judgment of the. Superior Court of Buffalo in favor of the plaintiff,. entered in the office of the clerk of said court on the 8t'h day ■of February, 1894, upon the verdict of a jury, and also from an ■order, entered in said clerk’s office on the 6th day of March, 1894, ■denying the defendant’s . motion for a new trial made upon the minutes. ' . ■ '</p> <p>The plaintiff brings: this action to recover damages for" the loss of the services of his infant daughter, occasioned by injuries sustained by her in consequence of the alleged negligence of the defendant.</p> <p>The defendant is a domestic corporation and engaged in the business of canning and preserving fruits and vegetables, with its principal, office located at the city of Buffalo.</p> <p>The plaintiff’s daughter, when she was about twelve years of age, entered into, the defendant’s service in one of its canning factories, where she had been at work for about two weeks prior to the time •of receiving her injury. She had also worked for the same defendant at another of its canning factories for a period of three months during the preceding year.</p> <p>On the 10th day of September, 1892, she was directed by the •defendant’s superintendent to work at a machine known as the Sprague Oorncutter,” and which was used for shelling corn. This machine was operated by placing whole ears of corn in a spout or trough, the bottom of which consisted of a continuous chain running towards the machine, by means of which the ears were earned to a place where they were taken up by the catch wheels or feed rolls, •and by them carried along to the knives where the corn was shelled from the husks. When the machine was in operation, the catch wheels revolved rapidly inwardly toward the lower center, and these wheels frequently became clogged by reason of ears of corn of irregular size becoming stuck as they were brought into contact with them.</p> <p>The plaintiff’s daughter is an Italian, and the evidence tends to show that she was unable to understand English; that when the •defendant’s superintendent directed her to go to work at this machine she demurred, and at first refused to go, saying she was afraid ; that he insisted that she should go, and that she thereupon went and proceeded to feed the machine with corn; that she had had no previous ■experience with this or any similar machine, and that no instructions were given her as to the manner of operating the same, further than that the superintendent pointed to it and told her to go to work. Shortly after she commenced operating the machine the wheels became clogged with an ear of corn, and, in attempting to push the ear towards the knives, her hand was drawn in, one of her fingers was taken off, and the hand itself was considerably lacerated and injured. Progressive inflammation of the finger joint and of the lower arm followed, in consequence of which a re-amputation and several incisions became necessary.</p> <p>The jury rendered a verdict in favor of the plaintiff- for $1,200.</p>

<p>Accident insurance—“voluntary exposure to unnecessa/ry danger" and injury “while violating lam," defined,—implied license to cross railroad tracks, areated by acquiescence—1890, chap. 565, § 53.</p> <p>In a policy of insurance upon the life of Morris Lehman, the husband of the plaintiff, it was provided that the indemnity was available only in case the assured met his death “ through external, violent and accidental means; ” and that-the insurance did not cover “voluntary exposure -to unnecessary danger; * * . * n0r. any injury, fatal or otherwise, caused directly or' indirectly ; (wholly or in part) * * * while violating law,” . . ,</p> <p>The General Railroad Law of the State provides that “no person, other than those connected with or employed upon the railroad, shall walk upon or along its track or tracks', except where the same shall be laid across or along streets ' or highways, in which case -he shall not walk upon the track-unless necessary to cross the same..”</p> <p>In an action brought to recover the amount of the policy the evidence tended to show that, when the accident happened, the deceased was on his way to the yard of Ginsburg & Sons, which was located east of the double tracks of the '“Belt 'Line” of the city of Buffalo and south of Sycamore street. He'had ' gone as far as the ^Sycamore street crossing, and then walked south along a , path upon the west side, of the west track until he had reached a point about . forty-five feet south of the south line nf Sycamore street, when he observed a train coming towards him from the south upon the east track. -He waited for this train to pass, and turned to cross the west track in the direction of the yard, and while in the act of turning and before he had '-placed'his foot upon the track, he was struck.by the pilot beam of a locomotive, coming from the north, and was killed. There was a path along the railroad track some four feet in width, which had, for a number of years,, been constantly used by the public to reach Grinsburg & Sons’ yard, to which there was no other approach from Sycamore street except through a gate for teams, which was usually kept locked.</p> <p>The defendant insisted:</p> <p>First. That the death of the assured was directly attributable to his violation of the statute forbidding persons to walk upon or along a track, except where the track was laid across or along streets or highways; and,</p> <p>Second. That his act amounted to a “ voluntary exposure to unnecessary danger,” within the language of the policy.</p> <p>Feld, that the statute was not a defense;</p> <p>That, in the first place, it might be said that the" deceased had not “ walked upon or along the track ” as matter of fact, but was in the act of stepping upon the track when he was injured;</p> <p>That, moreover, the use of the crossing by the public, as a means of reaching the yard, had been acquiesced in by the railroad company for a period which had ripened the use into a license, of which the assured might avail himself without violating the statute, as the provision of the statute was designed primarily to protect railroad companies, which, when they allowed the public to have a • crossing over their tracks, were not in a position to claim that the persons who had availed themselves of the privilege had violated the law;</p> <p>That it could not be said that the assured lost his life in consequence of his “voluntary exposure to unnecessary danger;”</p> <p>That “negligence” and “ voluntary exposure to unnecessary danger” were not necessarily, nor usually, equivalent terms;</p> <p>That “ voluntary exposure” involved design, and that a person could not be said to have been guilty of a "voluntary exposure to unnecessary danger,” unless he intentionally and consciously assumed the risk of an obvious danger; which conscious intention did not exist in the conduct of the deceased in this case.</p>

