Volume 7 — New York Supplement

On demurrer to answer. Action by Morris Littman against Mary M. Coulter, administratrix of Thomas Coulter, for rent. Defendant set up in her answer a counter-claim for conversion of property by plaintiff. Plaintiff demurs to said counterclaim.

<p>Wills—Probate—Parties—Executors.</p> <p>Though under Code Civil Proc. If. Y. § 3614, et seq., providing that an executor, devisee, or any other person interested in the estate of the alleged testator, may present a petition for probate of a will, and providing also for the citing of husband, wife, and other persons, but not an executor, the executor is not a necessary party to the probate of a will, yet where the parties are cited and appear, on a petition filed by the executor, he cannot discontinue the proceedings without the consent of all, especially after he has appeared and examined witnesses.</p>

<p>Interpleader—Bank Deposits.</p> <p>In an action against a bank for certain moneys of which plaintiff claims to have been the actual depositor, where such deposits were made by and in the name of a third person, in whose name the bank-book was also issued, and whose personal representative claims the fund, and plaintiff ostensibly appears to be a stranger to the contract between such depositor and the bank, defendant’s motion for inter-pleader will be granted, though plaintiff will be thereby precluded from introducing evidence which she might have used in the action against the bank.</p>

At chambers. On motion for interpleader. Action by the Progressive Handlanger Union Ho. 1 against the German Savings Bank, to recover certain deposits made with defendant. The Laborers’ Union Protective Society Ho. 12, prior to the commencement of this action, had made a demand upon defendant for such funds.

Action by John L. Pryor against Hubbard A. Foster, for damages for false representations made by him in regard to the heating capacity of a furnace in a house leased from him by plaintiff. Judgment for plaintiff, and defendant appeals. For opinion on former appeal, see 1 H. Y. Supp. 774.

Action by Leopold Schwartz and others against Eliza E. Allen and others, to foreclose a mechanic’s lien for a furnace put in a building while it was-being constructed. Defendants denied the right of lien for that class of work or materials, objected to the verification of notice of lien as insufficient, and alleged payment of the debt.

<p>Mutual Benefit Insurance—Trust to Pat Debts.</p> <p>Money due on a beneficiary certificate, made payable to a third person for the purpose and with the understanding that it shall be applied in payment of the debts and funeral expenses of the assured, is impressed with a trust to that effect, which equity will enforce.</p>

On motion for a new trial. Assumpsit by Thomas Tigue against Caroline Annowski to recover $200 loaned to her through her son, John R. Annowski, as her agent. Judgment for plaintiff, and defendant moves for a new trial.

The action was brought by Margaret Dexter, to restrain Randolph Beard, defendant, from encroaching upon, incumbering, or building upon a certain right of way appurtenant to the plaintiff’s premises in the village of Cortland; and the decision at special term orders an abatement or removal of the encroachment or obstruction placed in the lane.

Action by Mary Fox against the Onondaga County Savings Bank, to recover $1,613.10 and interest, deposited with defendant, a savings bank doing business at Syracuse, ÍT. Y., and as the plaintiff alleges never repaid to her by defendant, or drawn out upon her order, or by her authority.

Action brought by Hannah M. VanEpps against Simon Clock and John Wells, to compel the specific performance of a verbal contract made by defendant Simon Clock to sell a certain parcel of real estate to plaintiff, upon the ground that she entered into possession under the contract, and partly performed the same.

Action by Charles Cleveland to recover for the alleged negligence of defendant, the New Jersey Steam-Boat Company, a common carrier of passengers, which occurred on the 8th of September, 1873, causing injuries to the plaintiff after he had become a passenger on one of the boats of defendant at the harbor in New York city, just as the boat was about to leave for the city of Albany. Verdict for plaintiff for $3,000.

On action for partition. Action by William B. Greene against John B. Greene and others, heirs of William H. Greene, deceased, for partition of two pieces of land, plaintiff claiming the undivided one-fifth of one piece as heir of decedent, his father, and one-fifth of the other piece by virtue of an antenuptial agreement executed by his father to trustees, for the use of plaintiff’s mother during her life, and the remainder in fee to the heirs of her body.

Action on attachment bond, given to secure the release of a vessel which had been attached under a lien for labor and materials furnished for repairing it, by Henry B. Kenyon and George J. Kenyon against Enoch Covert and Thomas G. Miller. Covert was the owner of a steam-yacht. Miller was a surety for Kenyon on the attachment bond. Judgment for plaintiffs, and defendants appeal.

Action by William Barry against Orson Coville and Gabriel A. Morris, impleaded with the Syracuse Bolt Company, for an accounting and reassignment'of certain patented inventions alleged to have been assigned by plaintiff to defendants Coville and Morris. By the instrument of October 2, 1884, referred to in the opinion, plaintiff assigned all his interest in certain patented inventions.

Action for damages and for an injunction, by Francis M. Robinson against Charles W. Smith and Hiram Ellsworth. Plaintiff is the owner of a house and lot situated on Leatherstocking street, in the village of Cooperstown, and defendant Smith is the owner of premises fronting on Chestnut street, adjacent to the premises of the plaintiff on the east.

<p>Highways—Establishment by Statutory Proceedings—Jury,</p> <p>Under Laws N. Y. 1881, e. 696, providing for a jury of 12 men to certify to the necessity of altering and laying out highways, and prescribing their qualifications and manner of selection, where the names of 12 men are drawn, but 1 is disqualified, the other 11 are not a qualified jury within the meaning of the statute, and their acts as such are void, though the statute also provides that it is sufficient if 9 or more of the jurors act.</p>

On demurrer. Action by Judson G. Wells against Thomas R. ICnox, as assignee, for the settlement of his account as attorney for the insolvent estate.

Bill in equity, by Henry Abegg against Emanuel Schwab and one Lilienthal, to set aside certain judgments confessed by defendant Schwab to protect certain creditors, and also an assignment of all his property as fraudulent.

<p>1. Confirmation of Award—Decree—Limitation of Action.</p> <p>A confirmation, by a court, of an award for damages for property taken to widen a street, is a decree, and, under Code Civil Proc. It. Y. § 376, an action may be brought on it at any time within 20 years.</p> <p>2. Municipal Corporations—Liabilities—Interest.</p> <p>Interest will begin to run on a claim against a municipal government only from the time of a demand for payment.</p> <p>Appeal from special term.</p> <p>Action by Owen Donnelly against the city of Brooklyn. Judgment was rendered for plaintiff, and defendant appeals.</p>

On demurrer to complaint. Action by Eugene O’Sullivan against the New York Elevated Bailroad Company and the Manhattan Bail way Company.

<p>t. Limitation or Actions—Amendment op Statute—Retboactive Laws.</p> <p>Code Civil Proc. N. Y. § 401, provided that “if after a cause of action has accrued against a person he departs from and resides without the state, or remains continuously absent therefrom for the space of one year or more, the time of his absence is not a part of the time limited for the commencement of the action. ” After an action had been commenced, but before trial, the section was amended by the act of June 4,1888, so as to require the debtor not only to be a non-resident of the state, hut to he absent therefrom. Held, that as the effect of the application of the amendatory act to the pending action would be to deprive the plaintiff of a cause of action which was valid when the action was commenced, the amended statute- could not operate retroactively without violating the constitution of the United States, prohibiting the states from passing laws impairing the obligations of contracts.</p> <p>3. Same—Absence fkom State.</p> <p>A debtor who removes from the state before a cause of action against him has been barred by limitation, and who continues to be a non-resident, cannot during that time, by temporary returns to the state, put the suspended statute again in operation.</p>

<p>Proceedings for an accounting by David W.JHpp and another, executors of Hannah M. Blakeney, deceased.</p>

Action for an injunction by J. Morris Childs and another against Willis H. Tuttle and others. A preliminary injunction was granted, and a motion to vacate it was subsequently made and denied. From the order denying the defendants’ motion to vacate the injunction Willis H. Tuttle appeals.

Action of replevin by George Morris and Edmund Lewis against Edwin M. Wells, assignee of Scoville & Eoe, to rescind a contract of sale made to-his assignors, on the ground that the sale was induced by the fraudulent misrepresentations of the latter, and to recover the goods sold. Judgment was-rendered against the plaintiffs, and they appealed.

<p>Evidence—Parol to Vary Writing.</p> <p>A promissory note was given “for the privilege of advertising purposes of one panel, cacti 7x33 incti.es, in 15 cars ” oí a certain railway, but was silent as to how such privilege was to be enjoyed. Held, that the note was ambiguous in this respect, and that paroi evidence was admissible to explain the ambiguity.</p>

<p>Evidence—Parol to Vary Writing.</p> <p>Where a note payable unconditionally has been given in consideration of an absolute assignment of a claim against third persons, evidence of an oral agreement that the note was not to be operative unless.the money was realized on the assignment is inadmissible, such a condition being inconsistent with the writings.</p>

<p>Appeal from trial term.</p>

Action by Mary Rich against John Mayer for breach of marriage promise. Defendant appeals from a judgment for plaintiff, and from an order denying a motion for a new trial on the ground of newly-discovered evidence.

<p>Appeal from trial term.</p> <p>Action by Shirley J. Green against üSToah B. Shute, impleaded with others.</p>

<p>1. Taxation—Taxable Property.</p> <p>Rents not due on leases for years are not taxable as personal property.</p> <p>2. Same.</p> <p>Debts, securities, and obligations are taxable, though they are not due.</p> <p>3. Same.</p> <p>The fact that the owner of personalty changed it into real estate, and then executed leases for years thereon in order to avoid taxation on personal property, does not affect the assessment, which must be governed by the legal position of the property at the time thereof.</p> <p>4. Same—Review of Assessment.</p> <p>A tax assessment may be reviewed on affidavit, though an examination is also allowed.</p> <p>6. Same.</p> <p>An assessment is presumed to be correct only until the contrary is shown.</p> <p>6. Same—Costs.</p> <p>Laws N. T. 1880, c. 369, § 6, provides that “costs shall not be allowed against assessors or other officers whose proceedings may be reviewed under this act, unless it shall appear to the court that they acted with gross negligence, in bad faith, or with malice. ” Held, that where it did not appear that assessors, in making up the assessment roll, acted otherwise than in good faith, costs on review could not be taxed against them.</p> <p>7. Certiorari—Pleadino.</p> <p>A petition for certlora/ri, which clearly states the grounds of the complaint, should not be quashed because it also sets out other grounds not material to the questions involved.</p>

<p>1. Costs—Witness Fees—Affidavit.</p> <p>Under Code Civil Proo. N. Y. § 3267, providing that witness fees cannot be allowed without an affidavit stating the number of days of actual attendance, and the distance for which travel fees are allowed, affidavits failing to state the distance the witnesses severally resided from the place of trial are insufficient.</p> <p>2. Same—Indemnity Bond.</p> <p>Where an application for postponement of trial is granted with an order that plaintiff! indemnify defendant for costs in preparation for trial, such order includes witness fees paid out, which were rendered ineffectual by the postponement, and also fees paid witnesses' who did not attend court, where the latter cannot be recovered back.</p>

<p>Deceit—False Representations—Scienter.</p> <p>In an action for false and fraudulent representations on the sale of a horse, it is necessary to prove that defendant knew of the defect, or had reason to believe that it existed.</p>

Action by Sarah S. Chellis against John B. Chapman, for a breach of promise of marriage.

<p>1. Compounding Felony—Evidence—Minutes of Magistrate.</p> <p>In an action on a note, where the defense is made that it was given in consideration of an agreement to compound a felony, statements by the prosecuting attorney, contained in the minutes of the magistrate who conducted the preliminary examination into the felony, are not admissible to prove such an agreement to compound by the plaintiff.</p> <p>2. Same—Embezzlement—Agreement to Refund.</p> <p>A promise by a father to repay money embezzled by big son is not in itself an agreement to compound a felony.</p> <p>3. Witness—Privileged Communications—Waiver.</p> <p>• Under Code Civil Proc. N. Y. § 836, allowing a person to waive the right of having his communications with his counsel kept secret, a party may call his counsel to testify to conversations between them.</p> <p>4. Same—What are Privileged.</p> <p>A communication to his counsel by one party, in the presence of the other, is not privileged.</p> <p>5. Evidence—Parol.</p> <p>An admission contained in a letter may be explained by paroi evidence.</p> <p>6. Appeal—Review—Exclusion of Testimony.</p> <p>Where there is a conflict of testimony, the erroneous exclusion of any testimony, bearing on the merits, is cause for reversal.</p>

<p>1. Trial—Findings by Court.</p> <p>Where the court, under Code Civil Proo. NT. Y. § 1023, providing that it must determine the facts of the case which are submitted to it by either party, has found that certain conveyances are not fraudulent, it is not required to determine the truth of facts tending to show fraud.</p> <p>2. New Trial—Surprise—Discretion of Trial Court.</p> <p>The question of a new trial on the ground of surprise is largely within the discretion of the trial court.</p>

<p>Bdegdaey—Indictment—Desceiption op Peemises.</p> <p>Under Pen. Code N. Y. § 498, providing that a person who, “with intent-to commit a crime therein, breaks and enters a building, or a room, or any part of a building, ” (defined by section 504 to include an “inclosure, ”) is guilty of burglary in the third degree, an indictment which alleges that accused broke and entered certain “stove-works, ’’without stating that the works were a building, or a room, or a part of a building, is defective, and the defect is not such “an imperfection in matter of form” as is cured by Code Grim. Proc. N. Y. § 285.</p>

Application by William S. Kennedy, as receiver, for a postponement of the trial of a cause against Jacob C. Wood and others. Code Civil Proc.

<p>Pleading—Answer.</p> <p>An answer denying “the said complaint in each and every allegation therein-contained ” is not frivolous.</p> <p>Appeal from special term, Warren county.</p> <p>Action by the people of the state of New York against George W. Tunnicliffe for penalties for violating game laws of New York. Laws 1879, c. 534, § 19. After answer by defendant, plaintiff moved for judgment on the ground’ that such answer was frivolous. The court awarded judgment for plaintiff unless defendant amended his answer. Defendant appeals.</p>

<p>Sheriffs and Constables—Failure to Execute Writ—Evidence.</p> <p>In an action against a sheriff for neglecting to arrest a judgment debtor qn an. execution against Ms person, evidence of directions given by plaintiff to a former-sheriff as to another execution against the debtor, on the same judgment, is inadmissible.</p>

Pitch made a general assignment to Preston in November, 1884. Before that time, Mrs. Anderson had given Pitch several promissory notes in payment of goods sold, amounting to over $13,000. Held: but supposed they were held by Fitch. The notes were spoken of when the mortgage was given, and there was no other indebtedness of Mrs. Anderson to Fitch than these notes. Preston, the assignee, subsequently foreclosed the mortgage and obtained $4,284.46 as the net proceeds.

<p>Evidence—Competency.</p> <p>In an action on account, a letter writen by a third person, material to the issue, and calculated to prejudice the jury, which is a mere unverified statement, for the admission of which no foundation is laid, is inadmissible, over objection.</p>

Action by Anna M. Clark against Perry W. Eldred. Judgment was rendered for defendant, and new trial afterwards granted to plaintiff on certain conditions. From the part of the order imposing conditions plaintiff appeals.

Code Civil Proc. H. Y. § 2437, cited in the opinion, provides for the arrest of judgment debtors upon proof and affidavit. The affidavit, it is declared, must recite “that the judgment debtor will leave the state, or conceal himself, and that there is reason to believe that he has property which he unjustly refuses to apply to the payment of the judgment.”

<p>Pleading—Amendment—Furtherance of Justice.</p> <p>Where the complaint alleges a gift inter vivas, and evidence is introduced, without objection, showing a gift causamortis, an amendment of the complaint to conform to the proofs is in furtherance of justice, within Code Civil Proc. N. Y. § 783, and was properly allowed.</p>

Action by John H. Clapp against John Collins and others. Defendants appeal from a judgment on a verdict directed by the court for plaintiff.

<p>Supplementary Proceedings—Arrest op Non-Resident Debtors.</p> <p>On proof that a non-resident judgment debtor has property in, and is about to leave, the state, a warrant of arrest may issue in supplementary proceedings, as provided in Code Civil Proo. N. Y. § 3437; such proceedings being made applicable to non-residents by section 3458, subd. 3.</p>

Action by Mary Oliwill against Daniel Verdenhalven, to recover $5,000 for personal injuries, received through the negligence of defendant and his employes, in the management of a tenement house owned by defendant. Defendant interposed an answer denying the negligence charged.

Laws H. Y. 1880, c. 269, provides that the supreme court may allow a writ of certiorari on the petition of any person or corporation assessed and claiming to be aggrieved, to review an assessment, when the petition shall set forth that the assessment is illegal, specifying the grounds of such illegality, or is erroneous by reason of overvaluation, or is unequal, etc.; and, if it shall appear by the return to such writ that the assessment is illegal or erroneous, the court…

<p>Appeal from circuit court, Bensselaer county.</p>

<p>1. Assignment for Benefit of Creditors—Preference of Fictitious Claims.</p> <p>Where a firm was known to be insolvent by the partners, and one of them retired from it,' selling his interest to the remaining partner for his notes for $3,500, which notes were afterwards preferred in an assignment'by the remaining partner, the assignment is fraudulent.</p> <p>3. Same—Proof of Fraudulent Intent.</p> <p>In an action to set aside an assignment, facts showing that assignor bought goods of plaintiffs with intent not to pay for them are admissible to prove the intent with which the assignment was made, even though judgments have been recovered for the price of the goods. Martin, J., dissenting.</p> <p>8. Same—Finding of Referee—Review.</p> <p>A finding of a referee, from conflicting evidence, that an assignment is fraudulent, will not be disturbed on appeal.</p>

Action by Harriet M. Wait, as executrix of the will of W. Howard Wait, deceased, and others, against Sarah Ann Cerqua and A. E. Cerqua, to compel defendants'to take title to land.