<p>■ Appeal by the defendant, Frances Pomeroy, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, • entered in the office of the clerk of the county of Wayne on the 27th day of August, 1895, upon the decision of' the court rendered after a trial at" the Ontario Special Term construing the last will and testament of Charles G-. Pomeroy, deceased.</p> <p>The will of the testator was as follows:</p> <p>“ In the name of God, Amen: I, Charles G. Pomeroy, of the village of Newark, county of Wayne and State of New York, being of sound and disposing mind and memory, do make, publish and declare this my last will and testament, in manner and form following, that is to say:</p> <p>“First. I will and devise the house and lot on which I reside, being my homestead, in the village of Newark aforesaid, including any new house or buildings that I may, after the date of this my will, put upon said premises, to. my son, Rhea B. Pomeroy* for and during his natural life; and after his death, if he leaves a- wife and she has a child or children by him then surviving, then to his wife during her life, and after her death, to his child or children absolutely .in feeif he leaves no wife, but leaves child or children, then at and after his death to such his child or children absolutely in fee;' if he leaves no child or children, then at and after his death, to my daughter, Eliza A. McIntyre, for and during .her natural life, and at after her death, to her children absolutely in fee.</p> <p>“ I also set apart, will and bequeath one hundred dollars annually, each and every year, from the net income of my estate, to be expended as my son Rhea may direct, by my executors hereinafter named, for and in repairs to my said homestead and the buildings thereon.</p> <p>“ Second. I also will and bequeath to my said son, Rhea B-. Pomeroy, all the furniture in my said house and the. piano and my library, both medical and private, including all my books, and my surgical instruments, also two of my horses to be selected by him, and all my harnesses and carriages and carriage robes and sleighs and robes used therewith, that I may leave; also my gold watch and chain, microscope, pictures, safe, beds and bedding, and all my furniture and similar articles used in my said house and barn.</p> <p>“ Third. All the rest, residue and remainder of my real and personal property and estate, of every name, kind and nature, wheresoever situate (after deducting said homestead and the articles and property hereinbefore devised and bequeathed), I will, devise and bequeath to my executors hereinafter named, and their successors in trust, upon and unto the uses, purposes and trusts hereinafter named, that is to say :</p> <p>“ The equal one-half of said rest, residue and remainder of my said property and estate I will, devise and bequeath to my said executors, and their successors, in trust, to receive the rents, issues, income and profits (including one-half of the interest on moneys invested) thereof, and pay and apply the same to and for the use of my son, Rhea B. Pomeroy, until he shall arrive at the age of forty-five years, if he shall so long survive, or in case my said son Rhea should not live to reach the age of ■ forty-five years, then to apply the same to the use of my said son during his life..</p> <p>“ When my said son shall arrive at the age of forty-five years, if, in the judgment of my executors, or their successors, he is a sober man and fit to be intrusted with said property, then my said executors, or their successors, are to transfer and convey said one-half of said rest, residue and remainder of my said property and estate to my said son absolutely, to be his absolutely.</p> <p>“ If, when my said son arrives at the age of forty-five years, he is not, in the judgment of my executors, or their successors, a sober man, and is not fit to be intrusted with said property, then my said executors, or their successors, are to retain the same in their hands and control until such time as my said son "shall, in their judgment, be a sober man, and fit to be intrusted with said property, and then they are to transfer and convey the same to him, to be his absolutely.</p> <p>“ During the interval before my said son" shall arrive at the age of forty-five years, or longer if they should retain possession and control, my executors, or their successors, are not" to .sell any of my real éstate without my son Rhea’s consent, ñor shall • they during • such time repair or rebuild any of my real estate without his advice and consent, and they are to invest any principal or any income thereof in their hands, not necessary for immediate- use for the purposes of this will, in bond and mortgages on real estate or in government'or Hew York State securities.</p> <p>“ If my said son, previous to the time of his arrival at the age of forty-five years, or previous to the further. time above mentioned, when my said executors or their successors shall transfer and convey to him said half of said rest, residue and remainder of-my said property as above provided, shall die, leaving a child or children. him surviving, then my said executors, or their successors, shall transfer-and convey said above-mentioned half of said rest, residue and remainder of my said property and estate to such his child or children absolutely; if he, in 'stich - event of his death, within the periods last aforesaid, should leave no child or children him surviving, but should leave a wife him surviving, then she is to have, and I'devise and bequeath to her, one-half of the income of said .half of the rest, residue and remainder of my said property, so. long as she shall remain his widow unmarried; the other oneJialf of said income is to be held by my said .executors or their successors and paid by them to and for the use of daughter, Eliza.A. McIntyre; in case the wife of my said son should marry again, then the share of said ' income so bequeathed to- her is to go to my daughter, Eliza A. McIntyre, if she then survivesif not, to her children.</p> <p>. “If my said son. Rhea should die- before by-said 'executors, or their successors, shall, under the foregoing provisions, transfer and convey -to him the said one-half of the rest, residue and remainder of my said property and estate, leaving no child or children or wif e surviving, then my said executors or their successors are fo-hold.said one-half of said rest, residue and remainder, and 1 bequeath and devise- the same to them in trust' to pay the rents, issues, profits and income of the same to and-for the use of my said daughter, her. husband and children, under and upon the same trusts, and for the same periods, as are herein below provided in regard to the other one-half of said rest, residue and remainder of my property and estate herein below devised and bequeathed;</p> <p>61 _'Fourth. The other one-half of all the rest, residue and remainder of -all my said property and estate remaining after deducting the homestead and the articles and property bequeathed in the above paragraphs of this will marked ‘ First ’ and £ Second,’ I will, devise and bequeath to my executors, hereinafter named, and their successors, in trust, to receive the rents, profits and income thereof (including half the interest on moneys invested), and apply them to the use of my daughter, Eliza A. McIntyre, for and during her natural life, and from and after her death, to the use of her husband, Samuel B. McIntyre, and of her children equally, share and share alike, for and during the life of said Samuel B. McIntyre, that is, her said husband is to have one share and each of her children is to have one share of said income, but if said Samuel B. McIntyre should marry again after the decease of my said daughter, then his share of said income is to cease, anything herein to the contrary notwithstanding.</p> <p>££ If my said daughter should die leaving no child or children, but leaving a husband, said executors or their successors shall apply the rents, profits and income of said half of said remainder of my estate to his use so long as he remains single and unmarried, and no longer.</p> <p>££ And if my said daughter should die leaving no husband, but leaving child or children, then my said executors, or their successors, are to transfer and convey the said last-mentioned one-half of said rest, residue and remainder of my said property and estate to such her child or children absolutely and equally, and jn that case I will and devise the same to them.</p> <p>££ If my said daughter should die leaving a husband and a child or children, then at and after the death or re-marriage of her said husband, said executors or their successors are to transfer and corn vey said half of said rest,. residue and remainder of my said proj^' efty and estate, to her said child or children, and I will and devise the same to them in that event.</p> <p>“ If my said daughter should die leaving no husband or children, then and in that ease said half of said residue and remainder of said estate shall go to my executors aforesaid, and their successors, the rents and profits and income thereof to be paid and applied by them tó the use of my said son Rhea for the same time as is above provided for the other half of said residue and remainder, and upon the same trusts, for the same length of time, and upon the same conditions as is above provided for the other half of said residue and remainder of my said property and estate.</p> <p>“ Fifth. The rents, profits and income herein above provided to be paid to my said son Rhea, shall be paid to him quarterly or semiannually, as he may desire, or oftener if convenient,</p> <p>“ The personal property and income herein willed and -bequeathed to, and for the use of my said son Rhea shall not be liable for his debts.</p> <p>“ Neither of children shall have power to incumber, forestall or anticipate any part of the income provided for his or her use in and by this will.</p> <p>“ My executors, on taking possession of my estate, shall make a full list of all the property and estate left by me, and furnish a full copy 'of the same to my son Rhea, and to the other heirs if they desire it: •</p> <p>“ Sixth. I will and direct that a home shall be provided for my wife’s sister, Euretta Miles, for and during her life, at my homestead, and she shall have her Avkole- support from my estate in sickness and health, and' burial, the expenses whereof' shall be paid by my executors out of the net income of the whole of my estate, the burial of. said Euretta Miles to be on my lot in the Newark Cemetery unless she should dictate otherwise.</p> <p>“ In case of my son Rhea’s death, so he is not at the homestead to keep house, and she should wish to live somewhere else, she is to have the like support elsewhere AA'here she may select.</p> <p>“ Seventh. In case I do not put up a family monument on my burial lot in the Newark Cemetery during my lifetime, then any executors are- to put up one at a cost not to exceed $600.00 nor less than $500.00 Avithin three years after any death, to be paid for out of the incoane of any whole estate, the character and style of which shall be determined by my son Rhea.</p> <p>“ Lastly. I make, constitute and appoint my son-in-laAv, Samuel B. McIntyre, and Henry R. Durfee, Esqr., Attorney at Law, of Palmyra, to be the executors of this my last will and testament, hereby revoking all foraner wills by ane añade.</p> <p>“ In Avitness whereof I have hereunto subscribed my naane and affixed my seal this 4th day of August, in the year 1884.</p> <p>“CHARLES Q.-POMERÓY. [l. s.]”</p>