Action by Hanson Williams against Eliphalefc Aylesworth on the following note: “$100.00. Peterboro, April 10th, 1875. Five years from date we jointly and severally promise to pay. E. Aylesworth, or bearer, the sum of one hundred dollars, with annual interest, for value received. Gurnsey 1 Hardy. Bertram.Hardy.” Indorsed: “Peterboro, March 9th, 1879. I guaranty the collection of the within note. E. Aylesworth. ” Judgment was rendered for plaintiff, and defendant appeals.

Theodore L. Pomeroy had for some years prior to his death carried on a manufacturing business in Massachusetts with his son Silas H. as his partner, under the name of L. Pomeroy’s Sons.

<p>Office and Officer—Appointment—Union Soldiers.</p> <p>Under Laws N. Y. 1887, c. 464, providing that honorably discharged Union soldiers shall be preferred in municipal appointments, where it appears that though an applicant possessed all the qualifications entitling him to preference required by the statute, and was fully competent to discharge the duties of the office applied for, the mayor refused to appoint him, mandamus for the appointment will issue to the mayor, who has no discretion in the matter.</p>

Action on a bond of indemnity, executed by Tefft, Weller & Co., as principals, and by Andrew J. Shively, Thomas It. Armstrong, and Edward H. Branch, as sureties, to the plaintiff, as sheriff of the county. The bond re-, cites the recovery of a judgment by Tefft, Weller & Co. against Adolph Yon Der Linden for $2,174.73, the issuing of an execution thereon to the sheriff, and that certain personal property, apparently the property of the judgment debtor, was claimed by others.

term. Action by William H. Delany against John B. Van Derveer. The complaint alleged that defendant agreed to deliver to plaintiff 10 shares of stock in the American Baking Powder Company for $400; that pursuant to this agreement plaintiff paid the purchase price, $400, and thereafter demanded his stock, which defendant refused to deliver.

Action by Jacob Fassbender against the Western Transit Company to recover a balance due on freight transported by plaintiff from place of shipment to Buffalo. Defendant pleaded recoupment for damage to freight, and for shorage. Trial by jury, and verdict for plaintiff. From the judgment entered on the verdict defendant appeals.

Action by Charles Freese against John Veith, on a promissory note. Defendant pleaded counter-claim and set-off. Testimony was taken before a referee, on whose findings judgmentfwas entered for defendant, from which judgment plaintiff appeals. '

<p>Action for an injunction by James J. Rudolph, president of the Southern Beneficial League, against the Southern Beneficial League.</p>

<p>1. Contracts—Proof.</p> <p>Plaintiff sought the recovery of money which he alleged he had loaned to a corporation through F., its president. The latter claimed that the money was advanced in pursuance of an agreement to purchase of him a controlling interest in the stock, of the corporation, and that plaintiff not being able to raise the required amount, the arrangement was abandoned, and a settlement was had. A receipt in full of all plaintiff's claims against the.president was shown. Plaintiff denied that the receipt was given for any part of the money sought to be recovered, but he was not corroborated; and, while P.’s character was impeached, his testimony was corroborated by other witnesses. It also appeared that subsequent to the alleged loan a meeting of the trustees of the corporation was held, at which plaintiff, who was a trustee, was present, and negotiations were entered into by a third party to secure control of the corporation, and pay its debts; that a list of the debts of the corporation was handed to such third party, in which no claim was mentioned as due to plaintiff; that the latter asserted no such claim; and that the negotiations-were completed in reliance npon such list. Held, that a judgment for plaintiff could not he sustained.</p> <p>2. Same.</p> <p>At the time of the arrangement entered into between plaintiff and F., the latter had pledged more than one-half of the entire stock of the corporation for debts, and it was part of the arrangement, as F. testified, that he should obtain stock enough to enable him to transfer a majority of it to plaintiff. Held, that the stock-transfer hook was admissible to show the date of the transfer of stock to F., which-he alleged he had purchased in pursuance of the agreement.</p> <p>Ingalls, J., dissenting.</p>

Action by John C. Mahr and others against Charles H. Bartlett and the Norwich Union Pire Insurance Company. Judgment was rendered for plaintiff, and the insurance company appeals.

John Spence sued Wayne Griswold to foreclose a mechanic’s lien. It appeared that Griswold, against whose name the lien was filed, was not the owner of the premises, but that the same were owned by Griswold’s wife, Anna L., who during the pendency of this action sold them to Mary Hopkins. Plaintiff moves to substitute Anna L. Griswold and Mary Hopkins as defendants in the stead of Wayne Griswold.

<p>Petition for writ of habeas corpus.</p>

<p>1. Live Insurance—Conditions oe Policy—Acceptance ot Overdue Premium.</p> <p>A policy of life insurance stipulated that upon a failure to pay any premium when due the policy should become void. There was such a failure, and, upon a tender of the amount thereafter, the insurer accepted it, and gave a receipt, which stated that it was accepted upon condition that the insured was of temperate habits, and in as good health as when the policy was issued; otherwise the payment and receipt and the original policy should be void. Such acceptance and receipt were provided for in the constitution and by-laws of the insurance company, which were made a part of the original contract of insurance. Held, that such payment and receipt constituted a new contract, by which insured was bound, whether he read the receipt or not; and, it appearing that he was not at that time of temperate habits, nor in as good health as when he was originally insured, the receipt was of no effect, and the policy remained void.</p> <p>S. Same—Waiver.</p> <p>The insurer does not waive such forfeiture by requesting proofs of the death of the insured and giving instructions in regard thereto.</p>

On motion to amend demurrer, and on demurrer to counter-claim. Action for rent by William Rhinelander against George S. Martin. Defendant answering, admitted the rent due, and counter-claimed. Plaintiff demurred to the counter-claim on the ground that it did not state facts sufficient to constitute a cause of action, and subsequently moved for leave to amend the demurrer by adding that the counter-claim was not one of those specified in Code Civil Proc. H. Y. § 501.

<p>On motion to vacate an attachment.</p>

<p>1. Execution—Against the Person—Release of Debtor.</p> <p>Under Code Civil Proc. N. Y. § 572, amended by Laws 1886, c. 672, providing that, if plaintiff neglects to issue execution against the person of defendant within 101 days after the return of the execution against his property, or whenever it shall appear to the satisfaction of the court that plaintiff is endeavoring to use the mandate for the purpose of oppressing the debtor, defendant must, on his application, with notice to plaintiff, be discharged from custody, if already taken under the mandate; or, if he has not yet been imprisoned, be relieved from imprisonment by virtue of the mandate, unless reasonable cause is shown why the application should not be granted, failure to issue execution is not excused by the engagements of plaintiff’s attorney.</p> <p>2. Same—Supersedeas— Application.</p> <p>Under the statute, as amended, defendant need not be in actual custody in order to make the application for supersedeas of the execution.</p> <p>3. Same—Discretion of Court.</p> <p>The power of the court being discretionary, the application for supersedeas will be denied when it appears that the adverse party has been vigilant in asserting his rights.</p> <p>4. Same—Right to Supersedeas.</p> <p>The remedy is afforded by the statute to defendant alone, and relief cannot be granted to a plaintiff against whom costs have been decreed.</p>

Action by Mary Timlin, as administratrix of John Timlin, deceased, against the Standard Oil Company, the Acme Oil Company, Elijah W. Murphy, and Orlando P. Liseomb. Judgment was rendered for plaintiff, and defendants appeal. The plaintiff complained that John Timlin, her husband and intestate, was, on the 12th day of September, 1885, killed by the falling of a brick wall upon him; that-the fall of the wall was due to the negligence of the defendants.

<p>Appeal from circuit court, Bichmond county.</p> <p>Action by Constantine W. Benson against Henry D. Townsend and others. Judgment was rendered for defendants, and plaintiff appeals.</p>

<p>Towns—Town Boahd—Mandamus.</p> <p>Under Laws N. Y. 1869, c. 855, amended by Laws 1874, c. 260, providing that the town board shall meet on the first Monday of September, to determine what amount, if any, shall be borrowed on the credit of the town, and for what roads or bridges such amount shall be borrowed or appropriated, an adjournment of the board without determining the amount is equivalent to a refusal—which is within their discretion—to borrow any amount, and they cannot be compelled by mandamus to meet and come to a formal conclusion.</p>

<p>Foreign Corporations—Service of Process.</p> <p>Under Code Civil Proc. N. Y. § 482, subd. 3, providing that in the absence of the principal officers of a foreign corporation service may be made on a managing agent “within the state, ” service on the general manager of a foreign corporation, while within the state temporarily, and not performing the duties of his office, is sufficient.</p>

At chambers. On motion to vacate order for examination. Action by Isaac Y. Brokaw against Delos E. Culver, Ann L. Culver, and Benjamin 13. Kirkland, to recover damages for the alleged fraud of the defendants in inducing the plaintiff to purchase alleged worthless securities. The plaintiff obtained an order for the examination of the defendants, for the purpose of enabling the plaintiff to frame his complaint.

Action by Henry Harbeck against Sarah Catharine Pupin and others, executors of one Agate, to charge his estate with a debt of a copartnership of which he was a member on a promissory note made by the copartnership before his death. The complaint alleged the making of the note; the entry of a judgment by confession in favor pf the plaintiff and against the members of the firm except Agate; the issue of an execution on the judgment; and the return of the same unsatisfied.

<p>At chambers. On motion to punish defendant for contempt.</p> <p>Action for a divorce by Margaret J. Cockefair against William F. Cockefair. Plaintiff recovered, and a judgment was entered against defendant for costs, which he failed to pay. Plaintiff now moves to punish defendant for contempt.</p>

At chambers. On motions to make a new party plaintiff, and to interplead. Bronk Van Loan sued Mary J. Squires and others to foreclose a mortgage. A sale was had, which was subsequently set aside, and Mary E. McKinley and M. Louise Jarvis were made new defendants. Simon Stern now moves to be substituted as plaintiff, claiming to be the assignee of the bond and mortgage, of which M. Louise Jarvis also claims to be the owner.

William G. Perris became the owner of premises subject to a mortgage, which was subsequently assigned to him, with a provision therein that the same was sold to him “as a muniment of title, and not to merge in the fee of the land covered thereby, which is now owned by the said party of the second part.” It was alleged by the plaintiff in his complaint that Perris “entertained a feeling of doubt and uncertainty in respect to the fact whether or not any defect existed in his…

Action by Henry W. Wedge against Thomas Spencer. Defendant appeals from an order denying his motion for a new trial on the minutes.

Action by Bomeyn B. Ayres against the village of Hammondsport. He-fen dan t appeals from a judgment on a verdict for plaintiff and from an or■der denying a motion for a new trial upon the minutes.

<p>Appeal from Erie county court.</p> <p>Action by Anthony W. Yoltz against Benton H. Wilson and Homer Yan Buskirk. From a judgment on a verdict for plaintiff, defendants appeal.</p>

. Action by Arthur G. Yates against James J. Guthrie. A judgment was entered against defendant by default, and from an order denying a motion to set the judgment aside defendant appeals.

<p>Limitation of Actions—Negligence—Physicians.</p> <p>An action against a physician for negligent treatment of a patient is “an action to recover damages for a personal injury resulting from negligence, ” within Code Civil Proc. N. Y. § 383, subd. 5, providing that such actions must be brought within three years, though the physician was treating the patient under a contract.</p>

<p>Reference—Report—Review on Appeal.</p> <p>Where there is evidence to sustain a referee’s findings, and there are no exceptions to bis findings, or requests to find differently on the evidence, a judgment entered on the report of the referee will not be disturbed on appeal.</p>

Action by the Kokomo Straw-Board Company against Louis Sachs. Pending an appeal from a judgment for plaintiff, defendant appealed from an order directing the treasurer of that county to pay to the plaintiff the sum of $250, previously deposited with such treasurer, in pursuance of an order of this court, as security for costs in this action.

<p>Appeal from special term, Erie county.</p> <p>Appeal by Eliza Glenn, Louisa 0. Burrows, and others, from an order confirming the report of the referee touching the allowance and disallowance of certain claims against the estate of Boswell S. Burrows.</p>

Action by Jacob Sallade against Charles A. Gerlach, T. S. Philips, and P. Herdie. Defendant Gerlach appeals from a judgment entered on a verdict directed by the court, and also from an order denying his motion for a new trial.

Action by Abraham Frank against Sarah J. Brewer, as executrix of Robert McClure, to recover money paid on a promissory note, whereof plaintiff was an accommodation maker, and defendant’s testator was the payee. There was a judgment upon a verdict for the plaintiff, and defendant appeals.

Action by Michael Hogan against Charles H. Carroll and others, for breach of contract of employment. Trial by jury, and a verdict for plaintiff. From the judgment entered on the verdict, from an order denying a motion for a new trial on the minutes, and from an order denying a motion for a new trial on a case, and affidavits on the ground of newly-discovered evidence, defendants appeal.

Action by Ernest Valentine againt Lewis Kelly, to recover for wages. Trial by jury, and verdict for plaintiff in justice’s court, on which judgment was entered. From the judgment of the county court, affirming the judgment of the justice of the peace, defendant appeals.

Action by Alexander O. Beed and another against James C. Fargo, president of the American Express Company, for damages for the breaking of a sewing-machine, which defendant had contracted to transport from Waterloo, H. Y., to Auburn, H. Y. Judgment for plaintiffs, affirming a judgment of a justice of the peace. Defendant appeals.

<p>Appeal from circuit court, Erie county.</p> <p>Action by the Bank of Commerce of Buffalo against Sarah Cohen and another. ' Judgment for plaintiff, and Sarah Cohen appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Fred P. Wilcox against the city of Rochester, to set aside a tax levied against plaintiff. Judgment was entered for plaintiff, and defendant appeals.</p>

<p>Partnership—Retiring Partner—Limitation of Actions.</p> <p>In an action on a debt contracted by a partnership, which was subsequently dissolved, one of the partners assuming all the debts of the firm, the retiring partner pleaded the statute of limitations. The court, at the request of defendant, charged the jury that after the dissolution the surviving partner could not bind the other by promise or part payment of the debt. Beld, that this was not prejudicial error, where the court finally charged that the only question was whether plaintiff brought his action within six years after he had notice of the dissolution.</p>

Action by Jonathan Chamberlain against the town of Wheatland, for injuries caused by the obstruction of a highway. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial

Action by Robert J. Smith and Thomas H. Smith against Margaret Smith, to cancel a deed of land. J udgment was rendered for plaintiffs, and defendant appeals.

<p>Motion for new trial on the minutes.</p> <p>Sebastian G. Brinkman sued H. S. Eisler on a contract. Verdict for plaintiff, and motion for a new trial by defendant. °</p>

Action by John H. Maginnis, an infant, by his guardian ad litem, against the city of Brooklyn. Judgment for defendant, and plaintiff appeals. For former report, see 11ST. Y. Supp. 522.

<p>Appeal from trial term.</p> <p>Action by Louisa Jucht against Dorothea Behrens for personal injuries. The complaint' was dismissed, and plaintiff appeals.</p>

Action by William P. Pickett, as assignee, against Ada F. M. Gollner to enforce a mechanic’s lien. Judgment for plaintiff, and defendant appeals. Laws it.

<p>Application for the probate of the will of James O’Neil, deceased.</p>

<p>Wills—Undue Influence.</p> <p>Where a testator’s love for his wife and her children by a former marriage was strong, it is no evidence of undue influence on their part that by his will he made ample provision for their support.</p>

<p>Specific Performance—Sale of Lease—Title of Vendor.</p> <p>A contract to buy a lease of premises known as “75 Fourth Avenue” cannot he enforced where it appears that one wall of the building in question is not on the demised premises, as the vendor’s title is to that extent defective.</p>

Action by Edward J. Bosworth against Edward E. Higgins, for breach of contract on sale of a horse. The action was begun in the municipal court of Rochester, where judgment was entered against defendant. On appeal to the county court of Monroe county the case was referred by consent, and on the report of the referee, judgment being again entered against defendant, he appeals.

Action by Henry S. Rood and another against James 0. Watson and others to determine the construction of the will of Foster S. Watson, deceased. On a decision declaring Jane A. Watson, the widow of testator, entitled to all the property except a legacy of $1,600, a judgment was entered, from which plaintiffs appeal.

Action by Boderick B. Mather against the Union Loan & Trust Company, as acceptor, and others as drawers and indorsers, of a draft. The answer alleges that the defendant is not a moneyed corporation; that the acceptance was not made in the due and regular course of its business; that it was not made at the company’s Office or place of business; and that neither its directors nor stockholders ever sanctioned or approved of the same, nor did they in any manner authorize it.

Action by George G. Manning and others against Lewis P. Beck and others, to set aside an assignment as in fraud of creditors. There was an order granting an injunction, and continuing the stay theretofore previously made in an order to show cause why the injunction should not be granted; also an order for the appointment of a receiver, and directing defendants to turn over certain property to such receiver, and to account to him therefor; and defendants appeal.

<p>Appeal from special term, Erie county.</p> <p>Action by Charles E. Hequembourg against William Bookstaver, mayor of the city of Dunkirk, and others. Plaintiff appeals from that portion only of an order which imposed the payment of four bills of costs upon the plaintiff as a condition of his discontinuing this action. For decision on appeal from order denying motion to continue injunction, see 2 H. T. Supp. 447. For order on discontinuance of appeal in court of appeals, see 20 if. E. Bep. 879, mem.</p>

Action by the people of the state of New York against Amariah Hammond and others to enforce an alleged forfeiture of bail. The complaint was dismissed, and an appeal was taken by the people.