<p>. Motion by the plaintiffs, Ira B. Humphrey and others, for a new trial on a case containing exceptions, ordered to he heard at the General Term in the first instance upon the verdict of a jury in favor of the defendant rendered by direction of the court after a trial at the Ontario Circuit on the 29th of October, 1895.</p>

<p>Agreement for arbitration — it effects a discontinuance of a pending action or proceeding— after haring entered into an arbitration a corporation cannot obtain an order under the Condemnation Act, autlwrizing it to take possession of the property upon making a deposit.</p> <p>An agreement submitting a controversy, involved in an action or special proceeding then pending, to the determination of arbitrators, pursuant to the rules of the common law, effects a discontinuance of the action or proceeding.</p> <p>The fact that a formal order is not entered, discontinuing a proceeding, does hot deprive the defendant of the right to set up the arbitration agreement as a defense to its further continuance.</p> <p>Upon an appeal by James T. Brundage from an order made under section 3380 of the Code of Civil Procedure, permitting the plaintiff, a railroad corporation, to enter immediately upon certain real property, and to construct a railroad thereon, upon its depositing §20,000 with the court, it appeared that Brundage was the lessee of the premises, and that he and the railroad .corporation being unable .to agree as to the valué of a right of way over them, proceedings to condemn such right .were duly instituted. Subsequently, and pending such proceedings, the parties entered into a written agreement to submit the question of damages to three arbitrators named therein.</p> <p>About ten days after the arbitration agreement had been executed, the railroad corporation moved for and obtained the order appealed from: ■</p> <p>.Held, that the order in effect would nullify the arbitration agreement, and should not have been granted.</p>

Appeal by the defendants, William P. Chapman and Elizabeth J. Chapman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Monroe on the 17th day of December, 1895, upon the report of a referee. The plaintiff is a national bank, organized under the statutes of the United States, having its banking office and principal place of business at Chicago, 111.

Appeal by the defendant, James Storum, as administrator, etc., of William Storum, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 3d day of August, 1895, upon the report of a referee. The Mutual Reserve Fund Life Association was incorporated under chapter 267 of the Laws of 1875, and reincorporated under chapter 175 of the Laws of 1883.

Appeal by the defendants, Samuel J. Moore, and another, from, an order of the Supreme Court, made at the Erie Special Term and. entered in the office of the clerk of the county of Erie on the 11th day of March, 1896, denying their motion to change the place of trial of thp action from the county of Erie to the county of Niagara, for the convenience of witnesses.

Appeal by the plaintiff, Margaret Donlon, as executrix, etc., of Bridget Fox, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Chautauqua on the 21st day of March, 1896, upon a non-suit granted by the court at the Chautauqua Trial Term, after a trial before the court and a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1896, denying the plaintiffs motion for a…

<p>Appeal by the defendant, the Rochester Gas and Electric Company, from an order of the County Court of the county of Monroe, entered in the office of the cleric of the county of Monroe on the 9th day of December, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was- begun in the Municipal Court of the city of Rochester on the 23d day of October, 1894. In that court judgment was rendered for the defendant. The plaintiff appealed to the County Court of Monroe county, where, a new trial was had before the court and a-jury, and a verdict rendered by the jury in favor of the plaintiff for the sum. of $575. A motion was made on the minutes for a new trial “ on the ground that the said verdict was contrary to the evidence and contrary to the law and on exceptions taken on said trial.” The motion was denied, and all proceedings on the part of the plaintiff were stayed “ until the hearing and decision of the defendant’s appeal from the order denying its motion ■for a new trial.” In December, 1895, the defendant appealed from the order of the Monroe County Court denying defendant’s motion for a new trial.</p> <p>In the plaintiff’s complaint it is- alleged that he is and has been since the 1st day of March, 1894, the occupant of two offices situated in the Granite Building in the city of Rochester on Main and St. Paul streets, said offices being Nos. 706 and 708 in said Granite Building, on the seventh floor thereof; that said Granite Building is properly plumbed and supplied with gas pipes and fixtures for the lighting of the same by illuminating gas. It also alleges that the defendant is & domestic gas and electric light corporation organized under the laws of the State of New York for the purpose of providing illuminating gas and electric light in said city; that it has a gas main along Main street and along St. Paul street, in said city, “ furnishing the building known as the Granite Building in which the plaintiff’s said offices are located, and within one hundred feet of said premises so in part occupied by the jrlaintiff and situate on said streets, and that said defendant has an office for the transaction of business in the said.city of Rochester.”</p> <p>The complaint also alleged that on the 15tli day of February, 1894, the defendant connected the pipes belonging to it and in said street, with the gas pipes in said offices for the purpose of lighting the same, and the plaintiff continued to use said gas so furnished by the defendant for the purposes aforesaid until the 13th day of June, 1894. “ That on the said 13th day of June, 1894, the defendant, without cause or provocation, and without previous notice to the plaintiff, removed the meters so placed in said offices.for the purpose of measuring the gas used by the plaintiff in lighting said offices, and turned off the gas therefrom so that the plaintiff was and is and at all times since the said 13th day of June, 1894, has been, unable to light said offices in said building with the gas so in the mains of said defendant, and, notwithstanding plaintiff has demanded of said defendant that said meters be returned to said offices, and that said company furnish gas to the plaintiff for lighting said offices as theretofore supplied, the defendant has refused and neglected to supply said gas, and still refuses and neglects to furnish the same for lighting said offices as aforesaid, to the great damage of the plaintiff; that at the time of said application and at the time of the removal of said gas meters by defendant as herein set forth, the plaintiff was entirely free from' all obligations' to said defendant and was owing it no sum of money whatever.”</p> <p>The complaint also alleged, “ That on the 22d day of June, 1894, the plaintiff made and presented to the defendant an application in writing to restore said gas meters to said offices for the purpose of lighting the same as theretofore supplied and thereupon in writing, offered to comply with any requirements of said company under the statutes of the state, and that defendant has refused and neglected, and still'refuses and neglects, to restore said meters or to furnish gas for the said offices as aforesaid to the great damage of the plaintiff; that at the time of said application so made as aforesaid on the 22d day of June, 1894, the plaintiff was owing the defendant no sum whatever, having theretofore paid all money due from him to said corporation.”</p> <p>The complaint further alleged that the defendant “ has become liable to pay to the plaintiff the sum of ten ($10) dollars forfeit and the further sum of five ($5) dollars for.each and every day for and during a period of one hundred and thirty-two (132) days to the date hereof, during which defendant has failed to supply-gas to the plaintiff for the purpose of lighting said offices as aforesaid since the removal of said meters and the discontinuance of the supply of said gas as hereinbefore set forth.”</p> <p>The defendant submitted a general denial in its answer and also stated, viz.: “ That plaintiff is indebted to defendant for gas which he refuses to pay for.”</p> <p>Upon the close of plaintiff’s direct evidence the defendant asked for a nonsuit :</p> <p>“ 1. Upon the ground generally that he has failed to. make out any cause of action against the defendant.</p> <p>“ 2. That the application for gas delivered to McSweeney was not .served upon the defendant.</p> <p>“ 3. That the application served did not comply with the statute and was ineffectual to put the defendant in default.</p> <p>“ 4. That at the time of the service of the notice, the plaintiff was indebted to the defendant.</p> <p>“ 5. That at the time plaintiff claimed the penahy was incurred, namely : ten days after the service of the notice, the plaintiff was indebted to the defendant, and consequently the application which he had served was not effective and did not subject the defendant to the penalty provided by the statute.</p> <p>“ 6. That the meters having been taken out by the plaintiff’s consent, in consequence of the disputed bill, the plaintiff did not have the right to demand that the gas be again supplied to him until the dispute was settled.</p> <p>“ Y. That the plaintiff has failed to show that the premises he occupied in the Granite Building Avere within one hundred feet of this gas main.”</p> <p>The motion was denied and an exception was taken. At the close of all the evidence in the case the defendant renewed the motion for a nonsuit on the same grounds, and on the additional ground “ that there is no evidence from which the jury would be warranted in finding that the gas escaped through the negligence or fault of defendant’s employees.” This motion was denied and an exception was taken,</p>

Appeal by the defendant, the Rochester Gas and Electric Company, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the clerk of the county of Monroe on the 20th day of November, 1895, denying the defendant’s, motion for a new trial made upon the minutes. The action was commenced on the 17th day of December, 1894.