Action by Robert Gilbert against John B. Manning for the price of barley sold and delivered. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial on the minutes.

Action by Mary J. Kennedy against the Rochester City & Brighton Railroad Company, for personal injuries. Defendant appeals from a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial.

Trespass by Mary O’Connor against Dennis McMahon, for the alleged unlawful taking possession of certain premises and removing the crop thereon. The case was removed to this court from a court of a j ustice of the peace, and, on a verdict for nominal damages, defendant moves for a new trial.

<p>■Contract—Construction—Premature Action.</p> <p>By a wri'ien contract defendant sold certain, land to plaintiff, and agreed to lease the land sold, and other land then owned by plaintiff, which was then cleared, or which defendant might clear, for four years, at a certain annual rental. Defendant also agreed to clear five acres of the land. Held, that defendant might clear the five acres at any time during his tenancy, and an action for failure to do so could not be maintained until its termination.</p>

Action by L. Byron Chapman against Charles H. Chumar and others, stockholders of the Bldridge Salt Company, to make the defendants liable for plaintiff’s wages, earned as a servant for said corporation. A demurrer to the complaint was overruled, and defendants appeal.

Action by Erastus Travis against the town of Carrollton for the loss of two horses on account of a defective bridge. Judgment for plaintiff, and defendant appeals.

James A. Harris and others sued Monroe H. Oakley in ejectment. From a judgment for plaintiffs, defendant appeals. For statement of the case and opinion .on former appeal, see 2 N. T. Supp. 305.

This action was brought in behalf of the plaintiff, Louis Knell, and all others whooinight come in, for the purpose of having declared null and void and restraining the collection of assessment roll Ko. 4,500, for repaving Broadway, in the city of Buffalo, between Ellieott and Spring Streets, with asphalt pavement. The whole amount of the assessment was $77,404.80, all of which had been paid by the persons liable therefor, except the sum of $6,329.31.

<p>Appeal from special term, Erie county.</p> <p>Action by Casper Dort against Eva Nicken, to compel her to execute a mortgage on land. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Monroe county court.</p>

D. Ransom, Son & Go., a corporation, sued to restrain Alvin M. Ball from infringing an alleged trade-mark. From a judgment for plaintiffs, defendant appeals.

<p>Execution Sale—Property in Receiver’s Hands.</p> <p>A sale by a sheriff, under execution, of property in the hands of a receiver, without leave of court, is void, and passes no title.</p>

Action by Hurd & Hauenstein against Bovee & Kelsey, and by Bovee & Kelsey against Hurd & Hauenstein. Judgments in both actions were entered in favor of plaintiffs in the first action, and Bovee & Kelsey appeal.

John Hubbell recovered judgment against John Harbeck before a justice •of the peace. From a judgment of the county court setting aside the judgment, plaintiff appeals.

Action by Francis B. Brewer against James E. Ford, assignee for the benefit of creditors of the Clark Manufacturing Company, to recover for the conversion of certain machinery. A verdict was directed for defendant, and judgment rendered-accordingly, from which plaintiff appeals.

Michael Popp sued the New York Central & Hudson River Railroad Company for damages for injuries received. Defendant appeals from a judgment entered on a verdict for plaintiff, and from an order denying a motion for a new trial.

Thomas Oties sued the Cowles Electric Smelting & Aluminum Company* and recovered a judgment for $8,000. .From the judgment and an order refusing a new trial defendant'appeals.

<p>1. Sale—Remedy of Vendor—Resale.</p> <p>Plaintiff contracted to deliver 25 bales of hops to defendants at 17 cents a pound. Defendants refused 16 bales as unmerchantable. Plaintiff sold the 16 bales for 6-cents a pound, and sued for the difference. If any notice of intent to resell the hops was given to defendants, it was after the resale and payment therefor, under an agreement to deliver the hops to the purchaser unless defendants would pay 15 cents for them. Held, that the sale was sufficiently complete to render the notice unavailing to charge defendants.</p> <p>2. Same—Notice.</p> <p>Where .the hops were rejected November 7th, and the resale was December 26th, and the notice, if given at all, was at about that time, it was too late.</p> <p>8. Damages—Breach of Contract.</p> <p>Where the plaintiff made no effort to sell the hops to any one hut the purchaser-at the resale, and sold them at private sale, and there is no evidence that the price was a fair one, such resale will not fix the measure of damages to be recovered of defendants.</p> <p>4. Appeal—Weight of Evidence.</p> <p>Where evidence properly submitted to a jury is conflicting, the verdict must stand, though the court might have come to a different conclusion.</p> <p>Appeal from circuit court, Ontario county.</p> <p>Orestes Case sued F. W. Simonds and others, and recovered judgment.. From the judgment and an order denying a new trial defendants appeal.</p>

Action by Margaret Kenney, administratrix, etc., against the New York Central & Hudson River Railroad Company, to recover for the negligent killing of her intestate. Judgment for plaintiff, and defendant appeals.

<p>Wills—Probate—Evidence.</p> <p>On application to probate a will which gave testatrix’s husband all her personal property absolutely, and the use of her realty for life, to be divided among her relatives per capita at his death, there was evidence that testatrix was on bad terms with her husband’s relatives, and desired to cut them off, and that she did not wish her husband to know that she was executing a will; that the will was intrusted to a subscribing witness to be by him kept in secrecy for a year after testatrix’s death. Though this witness was of bad character, another subscribing witness and the lawyer who drew the will testified, and their testimony was undisputed. The estate consisted only of about §3,500 worth of realty and a little personalty. Neither of the subscribing witnesses nor the draughtsman derived any benefit under the will, and did not know of testatrix’s death at the time thereof. Held, that the will was not shown to he a forgery, and should be admitted to probate, though a former will had been probated before it was produced, which was a year after testatrix’s death; the evidence showing that the proponent did not know of its existence until then.</p>

<p>Sale—Damage in Transit—Rights of Buyer.</p> <p>A bill of sale was of “five hundred (500) to six hundred (600) tons kainit in bulk, * * * delivered ex vessel in New York harbor. Shipment to be made from a German port by sailing vessels. ” During the voyage the kainit was damaged by the seas. Held, that the purchasers were entitled to recover from the spller the difference between the contract price and the market price of the kainit when received.</p>

Action by George Carrigan against Henry L. Washburn and others on a promissory note. Plaintiff appeals from an order vacating execution issued against the person of defendant Washburn.

Motion by Randolph Guggenheimer to have certain moneys applied to a judgment recovered by him. It appeared that Guggenheimer had, in May, 1877, recovered a judgment against defendant, Mark S. Stevens, and also in December, 1887, another judgment, of which William H. Moynan is the assignee. In 1884 defendant inherited an interest in land from his mother, and in August, 1886, supplementary proceedings were begun on Guggenheimer’s judgment.

<p>Appeal from judgment on report of referee.</p>

Milo Webster and wife sued Ann Gray and others for the partition of real estate under the terms of a will, and appeal from the Interlocutory judgment.

Action by Allison Bros. Company against Oscar M. Allison and others. Plaintiff obtained from the court a temporary injunction against defendant Allison for the violation of a contract. The injunction was vacated by the special term, and plaintiff appeals.

<p>Appeal from circuit court, Monroe county.</p> <p>Action by Francis M. Shaw and another against John C. Lighthouse. Judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from special term, Oneida county.</p>

<p>1. Patents fob Inventions—Assignment—License.</p> <p>A clause in a written contract read as follows: “And the parties of the first part do hereby sell, assign, and transfer to the said parties of the second part all other patents they may have a right to use, so far as they may be used in the territory named, in the manufacture and sale of harrows without wheels or poles, ” and “all harrow patents, patents for improvements, and reissue of harrow patents which may be obtained by them by purchase or otherwise, to be used in the manufacture and sale of harrows made without wheels and poles. ” Rev. St. U. S. § 4898, provides that every patent, or an interest therein, shall be assignable in law by an instrument in writing, and the patentee or his assigns, etc., may in like manner grant and convey an exclusive right under said patent to the whole or any specified part of the United States. Held, that the' contract was not for an assignment, but for grants of licenses only, since it reserved to the owners the exclusive right to manufacture and sell within the territory named harrows on wheels, and horse-rakes, to be made under the patent, and since an assignment with such reservation was not authorized by statute.'</p> <p>D. Same.</p> <p>The contract gave to the party of the second part no rights which he could assign, as a license is not assignable unless expressly so stated.</p>

Application of the Rochester, Hornellsville, and Lackawanna Railroad Company against Charles H. Hartshorn and others for the condemnation of land under the general railroad act. From several orders of the special term Hartshorn and others appeal. For opinion on former appeal, see 2 H. Y. Supp. 457.

<p>1. Judgment—By Consent—Opening—Advice of Counsel.</p> <p>Where, in compromise of a claim, judgment has been rendered against defendant with his consent, he cannot, in the absence of proof of fraud, have it vacated on the ground that he acted on the erroneous advice of counsel.</p> <p>2. Same—Jurisdiction.</p> <p>A judgment which is entered by a court without jurisdiction will not he vacated1 at the instance of defendant if he has consented to its entry.</p>

Upon the judicial settlement of the accounts of Calvin J. White, executor of Sarah Hoover, a decree was entered adjudging that Mary F. Emerson, one of the beneficiaries under the will, was not a residuary legatee, and hence not entitled to share in the sum remaining in the hands of the executor undistributed. From this decree she appeals.

Action by William B. Greene against John B. Greene and others, heirs of William H. Greene, for partition of certain real estate. The court dismissed the complaint, and plaintiff appeals.

Action by Emily J. Shay against the National Benefit Society of the city of New York to recover upon policies of insurance issued by the defendant to James Shay for the benefit of plaintiff. There was a verdict directed for the plaintiff, and defendant’s exceptions and motion for new trial were ordered to be heard at the general term in the first instance.

<p>1. Wills—Undue Influence—Evidence.</p> <p>On the issue whether a will was procured by undue influence, declarations made by the proponents, who were charged with exerting the influence, which declarations demonstrated the attitude of proponents towards the contestant in respect to the subject matter at issue, and the intent with which each performed the acts attributed to him, some of them being letters showing a disposition to influence testator, are admissible, and a conspiracy need not first be established.</p> <p>2. Same—Instructions.</p> <p>The jury were instructed that “if, under all the circumstances of the Case, they find that this will was unnatural in its provisions, and inconsistent with the duties and obligations of the testator to the different members of his family, it imposes upon the proponents the duty of giving some reasonable explanation of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity, or perversion. ” Held correct.</p> <p>3. Witness—Competency—Transactions with Decedents.</p> <p>Testimony of the widow of testator as to the contents of letters written by her to contestant at the instance of the testator is not testimony as to transactions with decedents, forbidden by Code Civil Proc. 1ST. Y. § 829.</p> <p>4. Same—Interest.</p> <p>Contestant’s husband having testified for her on the trial before the surrogate, and contestant having died thereafter, this testimony of the husband, though he became interested in the result of the action by his wife’s death, may be read on the trial at the circuit, under Code Civil Proc. § 830, providing that, where a party has died since the trial of an action, decedent’s testimony, or that “of any person who is rendered incompetent by the provisions of the last section, taken or read in evidence at the former trial, ” may be given in evidence at a new trial</p> <p>5. Appeal—Objections not Raised Below.</p> <p>A party who has submitted to, and conceded, the jurisdiction of a court to determine a motion for judgment, cannot, on appeal therefrom, object to its jurisdiction.</p>

<p>1. Judgment—Res Adjudicata.</p> <p>S. sued B. on account, and attached certain land. The attachmentwas dissolved, and B. sued on the indemnity bond, alleging loss of sale and depreciation in value caused by the attachment. S. answered that the land was purchased for her by B. under an agreement by which the title was assured to S., and credit for the price was to be given to B., and she asked judgment for specific performance. On the trial evidence of the counter-claim was rejected on the ground that by bringing the action on account, and giving no credit for the price of the land, S. had waived performance of the agreement, and elected to sue on account, and include the consideration for the agreement. B. procured judgment. Held, that S. was estopped by the judgment from afterwards suing for specific performance of the contract.</p> <p>3. Same.</p> <p>After the entry of the judgment in the action on the bond, S. was allowed, over the objection of B., to amend her complaint in the action on account so as to give credit for the price of the land, and to give evidence, also objected to, to establish the agreement mentioned above. The referee found that the agreement was made, but the credit, together with others, overcame the claims of S., and judgment was entered dismissing the complaint. Held, that the judgment did not estop B. from contending against a specific performance of the agreement, as the question was not at issue, since the complaint admitted the credits; also because, the judgment being in favor of B., he could not have the finding reviewed by appeal.</p>

<p>1. Pleading—Waiver of Objections.</p> <p>Under Code Civil Proc. N. Y. § 499, an objection that plaintiff has no legal capacity to sue must be pleaded either by demurrer or answer.</p> <p>3. Indians—Right to Sue.</p> <p>Laws N. Y. 1845, c. 150, § 8, provides for the appointment by the governor and senate of an attorney for the Seneca Nation of Indians, who, among other duties, should “prosecute and maintain all actions, suits, and proceedings for them, or any of them, as he might find necessary or proper. ” Laws 1843, c. 87, § 4, provides that any Indian who is a freeholder shall be subject to the civil jurisdiction of the courts in the same manner, and to the same extent, as a citizen thereof. Laws 1847, c. 365, § 14, provides that any Indian of the Seneca Nation whose claim exceeds the jurisdiction of the “peace-makers” of the nation, established at $100 by section 8, may sue and be sued “in the same manner, and with like effect, as between white citizens. ” Held, that a Seneca Indian' could sue, either in person or by his chosen attorney, for a claim which the jury found to exceed $100, and was not bound to employ the attorney appointed for the nation.</p>

<p>1. Wills—Execution.</p> <p>A will was subscribed by testatrix in the presence of one of the attesting witnesses, and was declared by her in the presence of both of them to be her last will and testament. The two witnesses subscribed it as such at her request. Testatrix’s signature was plainly visible to the attesting witnesses on the face of the will. Meld, a sufficient compliance with 2 Rev; St. N. Y. p. 63, § 40, requiring the subscription to be made by testator in the presence of each of the attesting witnesses, or to be acknowledged by him to have been so made to each of them, and that there shall be at least two attesting witnesses, each of whom shall sign, etc.</p> <p>2. Chabities—Validity of Bequest.</p> <p>A bequest “to the American Bible Society, * * * to be used by said society for the promulgation of the Holy Bible, ” is not void' as a gift in trust, without a definite or ascertainable beneficiary capable of enforcing the trust, since the gift was limited to the precise use for which the society was incorporated. Laws NT. Y. 1841, c. 68.</p>

<p>1. Wills—Legacies—Implied Chabge on Land Specifically Devised.</p> <p>A general legacy is not charged on land devised specifically by a former clause of the will, simply from the fact that the devisee is also made executor and legatee of the residuum of the estate (which entirely consists of nersonalty) after all claims against the estate are paid.</p> <p>2. Same.</p> <p>The fact that the devisee was also appointed executor, and accepted the trust, did not make him personally liable for the legacy, nor create a charge on the devised land, as he was not directed personally or as executor to pay the legacy, which was simply given to the legatee generally, with no direction to any one to pay it.</p>

Action by Henry W. Willis against Harvey Morse, for goods sold and delivered. The action was originally commenced in justice’s court, and a retrial was had in the county court upon the pleadings as returned by the justice.

Action by Edwin W. Babbage against Daniel W. Powers to recover damages for personal injuries sustained by the plaintiff, by reason of the sidewalk in front of premises owned by the defendant being in an unsafe and insecure condition. At the time of the accident, and for a long time prior thereto, the premises were in the actual possession of one Davis Harris, a tenant, under a lease from the owner.

<p>Schools and School-Districts—Employment of Janitor—Removal.</p> <p>Under Laws N. Y. 1856, c. 129, creating the defendant board of education, the board had power “to contract with and employ all teachers in the school under their charge, and also a janitor and librarian, and at their pleasure to remove them. ” By a resolution of the board plaintiff was appointed janitor, “to hold that position during the pleasure of the board at an annual salary, ” etc. These terms were embodied in a contract which plaintiff signed. Helcl, that the board had power to remove the janitor at their pleasure, which power became a term of the contract with plaintiff; and his removal before the end of the year gave plaintiff no cause of action.</p>

Action by Betsy Whitman, as administratrix of George H. Whitman, deceased, against Matthew F. Foley and Bridget Dean, to foreclose a mortgage. Plaintiff appeals from the findings of the referee.