<p>Appeal by William S. De Camp, a land owner, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Herkimer on the •31st day of December, 1895, vacating the decision of three commissioners theretofore appointed by- the Supreme Court in .the matter •of laying out a highway and assessing the damages occasioned thereby, and appointing three new commissioners to determine as to the necessity of the proposed highway and to assess the damages ■occasioned thereby, if the road was decided to be necessary, with notice of an intention to bring up for review, upon such appeal, an •order made at the Oneida Special Term on the 5th day of June, 1895, appointing the first commissioners, whose decision was acted upon by the said order entered December 31, 1895.</p> <p>The appellant appealed from the order of December 31, 1895, <c on the ground that the Special Term had no jurisdiction to order a rehearing and to appoint any commissioners in said proceeding.”</p>

<p>Appeal by the defendant, the American Central Insurance Company, St. Louis, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 24th day of June, 1895, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 3d day of July, 1895, denying the defendant’s motion for a new trial made upon the minutes..</p> <p>The action was brought upon a policy of insurance made by the defendant insuring a stock of goods in a store in Buffalo, N. Y., and a judgment was rendered in favor of the plaintiff for $1,559.01 damages and costs.</p>

<p>JSstoppel—must be based on a statement as to an existing fact, not on a promise — the credibility of an interested witnéss is for the jury.</p> <p>In an action.bi'ought to. recover, damages which resulted to certain spruce trees belonging to the plaintiff, from the defendant’s acts in cutting and removing' hemlock timber under ah agreement with the owner of the fee of the premises . upon- which -all the timber grew, it appeared that Joseph Leavitt, who owned about 2,200 acres of woodland, in February, 1889, made -a contract with the plaintiff, by which he sold the plaintiff all the “ spruce timber, from what will ■ make a thirty-foot dock stick and upwards,” on the premises in question.</p> <p>In 1891 Joseph .Leavitt made a contract with the-defendant which provided that the defendant should peel and draw hemlock bark upon the same wood lot, ' 'and cut roads for that purpose, and should have the further right to cut and . remove the hemlock timber from which the bark had bceh-peeled.</p> <p>'The plaintiff claimed that the defendant, in peeling the hemlock bark, in cutting the necessary roads' and'in felling and removing the hemlock timber in the course of the execution of his contract; damaged the spruce timber which the ■; -plaintiff owned under his contract with Joseph Leavitt.</p> <p>The principal question in the case was one of estoppel. Upon this point the foreman of the plaintiff testified in his behalf that, in May or June, 1891, he discovered a man cutting a spruce tree on the premises in question; that he told the defendant about it and stated that other timber had been cut, and that the defendant replied that he would attend to it right away, and that the witness thereupon told the plaintiff of the conversation. The plaintiff testified that he relied upon what the defendant said. It was claimed by the plaintiff that this statement estopped the defendant from asserting that he was not liable for any injury which might have occurred to the plaintiff's spruce trees because of the cutting and removal of the hemlock trees.</p> <p>Held, that an estoppel was not made out;</p> <p>That the defendant made no statement of any existing fact upon which the plaintiff was to rely in shaping his future conduct in reference to the timber; 'That an estoppel in pais cannot be founded upon an agreement to do something in the future;</p> <p>That if, however, the question of estoppel was to be considered, the credibility of the foreman, who gave the testimony which it was claimed constituted an estoppel, and who was an interested party, should be submitted to the jury.</p>

<p>Municipal corporations — charter of Syracuse—extra worh under a contract, involving a change of plan — waiver of a provision that worh exceeding a certain amount should he let by contract and that extra worh should he ordered in writing— acceptance of work by the city and ratification — estoppel.</p> <p>In an action brought to recover upon a contract made, between the plaintiff’s assignors and the city of Syracuse, for the grading of Boyden street in that - city, at certain specified prices for specific parts of the work, the hid of the contractors provided that they would do any extra work upon the written order of the commissioner of public works at its actual reasonable cost to the contractors as determined by the commissioner, plus fifteen per cent of said cost.</p> <p>The contract also provided that the engineer of the city might alter the line and the grade, and that the commissioner of public works might alter the place, form, position, dimension or material of the work, and that if an alteration increased the amount of work, this should be paid for at the price established for such work under the contract, or, if no price was there established, that it should he paid for at its actual reasonable cost; and that all extra work should he done on the written order of the commissioner.</p> <p>The contract also provided that when an embankment was made, it should at the top he of the width of the street from line to line, and that its sides should be sloping of such a slope that the earth would support the embankment.</p> <p>During the progress of the work an embankment became necessary, which, it was found, if constructed as contemplated by the plan, would infringe to a very . considerable extent upon the property of the adjoining owners. These owners would not consent to any encroachment,, and in order to get out of the difficulty, the city officials determined to construct a vertical wall commencing at the line of the street. The city engineer, with the knowledge and consent of the superintendent of public works, verbally directed the contractors to construct a wall and the commissioner certified to the correctness of the claim for the work in his monthly estimate. The common council accepted the estimate, .and ordered the amount paid; but it subsequently ordered the commissioner of public works to make a final estimate, omitting this vertical wall, and it adopted a resolution that the wall was built without proper authority, and that ."the city was not liable for its cost.</p> <p>The charter of the defendant provided in relation to local assessments and improvements that “ whenever the common council shall order any work to be done or materials or supplies to be furnished under the provisions of the foregoing sections of this title, the same shall be done by contract if it shall involve an expenditure exceeding seventy-five dollars, and such contract shall-be let to the lowest bidder.” The defendant contended that, as the extra work was not ordered by the commissioner, of public works, in writing, as required by the contract, the plaintiff could not recover.</p> <p>Held, that this latter provision of the contract could be waived by the commissioner of public works and by the city, and, whether waived or not, the oral direction was ratified and adopted by the commissioner, in writing, which was equivalent to an original authority in writing;</p> <p>That the objection that, as the contract for the vertical wall involved an expenditure exceeding seventy-five dollars, there was no power to order the work without advertising for bids, nor to ratify it after the work had been done, was untenable;</p> <p>That the work in question was extra work, and that the city had ratified the act of the city engineer, acting for the commissioner of public works, in ordering the extra work;</p> <p>That it was not necessary, in order to support a recovery by the plaintiff, that the doctrine of estoppel should be invoked;</p> <p>That, as a general rule, a municipal corporation having, under its charter, general power over local improvements relative to streets, should not be permitted to lie by, encourage contractors to make expenditures, reap the fruit of those expenditures and then be allowed to avoid responsibility by asserting a want of power to do the very things which had been done, and which }t was necessary should be done.</p> <p>Green, J., dissented.</p>