<p>1. Wills—Constbuotion—Rights of Legatees.</p> <p>Testator bequeathed to his wife, during her life, §40,000, “including the proceeds of any and all insurance policies on my life payable to her or otherwise. ” He directed the sum to be invested, and the income paid to her. After giving her the homestead and certain personalty, he proceeded: “The foregoing bequests and devises if * * are in lieu of dower, but if the use and income thereof shall be insufficient for her reasonable support, * * * my executors shall pay any deficiency from any other property. ” Later, the will directed that the executors hold in reserve at least §10,000 during the life of the wife, and pay her such part as might be needed for her comfortable support, and that the residue of the income be paid to the residuary legatee. The will then proceeds: “I direct that the principal of such fund in reserve shall, after the death of my wife, ” become a part of the residuary legacy. He then gave “ all the rest, residue, and remainder of my property in three equal shares, ” etc. The wife was made one of the executors. Testator had three policies of life insurance, amounting to §10,000, payable to his wife, and another, of §5,000, payable to his executors. Held, that the “fund in reserve” was the additional §10,000, and not the §40,000, and that the widow, by electing to stand by the will, did not relinquish her right to the §10,000 insurance money, as being money bequeathed by the testator, which was not his own.</p> <p>2. Executobs—Accounting—Compensation.</p> <p>The will authorized the executors, in their discretion, to continue a certain business of the testator, which one of the executors had been carrying on for him at a stated salary. His co-executors agreed to pay him at the same rate for continuing the business. Held, that it was in the line of his duty as executor, and he should be allowed no more than the statutory commission for the services.</p> <p>3. Same.</p> <p>Code Civil Proc. N. Y. § 2736, providing that, where the personal estate of a decedent amounts to §100,000 or more above' his debts, each executor, if there are not more than three, is entitled to full compensation allowed to a sole executor, does not authorize such commission to executors who resign their trust, and are succeeded by an administrator; nor is one of three such executors entitled, on the ground that he did all the work, to a triple commission on sums actually received and disbursed. *</p>

<p>1. Municipal Corporations—Sewer Assessments—Local Improvements.</p> <p>A resolution of the city council of Auburn for the construction of a sewer is a proceeding authorizing a local improvement, the expense thereof being assessed on the property benefited, and not a public one, within Laws N. Y. 1879, c. 53, § 35, as-amended by Laws 1885, c. 255, § 5, providingthat no resolution authorizing any public improvement shall have any effect unless approved by the mayor within four days after its passage, or, failing of his approval, is repassed by the concurrent vote of eight aldermen.</p> <p>2. Same—Awarding Contract—Failure of Lowest Bidder.</p> <p>After bids for constructing a sewer were opened, and the council had passed a resolution awarding the contract to the lowest bidder, who failed to enter into contract, it was not necessary to advertise again, as the council might, at its next meeting, rescind the former resolution, and award the contract to the next lowest bidder; Laws N. Y. 1879, c. 53, § 111, providing that, the next meeting after proposals are made, they shall be presented to the common council, and be opened and considered. “The common council may reject any or all of the proposals, if they shall deem it for the interest of the city If either of said proposals is deemed favorable to the city, and the bond accompanying the same is acceptable, the common, council may direct the mayor and city clerk to contract with the party whose proposal is accepted. ”</p> <p>8. Same—Excessive Assessment.</p> <p>Where the proposals for bids referred to other materials, but not to lumber, a provision in the contract allowing for lumber without consent of the council is unauthorized, and the assessment for its payment is in that particular excessive.</p> <p>4. Same—Interest on Cost of Work.</p> <p>An assessment for interest for one year on the cost of the improvement was not erroneous, it being authorized by Laws N. Y. 1885, c. 255, § 27.</p> <p>5. Same—Correction of Assessment.</p> <p>Where the amount of an erroneous assessment for local improvements can be ascertained, the entire assessment is not thereby invalidated, but the court may, in the exercise of its equitable power, correct the error.</p>

Action by Sarah B. Gammond against the Bowery Savings Bank to recover money deposited by Michael Galligan, who made an absolute gift of it, accompanied with his bank-book, to plaintiff, and subsequently died.

Action by William,W. Healey and others against ICate M. Terry. Plaintiffs appeal from an order striking certain words out of the case.

<p>Appeal from trial term.</p> <p>Action by Aaron D. Farmer and others against the Medico-Legal Journal Association and the Railway & General Printing Company on a promissory note. The court directed judgment for plaintiffs, and defendants appdal.</p>

Action by Albert L. Woarms and others against Moritz Bauer. The complaint alleged that between the 15th day of August, 1888, and the 15th day of October, 1888, David S. Hess, Charles T. Parks, Louis J. Lesser, and Albert L. Woarms were copartners doing business in the city of New York under the firm name and style of D. S. Hess & Co., and as such copartners, during the period aforesaid, performed work, labor, and services for, and furnished materials to, the defendant, at…

Action by William M. Berrien against Frederick Southack for the wrongful discharge of plaintiff from defendant’s service. Judgment was entered on a verdict for plaintiff, and defendant appeals.

<p>Legacy Tax—Exemptions—Almshouse.</p> <p>A charitable institution which requir.es, as a condition of entrance thereto, the-payment of an admission fee, and the making of a will by the applicant in its favor, is not an almshouse, within the definition of a “pure charity, ” so as to exempt a bequest to it from the legacy tax.</p>

<p>1. Trusts—Sale of Trust Property—Profits.</p> <p>Where the interest of a trust fund is payable as income to a life beneficiary, and the securities in which the fund has been invested are sold at a profit, it is error to credit the profit to the income account, as it is a gain to the principal, to which it should he added, to go eventually to the one entitled to receive the corpus.</p> <p>2. Same—Accounting of Trustee—Interest.</p> <p>Where a payment by the testamentary trustee has been directed by a decree, it is error to charge him compound interest on the sum due.</p>

<p>Application for admission to probate of a paper purporting to be the will of Marie Louise Comstock, deceased. Testator’s next of kin contested its validity on the ground of mental incapacity of the maker.</p>

Action by Moritz Pach against Prank T. Gilbert, as sheriff, for failure to levy an execution. Judgment was entered on a verdict for plaintiff, and defendant moves for a new trial upon the minutes.

Motion to vacate an order. Action by Patrick Cronin against Dennis F. O’Beiley. Plaintiff moves to vacate an order removing the receiver appointed in the action, granted upon motion of defendant.

Action by Bridget O’Connell, as administratrix of John Madden, deceased, against Ruth C. Madden, to set aside certain conveyances as in fraud of creditors. It appeared that plaintiff’s intestate, being insolvent, and indebted to Mary Madden, Maggie Ford, and plaintiff, had conveyed his real estate to ■Charles Cooper, who, about three days afterwards, conveyed it to Ruth C. Madden, the intestate’s wife. Both of these deeds were without consideration.

Action by John G. Avery against the New York Central & Hudson River Railroad Company. There was a verdict for plaintiff at the trial term, and defendant moves for a new trial. For previous litigation between the same parties, see 2 N. Y. Supp. 101, 109.

<p>Appeal from special term, New York county.</p> <p>Action by Philip McGuire, administrator of John McGuire, for an injunction against the trustees of St. Patrick’s Cathedral.</p>

Action by Alba Briggs against John Langford to restrain the present defendant and one Austin Heath—the latter now deceased—from foreclosing the , mortgage mentioned in the complaint, upon the ground that the same had no validity, and was without consideration, and was null and void; and upon the further ground that, at the same time the plaintiff purchased the mortgaged premises, the defendant fraudulently concealed the existence of such mortgage from him.

Proceedings for the final accounting of Henry Eli Hick, as committee of the estate of William Blossom, a lunatic, deceased. The administratrix of the lunatic appeals from the decree allowing certain items to the committee.

Action by Frank M. Ashley, as administrator of the estate of John McCoun, deceased, against the Wrought Iron Bridge Company. J udgment for plaintiff, for damages, $128.25; for costs, $730.50. The original plaintiff died since the-entry of judgment and the bringing of this appeal, and the respondent has-been substituted as his administrator.

Action by George L. Holloway against the city of Lockport, for personal injuries caused by ttie defendant’s neglect to keep a sidewalk within the city limits in a safe condition. At the close of plaintiff’s evidence defendant moved for a nonsuit, which was denied. Defendant appeals from a judgment entered on a verdict of $375 for plaintiff, and from an order denying the defendant’s motion for a new trial, founded on a case containing exceptions.

Action by Edward E. Erwin against Francis E. Erwin and others, for the specific performance of a paroi promise to convey land. The decision directed a conveyance of the premises to plaintiff by such of the defendants as the title was vested in at the time of the commencement of the action. Defendants appeal.

Action by Morris Bosen against Bath an Stein, Leopold Bloch, Louis Stein, and Abraham B. Stein for false imprisonment. There was a judgment for plaintiff, from which, and from a denial of a motion for a new trial, made upon the minutes, defendants appeal.

Action by James G. Wood against A. L. Bockwell and another. The original defendants were Herman Blodgett and Lucy Jane Élodgett, his wife. The husband survived his wife, and, upon his death, the present defendants were appointed his administrators, and substituted as defendants.

<p>Vendor and Vendee—Contract—When Title Passes.</p> <p>Though persons went to live on testator’s land under an arrangement whereby they were to have the same at his death, the arrangement being recognized by the testator during his life-time, and in his will disposing of the land, the title to the land remained in him until his death.</p>

<p>Assignment for Benefit of Creditors—Accounting of Assignee—Disbursements.</p> <p>Where an assignment has been set aside as fraudulent, and the court has found that the assignee confederated with the assignor to defraud his creditors, the assignee is not entitled, on an accounting, to an allowance for attorneys’ fees or debts paid to preferred creditors of the assignor, or for any disbursements except wages paid to the assignor’s employes, which are expressly authorized by law.</p>

<p>On rehearing. For former report, see 2 H. Y. Supp. 815, 3 H. Y. Supp. 765.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Francesca Hirshbach against John E. Schmalz and Theresa Schmalz. Complaint dismissed on the merits after a trial, and plaintiff appeals.</p>

Action by Milo M. Belding against Eugene H. Ladd and William E. Small-man upon an alleged breach of warranty in the sale of horses at Malone, Franklin county. Defendants moved for a change of venue from New York county to Franklin county. Defendant Smallman, in bis moving affidavit, asserts that he requires twenty-seven witnesses, all residing at ornear Malone, Franklin county, and the affidavits of four of these witnesses were presented.

<p>Appeal from circuit court, New York county.</p> <p>Action by Charles E. O’Connor, as receiver, against the Mechanics’ Bank. Both parties appeal. For opinion at circuit, see 2 N. Y. Supp. 225.</p>

<p>Appeal from special term, New York county.</p>

Action in the nature of quo warranta, brought by the people of the state of New York, for the forfeiture of the defendant’s corporate franchises, and for its dissolution. A decree of dissolution was entered, and defendant appeals. Code Civil Proc.

<p>Appeal from special term, New York county. '*</p> <p>Action by Isaac Wolff against Edward Flatow and another. Plaintiff appeals from a judgment sustaining a demurrer to the complaint.</p>

<p>On petition to revoke probate of the will of Henrietta Walther, deceased.</p>

<p>Appeal from special term, Erie county.</p> <p>Action by Isabel Sidway against Eliza D. Sidway and others. The action was to reform a deed conveying certain premises located in the city of Buffalo in fee to the defendant Eliza D. Sidway, and to have the same declared a mortgage, to secure the sum of $5,000, and to allow the plaintiff, who claims to be the present owner of the fee, to redeem the premises therefrom. The deed was made and executed on the 14th day of April, 1884, by William J. Sid way and the plaintiff, his wife, to the defendant Eliza D. Sid way, who was the mother of the said William J., expressing a consideration of one dollar only. At that time the grantor, William J., was the owner of the fee, having derived his title as the sole heir at law of his deceased father, John J. Sidway, subject to the unmeasured right of dower of the defendant, who is the widow of the said John J. Sidway. The premises are located in the business part of the city of Buffalo, and were in part occupied as the residence of the parties to the deed, the first floor being rented to third parties as a place of business. The value of the premises at the time the deed was executed was found by the court to be $20,000, subject to a mortgage in amount about $18,000, and the value of the widow’s right of dower was estimated by the court to be $735. After the deed was delivered the parties continued to reside on the premises, living together as one family, until the death of William J., which occurred in June, 1885. At that time the plaintiff was pregnant with child, that was born alive, and died a few days thereafter, and the plaintiff claims title to the premises as its sole heir at law. Special issues were framed to be tried by a jury, which' embraced all the material questions of fact in dispute, all of which were answered by the jury in the plaintiff’s favor, and, if they had been adopted and embraced in the decision of the court, would have entitled the plaintiff to the relief demanded. Thereafter the trial of the action was moved at special term, held by the same justice who presided at the trial before the jury, and the plaintiff, to maintain the issues on her part, offered in evidence a duly-certified copy of the findings of the jury, together with all the evidence taken upon that trial, which was read and submitted to the court, and thereupon the plaintiff rested, and the defendant offered no evidence. The special term made and filed a decision, passing upon all the material issues, and found and held as a matter of fact that on the 12th day of April, 1884, the decedent, William J. Sidway, and the plaintiff herein, executed and delivered to the defendant Eliza D. Sid-way a quitclaim deed of the lands and premises in payment and discharge of the loan of the sum of $5,000, made by the said Eliza to the said William J., in March, 1884, and that there was no understanding or agreement that the said deed was given as a security for the said loan, and that a fair market price was paid for the premises. The plaintiff made requests that the court make findings of fact in conformity to the verdict of the jury, which was refused, and the plaintiff appeals.</p>

Action by Ann Lee against the Vacuum Oil Company. Plaintiff is the administratrix of the estate of John Lee; deceased, who died on the 21st day of December, 1887, in consequence of injuries he received that day by the explosion of gas in a building in which ■ lie was employed as a' laborer, by the occupant.

<p>L Judgment—Unauthorized Direction.</p> <p>In replevin for bonds, where the verdict awards possession to plaintiff, and fixes their value, including damages, at a certain sum, a judgment that plaintiff have delivery of the bonds, or, in default, the sum named in the verdict, and adding a distinct amount as damages for detention, is, in respect to this addition, unauthorized.</p> <p>2. Same—Mode op Correction—Effect op Appeal.</p> <p>. The mode of correction of such error is by mati o n; and an appeal from the judgment, bringing in question only the plaintiff’s right to the possession of the bonds, and in which appeal the right to the further damages was not considered, is not conclusive against defendant's right to have the additional allowance stricken from the judgment on motion.</p> <p>8. Same—Limitation.</p> <p>The statutory limitation (Code Civil Proc. N. Y. § 1383) for setting aside a judgment for irregularity has no application, as the additional allowance was not an irregularity, but was wholly unauthorized.</p>

At chambers. Action by John T. Fenlon against John Dempsey and John D. Carroll. Plaintiff moves to punish defendants fpr contempt. For former report, see 2 N. Y. Supp. 763. John McCrane and John L. Cadwalader, for plaintiff. Louis P. Levy and Abram Kling, for defendants.

Action by Samuel W. Heymer against Mary A. Arthur, as administratrix of the estate of Thomas M. Argali, deceased. Plaintiff appeals from an order dismissing the complaint for want of prosecution.

Proceedings for the disbarment of John H. Post from practicing as an attorney and counselor at law. Por order of reference, see 5 27. Y. Supp. 949, mem.

<p>Appeal from special term, Kings county. ¡</p>

Action by Mary S. Bldridge against the Rochester City & Brighton Railroad Company for an Injunction to restrain defendant from laying down additional tracks on Court street, city of Rochester. Judgment for plaintiff, and defendant appeals.

<p>Pleading—Demurrer—Authority op Attorney at Law.</p> <p>Where a compromise by defendant’s attorney is set up as a defense to an action, plaintiff, on demurrer, cannot avail himself of the proposition that an attorney cannot compromise without special authority, where the complaint does not allege that the attorney had no authority to make such compromise.</p>

In an action by Maria Louisa Collins against Adeline M. Beebe, executrix, and Theodore D. Jones, executor, of Welcome It. Bebee, deceased, after judgment for plaintiff, and the issue of an execution, an order was obtained for the examination of a third person in supplemental proceedings. This order having been vacated by a subsequent order, plaintiff appeals.

<p>Municipal Corporations—Discharge op Policeman—Jurisdiction.</p> <p>Where a policeman leaves his post and falls asleep, his dereliction gives the police commissioners jurisdiction for purposes of discipline, and the supreme court cannot review their action in regard to the punishment inflicted.</p>

The petitioner, the New York & Long Island Bridge Company, made application for the appointment of commissioners to appraise the compensation to be made to the city of New York for so much of Blackwell’s island as might be required for constructing and operating its proposed bridge over East river from New York city to Long island. From the order of the special term denying the application, petitioner appeals.

Action by Alfred S. Lascelles, Eliot A. De Pass, and Joseph L. Myers against John Miller. There was a judgment on a verdict for plaintiffs, and an order denying a motion for a new trial, and defendant appeals.

Action by Robert J. Dean and another against Marshall S. Driggs. Judgment was entered on verdict for plaintiff, and an order was entered denying a motion for a new trial. Defendant appeals. For order denying motion to dismiss appeal, see 5 N. Y. Supp. 947, mem.

<p>1. Contempt—Commitment—Procedure.</p> <p>Under Code Civil Proc. §§ 856,857, authorizing the judge, on proof by affidavit that a witness refuses to answer a legal question, to commit him to jail by warrant, specifying the cause of commitment, etc., the fact that notice of the application was given, and an order to show cause granted, does not require a decision evidenced by an order in writing, as the statute does not require notice or rule to show cause, and such procedure is a mere nullity.</p> <p>2. Constitutional Law—Due Process of Law.</p> <p>The above sections are not unconstitutional as depriving of liberty without due process of law, in that the proceeding is ex parte, and no notice is required.</p> <p>8. Same—Titles of Laws.</p> <p>Laws N. Y. 1884, c. 516, is entitled “An act to amend chapter 410 of the Laws of 1882, entitled ‘ An act to consolidate into one act and to declare the special and local laws affecting public interests in the city of New York,’ in relation .to the commissioners of accounts, New York city. ” The amended act was virtually a charter of the city, being an act to consolidate all the special and local acts by which the government of the city was carried on, and from which its various departments derived their power, and the law of 1884 was simply an amendment of this. Field, that the title of the law of 1884 was sufficient.</p>

Catharine McSwyny sued the Broadway & Seventh-Avenue Railroad Company for damages for personal injuries. From a judgment on the verdict of the jury, and an order denying a new trial, defendant appeals.

<p>Certiorari to review the action of the police commissioners in discharging the relator, Matthew Hogan, from the force.</p>

Action by James N. Bradley against Mary A. Leahy and others for the foreclosure of a mortgage. At the sale thereunder John J. Burchell became the purchaser of the land, and he now appeals from an order denying his motion to be relieved from the purchase, and granting plaintiff’s motion to compel him to complete the same.

In an action by Jacob Hordlinger and others against Joaquin de Mier and •others, De Mier was not served, and moved to set aside an alleged unauthorized appearance by attorney. He was denied this relief, but was allowed to •substitute attorneys. Being dissatisfied therewith, he appeals.

Action by Charles S. Hine against the New York Elevated Baiiroad Company to recover for injuries to plaintiff’s premises by the construction and operation of an elevated railroad on a street adjacent thereto. After plaintiff’s testimony was in, defendant moved to dismiss for failure of plaintiff to-“prove facts sufficient to constitute a case.” The motion being granted, plaintiff appeals. For former report, see 36 Hun, 293.

<p>1. Master and Servant—Negligence of Master.</p> <p>In an action for personal inj uries it appeared that defendant employed plaintift to assist in taking down old buildings; that defendant personally directed the work; that the walls were in 'an unsafe condition; that his attention was called to a safe method of doing the work; that he deliberately and without observing the warning, hazarded the lives of the workmen; that, without warning to the workmen, pieces of wall were torn down and thrown into the cellar; and that the shook of this fall caused the walls, which were loose and not shored up, to fall and injure plaintiff. It was shown that the building could easily have been taken down with safety. Meld, that the jury were justified in finding that the fall was caused by the manner in which the work was conducted, and not by the negligence of co-employes, and a verdict for plaintiff would be sustained.</p> <p>2. Same.</p> <p>It appearing that defendant acted as a rash and angry man, and not as a careful and prudent man, the proposition that defendant was justified in acting on his own experience and judgment, and on advice which sustained him, is inapplicable, and will not prevent a recovery</p>

Action by John S. Miller and others against Charles H. Ferry, on a contract assigned to plaintiffs. Judgment for plaintiffs, and defendant appeals. For former appeal from order as to plaintiffs’ undertaking in attachment, see 2 hi. Y. Supp. 863.

Action by Constance B. Price, widow of Walter W. Price, deceased, against Walter J. Price and others, heirs and grantees of said decedent, for assignment of dower. At various times orders were made and judgments rendered from which appeals were taken. See 33 Hun, 76, 432; 41 Hun, 486, 2 N. Y. Supp. 796.

A special proceeding was begun to acquire land in New York city for the -extension of Lafayette place. Commissioners of estimate and assessment were appointed, but before concluding tlieir labors the resolution under which they acted was rescinded by the council, arid nothing further was done until, several years later, the commissioners, being desirous of being paid their fees and expenses, moved a reference to take proof concerning their claim.

<p>1. Master and Servant—Wrongful Discharge.</p> <p>When a master is sued by his servant for wrongful discharge, and it appears that the contract bound plaintiff to perform his duties to the best interests of defendant, and as economically as possible, and to conform to. reasonable rules made by defendant, and there is evidence that before the discharge disputes arose; that plaintiff disobeyed the instructions and refused the requests of defendant,—it is error to instruct the jury to find for plaintiff, as it is a question for their determination whether plaintiff’s conduct was such as to justify his discharge.</p> <p>2. Same—Waiver oe Objection.</p> <p>Defendant does not waive his right to go to the jury on the question of reasonable ground for discharging plaintiff, though he does not request the submission of that issue, when the trial judge has just announced his intention to submit nothing but the question of the amount of plaintiff’s recovery.</p>

<p>1. Vendor and Vendee—Bona Fide Purchase.</p> <p>Where a grantor in a deed conveys the absolute title, and the grantee conveys to a third party for a valuable consideration, the latter acquires a complete title, though the original grantor had reserved a right of redemption of which the vendee had 'no knowledge, and on the bankruptcy of the original grantor his assignee obtains no title as against the vendee.</p> <p>2. Same.</p> <p>Where the land was conveyed by the original grantor under an agreement that the grantee should sell the land and pay any surplus above a debt owed by the grantor to the grantee to the former, neither the grantor nor his assignee could question the regularity of a sale made under such authority, nor disaffirm the conveyance.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by William Lockwood and another against Edward B. Bartlett and others. Judgment for plaintiffs, and defendants appeal.</p>

Action by Frederick AAL Buning against Joseph J. Kittell. The following statement of facts made by the appellant was adopted by the court as correct: On the 4th day of January, 1886, plaintiff entered into a written agreement with the defendants, the latter constituting the firm of J. Kittell & Co., whereby the latter employed appellant as clerk and salesman for one year from January 1, 1886, at a salary of $2,500 for the year, and, if one-sixth of the net profits of the…

<p>1. Mutual Benefit Insurance—Change of Beneficiary—Vested Right.</p> <p>The laws of the mutual benefit association of which deceased was a member provided that the member might change the beneficiary of the relief fund certificate, and a new certificate be issued on surrender of the old one. By Laws N. "Y. 1883, c. 175, § 18, the right to effect such a change is made obligatory on the association, and the right is given to make such change without consent of the beneficiary. Held, that plaintiff, who was named in the first certificate issued to decedent, which was after-wards annulled and a new one issued, had no vested right in the certificate.</p> <p>2. Same.</p> <p>The fact that the decedent attempted to name a beneficiary in the second certificate, who was not "entitled to take under the rules and regulations of the association, conferred no right on plaintiff.</p>

On certiorari to review the dismissal of Philip O’Sullivan from the police force of the city of New York by Stephen B. French and others, police commissioners.

<p>Appeal from special term, New York county.</p>

<p>Appeal from special term.</p> <p>Jennie M. Thompson and another, as executors of the will of John B. Thompson, deceased, sued Edward H. Hawke and one Danziger. From a judgment sustaining a demurrer to the complaint plaintiff appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Application for retaxation of costs.</p>

Frederick Reck sued the Phoenix Insurance Company on a policy of insurance. Judgment was rendered for plaintiff. For opinion on former motion in the case, see 5 N. Y. Supp. 543.

Application by Sarah Lenita Plumb, a minor, for the removal of James Neale Plumb as general guardian of her person and estate. For former reports of different phases, of the litigation, see 4 N. Y. Supp. 135, 831. From an order appointing a referee in place of a deceased referee, James N. Plumb appeals.

<p>Default Judgments—Opening—Laches.</p> <p>A default will not be opened on motion, when the party making the motion has been guilty of great loches therein.</p>

The United States Land & Investment Company sued W. G. Bussey in replevin, to recover possession of a mortgage bond. From an order of inter-pleader substituting H. A. Herbert, a non-resident, as defendant, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>On reargument. For former opinion, see 1 H. Y. Supp. 919.</p>

Action by Thomas J. Shea against the Manhattan Bailway Company for false imprisonment. Judgment was entered on verdict in favor of plaintiff, and defendant appeals.

<p>Appeal from special term.</p> <p>Thomas Youngs, Jr., a judgment creditor of Marie 0. Klunder, moved that his judgment have priority of payment from funds in the hands of a receiver appointed of the defendant’s property in proceedings supplementary to execution founded on a subsequent judgment recovered by Willi am S. Allen. From an order denying the motion the plaintiff Youngs appeals.</p>

<p>Appeal from special term.</p> <p>Action by John Claffy against John O’Brien and others. Judgment was entered on a verdict in favor of defendants, and plaintiff appeals.</p>

Action by Conrad Stubing against John Stubing and Mary Himmo, to recover money given them under apprehension of death. Judgment for plaintiff, and defendants appeal.

Action by the Metropolitan Manufacturing Company against James McDonald, on a written guaranty of the faithful performance of his duties by James McCloskey as an employe of plaintiff, given for a recited consideration of one dollar, and the employment by plaintiff of McCloskey. Defendant admitted to plaintiff’s representative that he signed the guaranty, and, relying thereon, plaintiff employed McCloskey, who afterwards defaulted.

<p>Constitutional Law—Due Pbocess of Law—Revocation of Building- Permit.</p> <p>Where a city council has granted a permit to build frame buildings within the fire limits, and excavations for the cellars have been made, and materials contracted for, and partly delivered, and the work of building is in progress, a resolution of the council, rescinding its former action, without notice to defendant or opportunity given him to be heard, is, in the absence of any public necessity for such action, void, as taking property without due process of law.</p>

John A. Longrill brought an action and recovered judgment against John Downey, in the municipal court of Buffalo, for $25. The latter appealed, and moved the superior court to allow him to amend his answer to claim judgment for a sum exceeding $50, that he might have a trial de nova, as provided in cases of appeals from justices, by Code Civil Proc. H. Y. § 3068. Acts H. Y. 1880, c. 344, § 6, makes the practice in justices’ courts applicable to the municipal court of Buffalo.

John Floss and others were indicted under Pen. Code H. Y. § 458, which prohibits any person from engaging in, instigating, or furthering a contention or fight between two or more persons, or a fight commonly known as a ring or prize fight. Defendant was charged with instigating and encouraging a fight between two women, Libbie Spann, alias Hattie Leslie, and Barbara Dillon, alias Alice Leary, and the affair, though arranged in New York, occurred in Canada.

Action by ltudolph Henry and another, trading as Henry Bros., against Nicholas F. Dietrich, for goods sold and delivered. There was a judgment for plaintiffs and defendant appeals.

Action by Giovanni Pullutro against the Delaware, Lackawanna & Western Railroad Company for personal injuries. Plaintiff was nonsuited, and moves for a new trial.

Action by Frank H. Brown against the Niagara Machine Company. Judgment by default was entered, and defendant appeals, and moves that the default be opened, and a new trial be granted.

<p>Appeal from trial term.</p>

<p>1. Descent and Distribution—Legacy Tax—Non-Resident Decedent.</p> <p>Both, real and personal property within this state, devised by a non-resident decedent, dying after the enactment of Laws N. Y. 1887, c. 713, § 1, extending the collateral inheritance tax to all property within this state which shall pass by the will of a non-resident, are subject to the tax.</p> <p>2. Same—Remainder.</p> <p>A vested remainder, limited on a life-estate, is subject to the tax.</p> <p>8. Same—Exemptions—Funeral Expenses.</p> <p>A bequest for maintenance of decedent’s burial plot is exempt as funeral expenses.</p>

<p>Change of Venue—Materiality of Witnesses.</p> <p>In an action for assault and battery, where defendant alleges that he was assaulted by, and did not assault, plaintiff, and asks fora change of venue for convenience of witnesses, the fact that no person other than he and plaintiff were present at the time of the alleged assault is no objection to his right to the change, as the witnesses may be material to show defendant’s condition after the alleged "assault.</p>

<p>Appeal from special term.</p> <p>Action by William H. Rice against Atmore L. Baggot for dissolution of a partnership, etc. Plaintiff appeals.</p>

<p>Husband and Wipe—Contracts—Accommodation Paper.</p> <p>Where promissory notes are executed by a wife to her husband as mere accommodation paper, they do not constitute contracts between them1; and under Laws N. Y. 1884, o. 881, giving to married women the power to contract as if they were unmarried, and making them and their separate estate liable on their contracts, whether they relate to such separate estate or not, but excepting from the provisions of the act all contracts between husband and wife, the bank which discounts such notes for the husband is entitled to recover thereon against the wife.1</p>

Action by Emelina P. Hayward, as a legatee under the will of Susan A. Place, against Barker Place as executor, and James K. Place as a beneficiary, under the will, and others, for an accounting. There was judgment for plaintiff, and defendants appeal.

Action by the Panama Railroad Company against Eiie S. Charlier and others to recover an alleged deficiency in Charlier’s accounts as cashier of plaintiff. There was judgment for plaintiff, and defendant Charlier appeals.

<p>1. Criminal Law—Evidence—Character.</p> <p>A witness called to testify to the previous good character of a person accused of larceny maybe asked, on cross-examination, what case he had heard of defendant’s being connected with some time before, referring to some criminal prosecution.</p> <p>2. Same—Riqht of Defendant to Testify—Instructions.</p> <p>An instruction that defendant has the right to testify in his own behalf, but that the law expressly provides that no presumption adverse to him is to arise from his failure to do so, and the fact that he does not avail himself of this privilege should not be permitted to prejudice him with the jury, is sufficient for the protection of defendant’s rights in this respect.</p>

Action by the United States Land Investment Company against the Mercantile Trust Company for specific performance of a contract, and for damages for breach thereof. An order was made directing the plaintiff to give a bill of particulars, and plaintiff appeals therefrom.

Action by Frank Rudd, receiver of the Goodwillie-Wvman Company, a corporation, against George H. Robinson, a trustee and stockholder in such corporation. Judgment was rendered requiring defendant to account, and he moves for a new trial on exceptions at the general term, under Code Civil Proc. N. Y. § 1001.

<p>1. Fraud—Intention—Evidence.</p> <p>In an action for damages for purchasing cattle with the intention of defrauding plaintiffs out of the purchase price it appeared that the sale was for cash, but that defendant sent his check for the price to plaintiffs in Massachusetts; that it was returned immediately to the bank for payment, and payment was refused; that in the mean time defendant had disposed of the cattle ana made an assignment; that his liabilities amounted to 844,000, and his assets to $8,000. Held, that the question of defendant’s intention to defraud plaintiffs at the time he made the purchase should have been submitted to the jury.</p> <p>2. Same—Former Transactions.</p> <p>Evidence of previous transactions of the same kind between the parties is admissible to show that defendant knew that he would be able" to dispose of the cattle be fore the check could be returned for payment.</p> <p>8. Same—Evidence.</p> <p>Where defendant, as a witness for plaintiff, testified that he thought some of his debtors became insolvent after the purchase, and that one N. owed him $2,700, it was error to exclude his answer to the question as to when N. became insolvent, as it would tend to show whether there had been any change in defendant’s financial condition after the purchase.</p>

Action by Edward Kilpatrick against Mary E. Burrow, executrix, etc., of Thomas H. Geraty, deceased, to recover money paid on a contract by defendant to sell plaintiff certain land in New York city, with which contract plaintiff alleged that defendant was unable to comply. Judgment for defendant for specific performance of the contract. Plaintiff appeals. For former report see 5 N. Y. Supp. 782.

<p>' Appeal from special term, New York city and county.</p> <p>Action by David Spero against the West-Side Bank of New York city, for the conversion of checks. The court made an order denying plaintiff’s motion to vacate an order requiring plaintiff to submit to an examination, as a witness in the action, before trial. Plaintiff appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Benjamin H. Tuthill against George W. Hussey and John N. Harriman on a promissory note. Verdict and judgment for plaintiff, and defendants appeal.</p>

Proceedings for the settlement of the estate of Oscar Strasburger. From so much of the judgment as rejects their claim for the same pro rata share decreed to the other creditors, Deutsch Bros, appeal.

The defendant Joseph Murray was indicted for assault, the indictment containing two counts, one for assault in the first and one in the second degree. Defendant was convicted on the second count, and appeals.

Action by Lewis Sanders against Agnes Gordon Soutter, William IC. Soutter, Emily W. Dix, and Eliza H. Bell, to recover for services as attorney and counselor at law, and for money advanced. On application of defendants, supported by the affidavit of their attorney, an order was made requiring the ■service by plaintiff of a bill of particulars, from which order plaintiff appeals.

Action by George C. Winchester against T. Quincy Browne. Defendant moved to strike out certain portions of the amended complaint, and to make other portions more definite and certain. The motion being denied, defendant appeals. For former reports, see 4 H. Y. Supp. 155, 6 H. Y. Supp. 913.

Action by Peter Hayden, William B. Hayden, Cotton H. Allen, and Bernard Reilly, sheriff of the city and county of New York, against the National Bank of the State of New York, to recover the sum of about $2,000, claimed to have' been attached in defendant’s hands.* Judgment entered upon dismissal of complaint. Plaintiffs appeal.

AppeaLfrom surrogate’s court, New York county. Application of Bache Cunard, ancillary administrator of Edward Cunard, for the examination of Charles G. Francklyn, as to personal property consisting of cash and securities, belonging to the estate of Edward Cunard, in his possession.

Indictment against William Glynn for robbery in the first degree. Pen.. Code N. 1!. § 224, provides that “robbery is the unlawful taking of personal property from the person, or in the presence of another, against his will, by means of force or violence, or fear of injury, immediate or future, to his person, or property, ” etc. Verdict of guilty, and defendant appeals.

Action by Susan R. Lawton to foreclose a mortgage made by George'-*B. Lawton, her husband. On petition of Jennie Mull Allaire an order was made, ■opening the decree of foreclosure and allowing her to become a party to„ the foreclosure action on certain conditions. From that part of the order which imposes conditions, petitioner appeals.

<p>Contracts—Interpretation—Negligence.</p> <p>A contract by which a contractor, who is about to extend a station platform fora street-railway company, agrees to indemnify the company for “ any damages arising from injuries sustained by mechanics, laborers, or other persons, by reason of accidents or otherwise, ” does not require him to reimburse the company for damages paid for the death of one of the contractor’s employes who was" killed by the-negligent operation of the company’s engine.</p>

Action by Clarence F. Swart, the assignee of a judgment creditor, against the Central Trust Company and others lo recover the remaining proceeds of a foreclosure sale of the judgment debtors’ lands, which proceeds were deposited with defendant subject to order of court. Judgment for defendants, and plaintiff appeals.