<p>Negligence—a person with impaired sight crossing railroad tracks while there is smoke upon them from another train which has just passed —failure of the railroad company to give signals — right of a blind man to be on a public highway.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the intestate, who was sixty-two years old, was very near-sighted and that his vision was in many ways seriously impaired. At the time of the accident in question, between daylight and dark of a cloudy and misty day, he approached a railroad crossing aoout the time that an express train passed upon the second track in front of him. This train threw down upon the track a heavy cloud of black smoke. The intestate, while the train passed, looked east and west, and then went upon the track nearest to him, when he was struck by an express train which was running at the rate of from thirty-five to forty miles an hour.</p> <p>Several witnesses, who were observing whether it was done, testified positively that no bell was rung nor whistle blown.</p> <p>Held, that there was sufficient evidence of the negligence of the defendant to make that question a proper one for the jury;</p> <p>That the deceased was not shown to have been guilty of contributory negligence, as a matter of law;</p> <p>That while the deceased was required to exercise reasonable care under the circumstances and in view of his infirmities, his impaired vision, and even blindness, did not prohibit him from traveling upon a highway by day or night.</p>

<p>Appeal by the defendant, George Moyer, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Oswego on the 30th day of March, 1895, reciting a previous order made by the same court, at Special Term on the 1st day of September, 1894, directing the defendant George Moyer (the appellant here) to surrender and deliver up to Reuben ÍT. Crandall, a receiver appointed in proceedings supplementary to execution, possession of all his personal property and to convey to the said Reuben A. Crandall, as receiver, all his real estate, and that the said George Moyer had refused to do so,, whereupon the court adjudged that the said Moyer was guilty of contempt of court in refusing to obey said order of September first, and that he pay a fine of seventy dollars to said receiver to satisfy the costs and expenses of the proceedings, and that he be committed to the county jail of Oswego county until such fine be paid and until he executed and delivered, to the said receiver an instrument of conveyance transferring all his personal property to such receiver and assigning and conveying to him all the real estate of the said George Moyer.</p> <p>The notice of appeal further stated, that the appellant intended “ to bring up for review, incidentally, said order so granted and made September 1, 1895, and all proceedings taken upon or under the same, including an order to show cause why the same should not be vacated, set aside or modified upon affidavits made and served, and order thereunder denying such relief.”</p>