<p>Appeal from circuit court, New York county.</p> <p>Appeal from a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial.</p>

Action by Samuel Levy and another against the Mutual Life Insurance Company, for an injunction. A demurrer to the complaint was sustained, and plaintiffs appeal.

<p>Appeal from special term, New York county.</p>

<p>Appeal from special term, New York county.</p> <p>Action by James R. Watts against Samuel B. Adler for an accounting. The complaint was dismissed on trial, and plaintiff appeals.</p>

<p>Reference—Findings of Referee—Administrator’s Accounts.</p> <p>Code Civil Proc. N. Y. § 1023, providing that before a referee has rendered a decision he may make findings of'fact or rulings on questions of law, thereby prohibiting him from making them afterwards, applies only to issues arising on pleadings, and not to special proceedings; and a surrogate may send back a referee’s report on the accounting of an administrator for further findings on material questions of fact which the evidence tends to support, and on which the report is silent, though no requests to find were submitted before the report.</p>

Action by Louisa Williams and others against Samuel D. Folsom and others. An order was made for the examination of defendants before trial, and from ail order denying a motion to vacate the former order defendants appeal. For former reports, see 3 N. Y. Supp. 681; 5 Id. 211.

<p>Appeal from special term, New York county.</p> <p>Action by James M. Horton against William H. Childs, and one Bauer, to-foreclose a mortgage. Judgment for plaintiff, and defendants appeal.</p>

Action by Henry R. Pierson, receiver, against Andrew W. Morgan, on a contract of guaranty. Defendant having°died pending the action, it was revived against his administratrix, Justine M. Cronk. From a dismissal of the complaint, plaintiff appeals.

<p>Action by Bobert Macdonald and others against Anna Wallstein and others. Defendant Wallstein demurs to the complaint.</p>

Action for libel by Daniel E. Bandmann against George Jones, as treasurer of the New York Times, a joint-stock association. Defendant obtained an order for the examination of plaintiff before trial, which plaintiff moved to vacate. His motion was denied, and he appeals. Code Civil Proc. H. Y. § 870, relates to taking the deposition of a party to an action before trial, and section 872 specifies what shall be the contents of the affidavit for such examination.

<p>Appeal from surrogate’s court, New York county.</p> <p>Motion to vacate the probate of the will of Rosalie Florance. The motion whs made by the husband of deceased, who appeals from an older denying the same.</p>

<p>Appeal from special term, New York county, o Action by Nathan S. Starr against Sarah M. Starr and others for the partition of two parcels of land. From an interlocutory and a final judgment Sarah M. Starr appeals.</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Thomas Moran was indicted for an attempt to commit grand larceny in the second degree. He was convicted, and appeals.</p>

<p>1. Insurance—Application—Warranty—Forfeiture.</p> <p>An application for insurance warranted the answers to be full, correct, and true, and stipulated they should be part of the contract of insurance. The policy referred to the application as a part thereof, and provided that every person acquiring any interest in the contract adopted the application and statements contained therein as his own, admitted them to be material, and warranted them to be full and true. The application of the assured turned out to be untrue as to the facts of his consulting a physician, and having on two occasions been an inmate of a hospital. Held, that the company was relieved from liability on the policy.</p> <p>2. Same—Application Written by Agent.</p> <p>The application warranted the answers and statements thereof, whether written by the applicant by;his own hand or not, to be full and true. The policy provided that it was issued in consideration of the application, which was made a part of the contract, and in consideration of each of the statements made therein, “which, whether written by his own hand or not, ” every person accepting or acquiring an interest in the contract adopted as his own. Held that, as the assured assumed the acts of the agent, and bound himself for the truth of the statements contained in the application, he could not he relieved by the fact that the agent hird acted faithlessly in filling out the application.</p> <p>S. Same—Waiver op Forfeiture.</p> <p>The policy provided that “no agent of the association has authority to make, alter, or discharge contracts, waive forfeitures, * * * and no alterations of the terms of this contract shall be valid, and no forfeiture thereunder shall be waived, unless such alterations or waiver shall be in writing, and signed by the president, ” etc. Plaintiff, the assignee of the policy, before the assignment, consulted an officer of the company as to the regularity and validity of the policy, and the agent represented the policy to be a valid security. It did not appear that at that time any information of the fact of the answers being untrue had been brought to the attention of defendant or the agent. Held, that the agent's representations to plaintiff would not preclude defendant from taking advantage of the untruthful statements in the application, as the agent could not waive any forfeiture.</p>

Action by Baruch and Herman Wolf against Harris Strahl and another, for goods alleged to have been sold to defendants. After trial, in which Harris Strahl alone defended, judgment was rendered, dismissing the complaint, with costs. Plaintiffs appeal.

<p>Motion for an order for the restitution of moneys paid to the comptroller of the city of New York for collateral inheritance taxes.</p>

<p>Appeal from surrogate’s court. New York county.</p> <p>David A. Hall, sole legatee and devisee under the last will and testament of David F. Hall, deceased, appeals from an order of the surrogate, directing the ancillary executor to pay a collateral inheritance tax, amounting to the sum of $12,419.94, with interest.</p>

<p>1. Wills—Competency—Evidence.</p> <p>The facts that testatrix, who by will left her property to charitable institutions, was of advanced age, nnable to read or write, of a capricious disposition, and that she had stated an intention of leaving everything to her relatives, it being shown that she was excitable, and easily took offense at her relatives, do not suffice to establish the incorapetency of testatrix, where it appears that she understood the contents of her will, and designed it to be her testamentary act.</p> <p>3. Same—Due Execution.</p> <p>In support of a will leaving all testatrix’s property to charitable institutions, to the exclusion of her nieces, who were her nearest relatives, it was proved by her attorney that the instrument in question was the one which he had drawn up as her will, at her request, and according to her instructions, and read to her; and the two subscribing witnesses testified that testatrix had signed the instrument in their presence, and that they had signed the same as witnesses, on being told it was decedent’s will, and requested to sign it, either by decedent herself or by her attorney, in her presence; and it was also proven that decedent had told an acquaintance that she had left her property to charitable institutions. Held, that the proper execution of the will was established.</p> <p>S. Same—Revocation.</p> <p>The fact that testatrix, who had made a will leaving everything to charitable institutions, before her death became dissatisfied with it, and had another will drawn up, leaving everything to her relatives, intending to execute it, but, before the time assigned for the execution became unconscious, and remained so until her death, is not a sufficient revocation of the first will, under 3 Rev. St. N. Y. (6th Ed.) p. 63, § 40, which provides that, to constitute a revocation of a previous will, there must be some other will in writing, or some other writing declaring the revocation, etc., or that the instrument has been burned, torn, canceled, etc.</p>

Action by Alonzo Reich against Alice S. McCrea, to recover the amount of an alleged loan. After verdict for plaintiff on a trial before Justice Ehrlich, the latter denied defendant’s motion for a new trial. Afterwards a motion by defendant for a new trial was made and heard on affidavits before Chief Justice McAdam, who granted a new trial, and plaintiff appeals.

<p>Appealable Orders.</p> <p>An appeal will be granted to the court of appeals from a decision of the general term of the common pleas that a person who has filed a mechanic’s lien under Laws N. Y. 1885, c. 348, § 6, and is made a party defendant to a foreclosure suit by another lienholder, need not file a lis pendens in order to continue his lien, as the act is general and the question may be controverted.</p>

<p>On motion for reargument. For former report, see 6 H. Y. Supp. 662.</p>

Action by Hilda Anderson against the John Hancock Mutual Life Insurance Company, on an insurance policy held by plaintiff, for her benefit, on the life of her child. Judgment for plaintiff, and defendant appeals.

Action by John Hourney against the Brooklyn City Railroad Company, for injuries sustained by plaintiff from a collision between defendant’s car, on which he was riding, and another. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

<p>1. Bailroad Companies—Construction op Barm Crossings—Damages.</p> <p>In an action to compel defendant to construct a farm crossing over its tracks it appeared that defendant’s tracks traversed plaintiff's farm along-side the tracks of another company which had previously constructed a crossing at the point desired by plaintiff. At this point defendant’s tracks were 13 feet above grade, on a solid embankment, and in order to get across defendant’s tracks it was necessary for plaintiff to pass between the two railroads a distance of 550 feet, to a crossing erected by defendant at the point where its tracks entered the farm. Held, that evidence of the value of the farm, and the cost of hauling by reason of the location of the crossing by defendant, was competent as bearing on the question whether the court should exercise its equity power, and order a crossing, or give such damages as plaintiff had sustained by reason of failure to place a crossing at a suitable and convenient point, in case defendant’s erecting such crossing should be disproportionate to the value of the property.</p> <p>3. Same—Location of Crossing—Bights of Owner.</p> <p>The fact that defendant constructed a crossing at a remote and inconvenient point is no reason why it should not be required to build one where it is most convenient and useful. Although the right to locate a crossing is with the defendant, the interest and convenience of the owners are to be considered.</p> <p>8. Same—Estoppel—Condemnation Proceedings.</p> <p>The proceedings taken by defendant to condemn the land, and damages paid to the owner for the right to cross, do not preclude plaintiff from suing to compel the construction of a crossing, and the compensation for damages does not include or provide for the inconveniences suffered from failure to build the crossing.</p> <p>4. Same—Evidence—Bindings of Court.</p> <p>Several-witnesses testified to the fact that defendant’s tracks were 13 feet above the level of the tracks of the other road at the point where the latter road had erected the crossing, and that defendant’s tracks were on an embankment about 13 feet high. Held, that the evidence sustained the finding by the court that it is impossible for a team and wagon to cross defendant’s tracks at this old farm road as the defendant’s embankment now is, and that said old farm road had been used as an outlet to said farm for many years.</p> <p>5. Same.</p> <p>As the evidence showed that plaintiff could not get to the crossing as located by defendant without passing 550 feet over the lands of defendant or the other railroad, a finding that he was “completely cut off from all connection with the easterly portion of his farm” without trespassing on the lands of another was proper.</p> <p><5. Same—Adjoining Owner—Intervening Lands.</p> <p>The fact that the lands of the other railroad intervene between the lands of defendant and those of plaintiff on one side does not prevent plaintiff from being within the statute as “proprietor of lands adjoining such railroad. ”</p> <p>7. Same—Boreign Corporation.</p> <p>The fact that defendaut is a foreign corporation does not exempt it from the obligation to erect farm crossings imposed under the laws of New York.</p> <p>8. Same—Duty of Lessee.</p> <p>Defendaut was a lessee of the railroad under a lease which provided that it should use and operate the railroad, and “do and perform the acts and things which the [lessor,] as owner of the property and franchises, * * * would be bound by law to do and perform had this indenture not been made. ” Held, that the duty of the lessor to construct a farm crossing became the duty of defendant, as lessee, and the latter could be compelled by a farm owner to build the crossing.</p> <p>0. Same—Sale of Land—Bights of Vendor.</p> <p>Defendant was not absolved from liability to build the crossing by the fact that the person who owned the farm at the time the railroad was built had sold it to plaintiff, as the duty to construct the crossing was not owing to the owner as an individual, but to him as the owner of the farm benefited by the crossing, and no release of the obligation to build the crossing had been executed.</p>

Action for personal injuries, by Adalbert E. Ireland against G. Clinton Gardner, receiver of the Buffalo, New York & Philadelphia Railroad Company. Plaintiff obtained a verdict for $80,000, and from a judgment thereon, and an order denying his motion for a new trial, defendant appeals.

<p>Sale—Rescission oe Contract—Replevin. .</p> <p>In an action for the price of goods sold, an attachment was issued on an affidavit which alleged that the sale was made in reliance on defendant’s representations as to his financial condition; which representations were false, and must have been known by defendant to be false when he made them. The attachment was issued on the ground that defendant had made an assignment in fraud of his creditors. Plaintiffs afterwards discontinued this action, and brought replevin for the goods. Held, that plaintiffs’ right to maintain replevin depended solely on whether they knew, when they sued for the price of the goods, that defendant had purchased the same with a fraudulent intent; and an instruction which went beyond this, and made plaintiffs’ right to depend partly on their knowledge of their legal right to rescind the sale, and partly on the fact whether plaintiffs were aware of their remedy by replevin, was erroneous.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action' by Arthur Furber against Alexander L. McCarthy and another on an undertaking executed to obtain the arrest of plaintiff's assignor. From a ■judgment dismissing the complaint after trial by the court plaintiff appeals. For former reports, see 4 N. Y. Supp. 274; 5 N. Y. Supp. 947.</p>

<p>1. Deed—Construction—Trust-Deed.</p> <p>Where a grantor executes a deed conveying land in trust for two of his grandsons, in which he directs that if either of them should die under 30 years of age, leaving no child surviving him, his share should be conveyed, assigned, and delivered to his surviving brother, the property on the death of one of the grandsons is to be conveyed directly to the survivor, though he is a minor.</p> <p>2. Same—Accumulations.</p> <p>A deed conveying land in trust for J. and R., in which it was directed that the trust fund should, on the death of either without children, go to the survivor, provided, further, that the trustee should receive the rents and profits of one-half .of the trust property, and apply them for the support of J., and that any surplus should be allowed to accumulate for'J.’s benefit, and be paid over to him on his becoming 21 years of age. Reid, that such accumulations vested immediately in J., and became his property, and did not constitute part of the trust fund which, on J.’s death, would go to his surviving brother.</p>

<p>1. Fraud—Presumption—Chattel Mortgages.</p> <p>In the absence of circumstances showing bad faith, the assignment of $50,000 of personalty to secure $18,000 of debts does not raise a presumption of fraud.</p> <p>2. Trusts—Assignment to Secure Debts.</p> <p>An assignmentof personalty to a creditor as security, and a subsequent assignment to other creditors of the surplus that may arise, do not make the first assignee a trustee for the other creditors; nor does the transaction create a trust.</p> <p>8. Assignment for Benefit of Creditors—What Constitutes.</p> <p>An assignment of personalty by a debtor to one of his creditors, and a subsequent assignment of any surplus that may arise to other creditors, do not constitute a general assignment within the general assignment act of 1877, (Laws N. Y. 1877, c. 466.) and are not void under Laws N. Y. 1887, c. 503, amending said act, and providing that “in all general assignments preference created therein shall not be valid except to the amount of one-third in value of the assigned estate. ”</p>

Action by Charles G-. Smith against S. Morris Pryor and others. From a judgment entered on verdict in defendants’ favor, and from an order denying •a new trial, plaintiff appeals.

<p>•Attorney and Client—Estoppel to Deny Authority.</p> <p>A party, by availing himself of a bond procured by his attorney to open up a default, thereby ratifies the act of Ms attorney, and is liable to the sureties for the amount they are obliged to pay on their undertaking.</p>

Action by James P. Burns against Joseph A. Monell, for slander in calling plaintiff a “perjuring thief.” Defendant admitted the charge, and in justification alleged that it is true, and that, in a civil action between them, plaintiff willfully and corruptly testified falsely, by reason of- which judgment was rendered in his favor. Plaintiff moves for judgment on the answer.

Action to recover damages for negligence, by Frances M. Taylor against the Brooklyn Elevated Railroad Company. Before trial, defendant made tender of a sum of money to plaintiff, which, being refused, was deposited by defendant in court. On trial, there was a verdict for plaintiff, and thereupon both parties applied for the money. From an order awarding it to plaintiff, defendant appeals. Code Civil Proc. IT.

On application of the relator, Ellen Nostrand, an order was made at the special term for a peremptory writ of mandamus against Thomas A. Wilson and others, of the board of assessors, for correction of the assessment roll; and from this order defendants appeal.

<p>Negligence—Evidence—Veedict.</p> <p>In an action for personal injury to plaintiff while riding in one of defendant’s horse-cars, it appeared that, as the car was passing over a draw-bridge, a key and pole, weighing about 300 pounds, fell, one end of the pole projecting about three feet into the car, and causing the injury. The pole and key, when not used for operating the draw-bridge, were hung up on two railroad spikes, driven in a slant into the trestle-work near the track. The evidence was conflicting, but tended to show that the undue rate of speed of the car caused the bridge to oscillate, and dislodge the key and pole. The driver testified that he “was always afraid of an accident,—was always afraid it would falland that he knew, if he “went over on a trot, it would shake the bridge, ” and “the faster you go the more it will shake the bridge. ” Meld, that a case was made calling for submission to the jury of the question of the negligence of defendant’s driver.</p>

On application for certiorari. William Tucker, a telegraph operator of the fire department in the city of ' Brooklyn, was dismissed, without trial, by John Ennis, the commissioner of the fire deparment, and brings certiorari to review the proceedings.

<p>Motion to modify an order of the general term imposing terms as a condition for opening defendant’s default. See 5 IT. Y. Supp. 958.</p>

<p>1. Public Improvements—Assessments.</p> <p>The charter of Buffalo, (title 9, § 18,) as originally passed, provided that no work or improvement, the probable cost whereof exceeded 8500, should be ordered until notice of intention to order it should first be published six times in the official paper. Section 19 prohibited the city from entering into a contract for any work exceeding said sum until a notice had been published in the official paper inviting sealed proposals for the work, or until the assessment should be confirmed. Laws 1878, c. 395, amended section 19 so that, in case a majority of the property owners on the street where the work was to be done petitioned for the improvement, publication of such notice might he dispensed with, and the contract might he let before confirmation of the assessment. Laws 1879, c. 486, excepted from the requirements of section 19, as to publication of notice for proposals and confirmation of assessments, contracts for street sprinkling, hut Laws 1885, c. 181, repealed this provis- . ion, and left the section as it stood before 1879. -Held, that a notice of the intention to provide for sprinkling the streets was essential to the validity of an assessment for that purpose, as the amendments mentioned did not affect section 18.</p> <p>2. Same—Cloud on Title.</p> <p>Though an assessment is no lien on land until the roll is delivered to the city treasurer, as provided by the charter, (title 7, § 1,) equity will enjoin its enforcement, if illegal, as a cloud on title may be prevented as well as removed.</p> <p>8. Same.</p> <p>As proof of publication of the notice mentioned need not be attached to the assessment roll, and there is nothing in the roll to indicate a non-compliance with the statute, the assessment apparently constitutes a lien, and the rule that equity will not relieve against that which' is not apparently a lien does not apply.</p>

<p>Appeal from trial tern.</p>

<p>On demurrer to defendant’s answer.</p> <p>Action by Robert Chilcott and another against the city of Buffalo, to annul an assessment.</p>

<p>Abatement and Revival—What Actions mat be Revived.</p> <p>An action for an injunction, in which incidentally damages for the maintenance of a railroad are demanded, is not an action for trespass, and on the death of plaintiff may be revived in the name of his devisee and executor.</p>

<p>Application to vacate judgment on a recognizance.</p>

<p>Appeal from city court, general term.</p> <p>Action by Henry Saling against the German Savings Bank in the city of New York. Judgment for defendant, and plaintiff appeals.</p>

Action by Paul Zunz against James H. Heroy, David J. Marenner, and William W. Heroy, for an accounting. Defendants filed counter-claims. There was judgment for plaintiff, ordering that an account be had before a referee, and dismissing defendants’ counter-claims. Defendants appeal.

Action by Shirley J. Green against Noah B. Shute and Charles 0. Bailey. Defendant Shute appeals from a judgment of the general term of the city court affirming a judgment of the trial term of said court, entered on the verdict of a jury directed by the court for the sum of $1,082.70; and from an order of said general term affirming an order of the trial term denying defendant’s motion for a new trial on the minutes.

Action by Shirley J. Green against Sbah B. Shute, impleaded with Charles O. Bailey. Defendant Shute appeals from an order of the general term of the city court dismissing, with costs, an appeal from an order of the special term of said court denying defendant’s motion to resettle the case on his appeal from the judgment in this action.

<p>Pleading—Countee-Claim—Replication—Bueden of Peoof.</p> <p>In an action for the value of goods sold, defendants set up for counter-claim a contract for premiums on sales, alleging compliance with the terms of the contract. The replication admitted a contract, but alleged that it contained an express stipulation of forfeiture for the failure of defendants to perform certain conditions, and that defendants had failed as to such conditions. Held, that defendants were only required to show general compliance with the terms of the contract, and that the burden was on plaintiff to prove such particular acts of non-compliance on the part of defendants as amounted to the alleged forfeiture.</p>

Action by Edward Vernon against James A. Simmons, on an account stated. From a judgment of the general term of the city court, affirming a judgment entered on a verdict in plaintiff’s favor, and from an order denying his motion for a new trial on the minutes, defendant appeals.

<p>1. Examination of Party before Trial—Natural Persons.</p> <p>An order will not be granted, at plaintiff’s instance, under Code Civil Proc. N. Y. § 873, for the examination before trial of an adverse party who is a natural person, where the issue between them is simply one of veracity and credibility, where no peculiar circumstances appear to make the case different from ordinary cases of the same character, where it is not alleged that any documentary evidence is in the possession of such adverse party, or it is not shown that such oral evidence as he may give cannot be just as well given at the trial.</p> <p>2. Same—Corporations—Production of Documents.</p> <p>In an action by a stockholder against a corporation for false representations, where plaintiff’s affidavit avers that out of certain documents in possession of the company or its officers he will be able to deduce proof of the falsity of the representations to be used at the trial, etc., an order will be granted him under Code Civil Proc. N. Y. §§ 870-873, for the examination before trial of the officers, and the inspection of such books and papers, of the corporation, but the examination will be confined to official matters and acts of the company in connection with the books and documents produced.</p>

Action by Edith Kane against the Metropolitan Elevated Railway Company and the New York Elevated Railway Company. Plaintiff obtained a judgment against both defendants at the trial term, and on appeal (6 N. Y. Supp. 526) this was affirmed, with costs, as to the New York Elevated Railway Company, but reversed, with costs, as to the Metropolitan Elevated Railway Company.

Action by Albert Dunkell against Henry P. Simons and Frederick G-. Cunningham, trading as H. F. Simons & Co., to recover damages for plaintiff’s alleged wrongful discharge from defendants’ service. From a judgment affirming the judgment of the trial term in plaintiff’s favor, defendants appeal. For the facts and former opinion, see 5 H. Y. Supp. 417.

On motion for restitution. Action of Ellen T. Hayes against Charles J. Hourse, Jr., an assignee, to recover purchase money paid on lands. A judgment for plaintiff was affirmed at the general term, and the judgment paid by defendant. Subsequently the judgment was reversed by the court of appeals, (see 22 H. E. Eep. 40,) and now defendant asks restitution.

<p>On motion to refund money paid on forfeited recognizance. For former report, see 5 Y. Y. Supp. 957, mem.</p>

<p>Bail—Judgment on Forfeited Recognizance—Vacation.</p> <p>Defendant was produced by his surety on the day set for trial, but, complainant failing to appear, though subpoenaed, the case was adjourned to another day, when defendant was again produced; complainant again failing to appear, after having been subpoenaed. Afterwards the case was again called, and neither defendant nor complainant appearing, neither having been summoned, defendant’s recognizance was forfeited. The surety afterwards surrendered defendant, and he was discharged; complainant again failing to appear. Held, that the judgment on his recognizance should be vacated.</p>

<p>On motion to vacate judgment on a forfeited recognizance against Samuel Samuels, principal, and Julius Israels, surety.</p>

<p>On motion to vacate judgment on a forfeited recognizance against Frank A. Smith, principal, and Francis J. Fitzpatrick, surety.</p>

<p>Bail—Judgment on Forfeited Recognizance—Vacation.</p> <p>The certificate of the district attorney is not sufficient proof that the state lost no rights by failure of a prisoner, afterwards acquitted, to appear according to the obligation of the recognizance, but the facts must also be shown in detail, in order that the court may determine the question. '</p>

<p>Application to discharge a judgment and forfeited recognizance, in which Louis Baer was principal, and Jacob Goldstein surety.</p>

<p>Application to discharge a judgment and forfeited recognizance, in which James Brady was principal, and Oscar J. Mayer surety.</p>

<p>Application to discharge a judgment and forfeited recognizance, in which Patrick Flynn was principal and Patrick J. Carroll surety.</p>

<p>. Motion for a reargument. For former report, see 5 N. Y. Supp. 447.</p>

<p>Bail—Judgment on Forfeited Recognizance—Vacation.</p> <p>A judgment on a forfeited recognizance will be vacated, where the surety after-wards produces the accused in court, and he pleads guilty, and pays a fine.</p>

Action of Angelena C. Lockwood against the Twenty-Third Street Railway Company for damages on account of personal injury. Trial by jury, and verdict for plaintiff. From the judgment entered on the verdict, and from an order denying a motion for a new trial, defendant appeals.

<p>Motion for reargument, or for leave to appeal to the court of appeals.</p> <p>For statement and former opinion, see 6 FT. Y. Supp. 531.</p>

<p>1. Mechanics’ Liens—Abandonment bt Contractor—Rights of Subcontractors.</p> <p>Where the owner has entered into a contract, and made payments under it, for work done on his building, and the contractor has abandoned the work before completion, it is competent, in an action by subcontractors to enforce their liens, for the owner to prove how much of the work the contractor left undone, and what it has cost to complete it in the manner provided by the contract.</p> <p>2. Same—Payment to Contractor.</p> <p>The mechanic’s lien law of 1885, (Laws N. Y. 1885, c. 342, § 2,) which provides that if the owner shall, for the purpose of avoiding the provisions of this act, or in advance of the terms of any contract, pay by collusion any money on such contract, and the amount still due shall be insufficient to satisfy the claims, the owners shall be liable to the amount that would have been unpaid had no such payment been made, does not apply, where the owner has made a payment in advance, without collusion.</p>

<p>Appeal from trial term.</p> <p>This action was begun on the 25th day of June, 1879. The answer was served on the 4th day of August, 1879. It was tried before the court and a jury, February 9, 1881, and the complaint was dismissed, on motion of defendant’s counsel. After the proofs on the part of the plaintiff were in, a judgment was entered in favor of defendant, from -which plaintiff appeals. The action was brought to recover damages for the death of the plaintiff’s-intestate, Mary Ellen Mallard, who was killed on the 10th day of May, 1879, by being run over by a horse-car at the corner of Greenwich and Spring streets* in the city of ¡New York.</p>

Action by Mary Walsh against the Bowery Savings Bank, to récover money deposited with defendant by oneMary Duffy, (since deceased,) and given by her before her death to plaintiff.

Case submitted upon agreed statement. Certain institutions for the insane having refused medical certificates on the ground that they were approved on different days and by different judges, the question of their validity has been submitted to the court.

Action by William 0. Ilslay, Chester P. Doubleday, and Edwin S. Doubleday, constituting the firm of Ilslay, Doubleday & Co., against Thomas S. Smedes, on a promissory note payable to B. F. Watkins and assigned to plaintiffs. The defense was conversion of collateral security, the evidence of which was excluded by the court, and a verdict directed for plaintiffs, and from judgment entered thereon defendant appeals.

<p>Question of construction submitted to the general term, in view of the dictum reported ante, 157, in reference to the non-applicability of section 572 of the Code to defeated plaintiffs.</p>

Two actions by James S. Begley against John C. Short. There was judgment against defendant by default, and an order was entered opening default upon terms. From this order, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by William Freeland against Bichard 8. Bacon and others. Judgment was entered on a verdict for plaintiff. Defendants appeal.</p>

This was an action by Origen Vandenburgh against the New York City Central Under-Ground Bail way Company, the New York Under-Ground Bail way Company, the mayor, aldermen, and commonalty of the city of New York, and others. There was a judgment for the plaintiff. Subsequently the court granted a motion to amend the judgment made by the last-named defendant, and the other parties appeal.

Action by Oliver S. Carter and Henry E. Hawley against the New York Elevated Railroad Company and the Manhattan Bailway Company, to recover damages to abutting property by the operation of defendant’s railway, and to restrain its further use. Judgment for plaintiffs, and defendants appeal.

<p>Appeal—Review—Inconsistent Findings.</p> <p>Where an appeal is taken on exceptions to the conclusions of law, and there is a separate and distinct finding of fact, unqualified in form, in irreconcilable conflict with the conclusions of law and the judgment, the judgment cannot stand, though from the other findings, which fully sustain the conclusions of law and the judgment, it appears that the finding was made by inadvertence.</p>

Action by William B. Tremaine against William Y. Mortimer and others. Plaintiff appeals from an order vacating and setting aside the verdict of a jury in favor of the plaintiff, and directing judgment dismissing the complaint.

Action by Frederick L. Degener against John T. Underwood and others. An order of reference was entered, and an order denying defendants’ motion to vacate the same. Defendants appeal.

<p>1. Judgment by Default—Unauthorized Appearance by Attorney—Relief.</p> <p>Relief from a judgment entered as on a default to answer, on the ground of an unauthorized appearance by an attorney, can only be had by an application to the court which rendered the judgment to set it aside.</p> <p>2. Same.</p> <p>The defendant in such judgment, to entitle herself to relief, must show that she has a defense on the merits.</p> <p>Truax, J., dissenting.</p>

On demurrer to complaint. Action by William F. Kip against the city of Buffalo, for his salary as secretary of the civil service commission of said city, for the period of six months.

<p>Motion for new trial upon exceptions.</p>

<p>Executors and Administrators—Accounting—Examination of Executor.</p> <p>A contestant, who has been duly cited, but has filed no objections to an executor’s account, is not entitled to cross-examine the executor, in proceedings had on, a reference to try the issues raised by objections to the executor’s accounts.</p>

Action in the name of John W. Bellinger, overseer of the poor of the town of Kirkland, against J. Allen Birge, for penalty for selling intoxicating liquor without license. Laws 3ST. Y. 1857, c. 628, § 13, provides a penalty of $50 for sales of spirituous liquors in quantities less than five gallons, without a license. Section 22 provides that the action for such penalty shall be brought in the name of the overseers of the poor of the town in which it is incurred.

<p>1. Assignment foe Benefit of Creditors—Confession of Judgment.</p> <p>Judgments confessed in favor of certain creditors by a debtor, in contemplation!, of a general assignment, constitute preferences, within the prohibition of Laws N".. Y. 1887, c. 503, relating to assignments for the benefit of creditors.</p> <p>2. Same—Rights of Creditors—Refusal of Assignee to Sue.</p> <p>On the refusal of the assignee for benefit of creditors to sue to set aside as fraudulent judgments confessed by the assignor in contemplation of a general assignment, the general creditors may sue for that purpose.</p>

<p>Application for mandamus.</p>

<p>1. Trusts—Resulting Trusts—Lease.</p> <p>Under Rev. St. N. Y. (7th Ed.) p. 2181, § 51, which provides that where a grant for a valuable consideration shall be made to one person, and the consideration shall be paid by another, no use or trust shall result in favor of the person by whom such payment shall be made, no trust will result in favor of a person who contributes the money with which a lease is purchased for a third person.</p> <p>2. Equity—Jurisdiction—Pleading.</p> <p>Though no trust results, equity will relieve on the ground of fraud, and a complaint is sufficient which avers that plaintiff spent a large sum of money in improving the premises, and that “defendant took the assignment of the lease in trust for the plaintiff, well knowing not only that the moneys expended in procuring the lease, but those for the erection and construction of the buildings, belonged to her. ”</p>

<p>1. Interpleader—When Maintainable.</p> <p>Where there are two claimants to part of a fund, one who admits that the entire fund is due from him may maintain a bill of interpleader to compel them to ascertain their shares.</p> <p>2. Same—Tender.</p> <p>But he must bring the amount admitted to be due into court.</p> <p>8. Demurrer—Objections Waived.</p> <p>Where defendants demur on the ground that the complaint does not state a cause of action, they cannot thereafter object to plaintiff’s legal capacity to sue.</p>

At chambers. Proceedings to condemn lands for elevated railroads. Laws H. Y. 1850, c. 140, § 13, (3 Eev. St., 8th Ed., p. 1742,) provides that when any railroad company is unable to purchase realty necessary for its purposes it may acquire title by certain prescribed special proceedings.

Action by Mary Wall against the Delaware, Lackawanna & Western Railroad Company, for the alleged wrongful and negligent killing of William Wall. Prom a judgment entered on the verdict of a jury for plaintiff, and from an order denying a motion for new trial, defendant appeals.

<p>1. Reference—Action of Tort—County Clerk.</p> <p>An action against the clerk of a county to recover money paid him upon false and fraudulent claims for services and money expended for the county, founded on Code Civil Proc. c. 16, tit. 1, art. 4, allowing an action in the name of the people for the misappropriation of public property, is an action sounding in tort, and hence the court is not authorized to compel a reference.</p> <p>2. Same—Account.</p> <p>Though it may be necessary to establish the damage sustained by resort to defendant’s bills, they do not constitute an account between the parties.</p>

<p>Corporations—Action on Note—Notice op Issues.</p> <p>An action against a domestic corporation by an indorser of its accommodation paper, to recover for payment of protested notes, is an action to recover damages for non-payment, within the meaning of Code Civil Proc. N. T. § 1778, providing that in an action against a foreign or domestic corporation, to recover damages for non-payment of a promissory note, unless defendant serves with a copy of his answer or demurrer a copy of an order of the judge directing that the issues presented by the pleadings be tried, plaintiff may take judgment, as in case of default in pleading, at the expiration of 20 days.</p>

Action by Willard Johnson against the Thompson-Houston Electric Company, to compel the removal of an electric light pole erected in the street in front of plaintiff’s premises. From a judgment in plaintiff’s favor defendant appeals.

<p>Fraudulent-Conveyances—Fictitious Debts.</p> <p>• _ A deed to secure two debts of the grantor to the grantee, one of which is fictitious, though the other is actually due, is void ab initia, as against creditors of the grantor, and cannot stand as security even for that debt which is actually due.</p>

Action by Joseph H. Beckwith, an infant, by John H. Beckwith, his guardian, against the New York Central & Hudson River Railroad Company, for damages sustained by reason of his being struck by a passing train on defendant’s road. Judgment was entered on a verdict for plaintiff, and a motion for a new trial on the minutes was denied. Defendant appeals.

Action by John H. Beckwith, as administrator of Walter Beckwith, deceased, against the New York Central & Hudson River Railroad. Company for the negligent killing of plaintiff’s decedent by a train on defendant’s road. Judgment was entered on a verdict for plaintiff, and a motion for a new trial on the minutes was denied. Defendant appeals.

Action by Thomas Hogan against Wilmot E. Burton, for breach of contract. There was judgment for plaintiff, from which, and from a denial of his motion for a new trial on the minutes, defendant appeals.

The defendant, A. B. Carr, was charged with larceny, B. A. Andrus being the prosecutor. Code Grim. Proc.