<p>Appeal by the defendant in each of the above-entitled actions from a judgment of conviction of the Court of Sessions of the county of Monroe, rendered on the 13th day of March, 1895, convicting him of the crime of grand larceny in the second degree, and of feloniously receiving stolen property, and also from an order entered in the office of the clerk of the county of Monroe on the 13th day of March, 1895, denying his motion for a new trial made upon the minutes.</p> <p>The appeals in these'cases are from two separate judgments of the Court of Sessions of Monroe county convicting the defendants, and from orders refusing a new trial in each case. They were jointly indicted and demanded separate trials. The indictment upon which they were respectively tied contained two counts, one for grand larceny in' the second degree and the other for feloniously receiving the same property which they were charged with stealing in the first count of the indictment, knowing it to be stolen. The first count charged that, on the 11th day of July, 1894, the defendants in the indictment took from the person of one Horace Jeffords the sum of twelve dollars. On the 6th of March, 1895, the defendants were arraigned upon the indictment in' the Court of Sessions of Monroe county, and on the same day the indictment was moved for trial at that court before a jury, and in each case the jury returned a verdict of guilty.</p> <p>Each defendant subsequently made a motion for a new trial, which the court denied, and on the 13th day of- March, 1895, the defendant Kerns was sentenced by the court to be confined in the Monroe county penitentiary for the term of three years. The defendant Slattery.was sentenced to imprisonment in the Auburn State prison for five years. The testimony given by the complainant (Jeffords) was substantially as follows: That on the 11th day of July, 1894, he met the defendant Michael Slattery in a saloon on Stone street, in the city of Rochester; Slattery said he knew where Jeffords could make a trade-for his pony and get five dollars, and Jeffords said he would give him half ; then the parties got into a wagon; Slattery drove the horse; they went to the southwestern part of the city; turned into a vacant lot; Jeffords asked Slattery what he was going to do there; Slattery reached over and took him by the coat and said : “ All I want of you" is your money.” And Jeffords continues : “ I told him to let go, and he hung to my left arm, and the defendant (Kerns) grabbed me by the right arm; the first that I saw of Kerns was when he grabbed me by the right arm; * * * they dragged me perhaps a half a rod and kept putting their hand in my pocket and pulled out my pocket-book, and Slattery said, ‘ If you holler or make any noise, we will kick your brains out.’ They threw me down and when I got up they were not a rod from me, and Slattery said, ‘ We have got quite a bundle. * * * ’ I had about twelve or fifteen dollars.”</p> <p>Each defendant was sworn in his own behalf and denied the transaction in the vacant lot, and gave some evidence tending to show that he was not at the place where the robbery occurred. There was not a particle of evidence in the case (and the record before us assumes to contain all of the evidence given on both trials) that either of these defendants received any money or thing knowing it to be stolen, and it appears conclusively that the defendants were either guilty of the transaction detailed in Jeffords’ evidence above given or not guilty at all.</p> <p>Upon the trial of Slattery there was no motion to discharge the defendant as to the second count in the indictment nor any request to the court to charge the jury that he could not be convicted upon that count, and the attention of the trial court was in no manner called to any such matter, and the learned trial judge charged the jury, in substance, that if they convicted the defendant Slattery they must find him guilty upon the first, count of the indictment.</p> <p>In the case of Kerns, however, when the People rested, the counsel for the defendant moved that, so far as the second count in the indictment was concerned, the defendant be discharged upon the ground that there was no evidence tending to show that he had received stolen property. This motion was denied by the court and the defendant excepted. The court in its charge to the jury in that case did not eliminate the question of the second count from the consideration of the jury in terms, but the whole effect of the charge in reviewing the evidence was applicable to the first count alone, and there was no suggestion in the charge, specifically, that Kerns could be convicted upon the second count, that is, of receiving stolen property, but the jury came into court and rendered a verdict of “ guilty as charged in the indictment.” The verdict in the case of Slattery was a general verdict of guilty.</p> <p>The court in sentencing Slattery stated that he sentenced the defendant upon the first count of the indictment.</p>

Appeal by the plaintiff, George L. Pratt, from an order of the Supreme Court, made at the Erie Special Term, and entered in the office of the clerk of the county of Orleans on the 26th day of February, 1896, denying his application for an order requiring the defendant receiver to make a reassessment upon the members of said defendant. The defendant was a mutual insurance company, organized under chapter 362 of the Laws of 1880, as amended by chapter 171 of the Laws of 1881.

. Appeal by Homer E. Dudley, as temporary receiver of The Gies Lithographic Company, from an order made at a Special Term of the Superior Court of Buffalo, and entered in the office of the clerk of said court on the 31st day of December, 1895, which orders and adjudges that an execution issued out of the County Court in favor of the plaintiff in an action- wherein George Bleistein, as president of the Courier Company is plaintiff,' and • The Gies Lithographic Company is…

Appeal by the defendant, Frank Lytle, from a judgment of the Court' of Sessions of Monroe county, entered in the • office of the clerk of Monroe county on the 13th day of April, 1895, upon the verdict of a jury convicting him of the crime of burglary in the third degree ; also from an order entered in said clerk’s office on the 1st day of April, 1895,, denying the defendant’s motion to quash, dismiss and set aside the indictment herein on the ground that an unauthorized…

Motion by the defendant, The Hartford Fire Insurance Company, for' a new trial on the case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the ver-. diet of a jury rendered by direction of the court after a trial at the Monroe Circuit on the 9th day of January, 1896.

Appeal by the defendant, the Rochester 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 Monroe on the 17th day of October, 1895, upon the verdict of the jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 17th day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.