<p>Railroad Companies—Injuries to Persons on Track—Instructions.</p> <p>In an action against a railroad company for the killing of plaintiff's intestate, caused by defendant’s alleged negligence in not having a head-light on its locomotive, a verdict in plaintiff's favor on conflicting evidence will not be disturbed where the question respecting the light was submitted to the jury in the following language: “AVas it because there was no head-light that he did not discover the train, and thus avoid the accident? If you are satisfied of that, then the defendant was negligent; and if the plaintiff was free from negligence the defendant is liable. ”</p>

Action by Edmond E. Ryerson against Milly Ann Ryerson, his wife, to dissolve the marriage. From a denial of his motion for judgment on report of a referee, plaintiff appeals.

<p>Wills—Construction—Duration of Estate.</p> <p>Testatrix gave her husband all her property on condition that he execute to testatrix’s daughter, E., a bond and mortgage of certain of the property, “to secure the payment of $2,000 to my said daughter, should my said husband marry again. * * * It is my will that if my boloved husband remain single he shall enjoy the benefit of the property given, devised, and bequeathed as above for and during his natural life, and from and immediately after his decease I devise and bequeath the said property to my beloved daughter, E., and her heirs forever. ” Meld, that the husband had a life-estate in all the property on condition that, in case he remarried, he execute the mortgage for the payment of $2,000 to the daughter..</p>

Action by John B. Lent and Henry M. Taylor, special guardian of John B. Lent, against the New York & Massachusetts Railway Company, on an award of commissioners of appraisal of land condemned by defendant. Judgment for plaintiffs, and defendant appeals. Code Civil Proc. N. Y. § 446, provides that all persons interested in an action may be joined as plaintiffs.

Action by Mary L. Morgan against the New York & Massachusetts Railway Company on an award of commissioners of appraisal of land condemned by defendant. Judgment for plaintiff, and defendant appeals. 3 Rev. St. N. Y. (8th Ed.) p. 1745, § 18, provides that a certified copy of the order confirming an award of appraisers in condemnation proceedings shall be recorded “in the clerk’s office of the county in which the land described in it is situated.

Action by Frederick Dolle against Charles D. Rhinehart, sheriff, and Patrick Monaghan, to recover personal property seized under execution. Trial by jury, and verdict for plaintiff, and from the judgment entered thereon defendants appeal.

Action by Evelina Banker against James A. Fisher and John S. Ferguson and another, to recover money paid by plaintiff on a contract to purchase land, on the ground that the title was not good, as represented. After the jury had rendered their verdict, plaintiff moved the court to allow exceptions, which motion was denied. Plaintiff appeals.

Action by Stephen B. M. Stokes, as sole trustee for the benefit of Mary A. Hewitt, under the last will and testament of Caroline L. Stokes, deceased, against Bichard Amerman, Eleanor Amerman, and others, to subject land held in the name of his wife to the satisfaction of a judgment against Richard Amerman. Eleanor Amerman appeals from a judgment overruling her demurrer to the complaint.

Action by Lemuel Coffin and others against William H. Hollister, Jr., assignee of Perry E. Toles and Phineas S. Pettit, individually and as copartners under the firm name of Toles & Pettit. From a judgment for defendant, plaintiffs appeal.

Action by Alexander Cameron against the Tribune Association for libel. Judgment on verdict for plaintiff, defendant’s motion for new trial denied, and defendant appeals.

Action by the Barber Asphalt Paving Company against James Brand and Matthew Taylor, impleaded with the National Vulcanite Company. Defendants Brand and Taylor separately demurred to the complaint, and from a judgment overruling their demurrers they appeal.

<p>1. Contract—Construction—Excavating—Blasting.</p> <p>Where plaintiff contracted to do “all the excavating” in building a house for a-certain sum, and upon discovering rock it was agreed that the expense of blasting it should be borne by him and defendants equally, the settlement was a fair one, and he is entitled to recover the amount agreed on in addition to the contract price,, as the term “excavating” does not necessarily include blasting.</p> <p>2. Mechanics’ Liens—Contract—Ratification by Owner.</p> <p>Though a person may not be a part)' to the contract for the building of a house,, proof of her knowledge and approbation of the work is sufficient to subject her interest in the land on which it is built to the operation of the builder’s lien.</p>

Action by John R. Price, a general creditor of Asa Morehouse, against. Thomas A. Mapes, assignee for benefit of creditors of Asa Morehouse and Linn Morehouse, to set aside a sale of the real property of Asa Morehouse, made by Mapes, as assignee, to Linn Morehouse, on the ground of collusion, and fraud. The complaint was dismissed, with costs, and plaintiff appeals.

Action by Mary Beadleston, a stockholder in the Las Nueve Minas de Santa. Maria Gold & Silver Mining Company, on behalf of herself and other stockholders, against John B. Alley and Asbury Harpending, for an accounting, and to recover the amount found due. Before bringing her action, plaintiff' requested the United States Trust Company, which had been appointed receiver of the mining company, to bring the action, but it refused, and she-.made it a party defendant.

<p>Appeal from circuit court, Orange county.</p> <p>Action by Charles L. Jessup against John McGarry to recover the sum of $134, with interest and costs,—the price of certain milk delivered to defendant or his agent, for which defendant promised to pay. Plaintiff, in his testimony, (referred to in opinion as at folios 20 and 28,) testified that he and one Woodruff went to defendant’s saloon, and while there a Mr. Yon Winkle stated to defendant that plaintiff and Woodruff had dairies of milk, which he wanted to buy; that he was a stranger to them, and wanted to make it satisfactory ; that defendant said he would do what he could, and plaintiff asked him if he would give his checks, and he said he would; that the milk was shipped to Yon Winkle; that he had received payment for part of the milk delivered in checks of the defendant,—two of which were payable to plaintiff’s order, the others to Mr. Yon Winkle, and indorsed to nlaintiff. On cross-examination, it appeared that a letter had been sent to Von WinKie by plaintiff and Woodruff, asking him to get defendant’s signature to an agreement to become surety for Yon Winkle; also, letters from plaintiff to Yon Winkle, stating that he had not received his checks, were introduced in evidence. The bills were all made out against Von Winkle. From a judgment entered for plaintiff for the amount claimed, and an order overruling a motion for new trial on the minutes, defendant appeals.</p>

Action by Edward E. Kelly against James 0. Brower. The complaint was dismissed without costs, and judgment entered, decreeing specific performance of the contract mentioned in the opinion, without costs. Plaintiff appeals from the dismissal of bis complaint, and defendant appeals from that portion of the judgment denying him costs.

Action by Julian B. Hart and others, individually and as executors of and trustees under the will of Benjamin I. Hart, deceased, against the Metropolitan Elevated Railway Company, the Manhattan Railway Company, its assignee, and José E. Navarro and John Baird, their sureties, for damages occasioned by the erection and maintenance of an elevated railroad in front of plaintiffs’ premises. From an order overruling a demurrer, to the complaint, defendants appeal.

Action by Virginia J. Quinn against Herman T. Winter for damages for the maintenance of an alleged nuisance. Code Civil Proc. H. Y. § 3228, ■subds. 1, 4, provide that plaintiff is entitled to costs, of course, on a final judgment in Ms favor, in an action in which a claim of title to real property arises on the pleadings, or is certified to have come in question on trial, or in .an action for money where the judgment amounts to $50 or more.

Action by Gerson Goldstein, a real-estate broker, against George Walters, for commissions alleged to be due plaintiff for the sale of defendant’s land. Judgment for plaintiff, and defendant appeals.

Actions by David H. Lewis against Semon Bache and others and Henry H. Calm and others. Charles E. Hughes, Esq., referee, filed the following report: “On May 29, 1886, Phraner & Arthur,- a firm composed of Wilson S. Phraner and Frank D. Arthur, made a general assignment of their copartnership property to the plaintiff, for the benefit of creditors.

Supplementary proceedings in actions by James Webb and another against Thomas Osborne, and by William J. Simmonton against the same defendant, in which proceedings Ezekiel Fixman had been appointed receiver of Osborne’s property. ■ From an order vacating a previous order that the tenants of property formerly belonging to Osborne attorn to the receiver he appeals. The appellant is a receiver, in supplementary proceedings, of the above-named Thomas Osborne.

Action by William Oehme against Valentine Cook and another for personal injuries sustained by plaintiff from the alleged negligence of defendants while employed in their iron foundry. A crane in the foundry consists of a vertical beam, about 16 or 18 feet high, that reaches nearly to the ceiling, and revolves on a pivot.

Action by'John Biggs against James M. Chapin, Frederick B. Meres, and others to foreclose a mechanic’s lien filed by plaintiff against property owned by defendant Chapin.

Action to recover money paid to the agent of defendant to obtain a lease from the latter. Judgment for plaintiff, and defendant appeals.

<p>Negotiable Instruments—Bona Fide Holder—Evidence.</p> <p>In an action by a bank on a note, it was in evidence that the manager of the business of one of the indorsers was in possession of the note shortly after its maturity, but the cashier of the bank testified that it had been sent for collection to another person, who delivered it to the bank’s attorney. The attorney testified that the indorser was present when the note was delivered to him for collection, and that, no instructions being given as to its ownership, suit was brought in the name of the indorser, but, upon the attorney’s learning that the note belonged to the bank, he so informed defendant’s attorney and no answer was served; and subsequently this action was brought. Held, that there was no evidence that the note was ever in the hands of the indorser as owner after its maturity, or that the rights of the bank were other than those of a purchaser before maturity.</p>

Case submitted on agreed statement. This was an action by Ohaneey Stevens against Bridget M. Reynolds, to enforce a mechanic’s lien. Upon the trial of the issues the parties affected by the appeal agreed upon the following state of facts: “statement of facts. “First. The defendant Bridget M. Reynolds was, September 1, 1886, and still is, the owner in fee of the premises described in the complaint known as ‘ No. 115| Waverly Place,’ in the city of New York. Second.

The defendant, Albert Harris, was indicted for the crime of watering milk. His demurrer to the indictment having been overruled, he moved to quash. This motion being denied, defendant pleaded not guilty, and went to trial. On return of a verdict of guilty, a motion in arrest of judgment was also denied, and defendant appeals.

Action by Ellis H. Roberts & Co. against George F. Vietor and others. From a judgment sustaining a general assignment for the benefit of creditors, made by defendants Buckley & Co. to defendant Bulger, the defendants George F. Vietor and others appeal.

Action by John Rogers against Harry M. Wendell, as executor of the estate of Nathan D. Wendell, deceased, to recover for disbursements incurred and services performed while in the employment of Nathan D. Wendell, as receiver of the Carthage Company, a corporation. From a judgment in defendant’s favor, plaintiff appeals.

Action by Abijah J. Weston and another against Lorenz Reich for lumber sold and delivered. Code Civil Proc.

Action by Alice Bartholomew, an infant, by Esther Henzie, her guardian ad litem, against the Poughkeepsie & Highland Ferry Company, for injuries caused by defendant’s negligence. Defendant operates a ferry. Plaintiff, a child of 10 years, entered the waiting-room of the ferry with her mother and aunt, for the purpose of taking passage on defendant’s boat.

Action by John J. Quinlan against Emily A. Stratton and Samuel W. Judson to foreclose amortgage. Judgment was rendered for plaintiff, from which an appeal was taken, but defendants, before they had settled their proposed case, moved for a new trial.

Action by Martha A. Guión against David T. Williams and Isaac M. Hunt, executors of Benjamin L. Guión, deceased, to compel defendants to transfer to plaintiff two certificates of stock belonging to her, but held by defendants’ testator in his own name. Plaintiff was the widow of defendants’ testator, and they had lived together for 52 years before his death.

Defendants, the board of electrical control of the city of New York and the commissioner of public works, appeal from an order granting an injunction.

Motion by plaintiff, Joseph Atkinson, to resettle costs of motion for a new trial, made by defendant, Titus B. Truesdell. From an order granting plaintiff’s motion, defendant appeals. For former litigation between same parties, see 6 H. Y. Supp. 509.

On motion for reargument, and for leave to go to court of appeals. For former report see 5 if. Y. Supp. 447. Action by Jennie E. Kent against Richard 0. Sibley and others to'recover on an undertaking to stay proceedings on appeal. On trial plaintiff demurred to defendants’ second defense, and the demurrer was sustained. The general term of the city court affirmed the judgment, and on appeal to this court, the judgment was again affirmed.

<p>Contempt—What Constitutes.</p> <p>An order was entered restraining certain officers and members, including appellant, from disposing of the property of their corporation, and was served on the president in the presence of appellant, who had notice of the order and its contents. Afterwards, appellant delivered a deed of conveyance of the property described in the order. Held, that appellant was guilty of contempt, and was properly lined $250 and committed to jail for six months.</p>

Action by Jarvis S. Baker against William ,H. Secor for false imprisonment in causing plaintiff’s arrest on a body execution issued on a judgment obtained. in an action by Charles G. S. Baker, the son of plaintiff, against plaintiff, in which action the defendant was the attorney for the son. For the facts, see 4 S. Y. Supp. 303. There was a verdict of $4,500 for plaintiff, and from a judgment thereon, and an order denying his motion for a new trial, defendant appeals.

Injunction by Henry Bacon against Harrison W. Manny and others, president and trustees of the village of Goshen. Defendants appeal from an order continuing until final judgment a preliminary injunction restraining defendants from incurring any liability or issuing any bonds on the credit of the village in carrying out a certain plan for providing sewers for said village.

Action for personal injuries by Wilheimine Sterger against J. Wyckoff Van Siclen. While visiting a tenant of defendant, as plaintiff was descending a stairway, one of the stairs broke through under her feet, and she sustained serious injuries. It appeared that a month before the accident occurred the defendant remitted a portion of the rent as payment to the tenant for repairing the defect in the stairway which caused the injury.

<p>1. Policemen—Removal—New York & Brooklyn Bridge.</p> <p>Under Laws N. Y. 1887, c. 192, providing that policemen of the New York & Brooklyn Bridge are removable only after written charges preferred, and a public examination thereon, in such manner as the rules and regulations of the trustees-may prescribe, but no removal can be had after such hearing, unless by a majority-vote of all of said trustees, a rule that the hearing shall be had before the president of the board, who, in case he recommends the dismissal of the person charged with the offense, shall report the evidence to the board, is valid.</p> <p>2. Same—Sufficiency of Evidence.</p> <p>Relator was charged with absence without leave, which was admitted, and with falsely reporting sick. The report of the police physician, that he had visited relator’s residence, and found him out, and could not learn of his sickness, was read without objection; and no denial or explanation of the facts was made. Held, that, relator could not complain that the facts were not proven by competent evidence.</p> <p>3. Office and Officer—Title—Collateral Attack.</p> <p>The title of a trustee defacto cannot be attacked collaterally.</p>

<p>Judgment—Cancellation—Motion to Set Aside Order.</p> <p>An order canceling a judgment, without notice to the owner, is irregular; but where the parties in interest are afterwards heard on a motion to vacate the order, and it appears that if vacated it would have to be again entered, and it does not appear that any one has been prejudiced by it, the order should stand.</p>

, Appeal from special term, Kings county. Action by Theodore P. Jackson and others, as executors and trustees under the will of Loftus Wood, deceased, against Peter Kinsey, ,as sole surviving executor under the will of Abraham Stockholm, deceased, and others, to remove cloud on title. Defendants appeal from a judgment for plaintiffs.

Ejectment by Clarence R. Conger against Wolsey T. Weyant and Sallie V. Weyant, his wife, and against John Treadway. From an order entered on a verdict in favor of defendants, and an order denying his motion for a new trial on the minutes, plaintiff appeals. For former reports, see 3 N. Y. Supp. 152, 153.

Action by Peter M. Wilson against Annie Finnerd Darragh and others to foreclose a mortgage. On the trial the following facts were found: On June 22, 1881, the defendants Annie Finnerd Darragh (then Annie Finnerd) and Edward A. Darragh executed and delivered their joint and several bond, wherein they bound themselves to pay Remington Vernam $3,500.

Action by Cornelius D. Guyon and Walter S. Guyon for the recovery of a horse, and damages for detention, commenced before a justice of the peace. The return shows no requisition in the justice’s court, or return thereof. The summons was personally served.

Action by Charles A. T. Rodrian, as administrator of Catherine Rodrian, •deceased, against the New York, New Haven & Hartford Railroad Company, for damages for the negligent killing of plaintiff’s intestate. There was a verdict for plaintiff for ¡$5,000, and judgment was entered thereon. Defendant appeals.

Application by William Kemmler for a writ of habeas corpus. The application was denied by an order of the county judge, (ante, 145,) and relator appeals.

Action for an accounting by Joseph J. Garvey against the New York Life Insurance & Trust Company and others. Pending the suit, plaintiff died, and his administrator, John J. Garvey, was substituted. Prom an interlocutory judgment directing an accounting, John J. Garvey appeals.

Action by Joseph Swan against John F. Jackson to recover damages for injuries sustained by reason of defendant’s negligence in making an ice-chest, by reason of a defect in which plaintiff was injured. There was judgment ■dismissing the complaint. Plaintiff appeals.

Action by James A. Bidden against James H. Thrall, as administrator, etc., of Charles H. Edwards, deceased, and another, to determine the validity of an alleged gift causa mortis made to plaintiff by defendants’ decedent. From a judgment in plaintiff’s favor, defendants appeal.

This judgment was entered in Oswego county, April 15,1889, setting aside ■ns fraudulent and void a general assignment made by Brickell to Wilcox. Held: as matter of law, that, by the transfer from Gardner to Brickell, the firm property became the individual property of Brickell, and that he had no right, as against his individual creditors, to prefer a firm creditor, and upon that ground declared the assignment void as against plaintiff, an individual creditor.

In the matter of the estate of James Wiley, deceased, his ward, Emily L. .Middleton, obtained an order from the surrogate’s court directing Laura E. Wiley, the administratrix of decedent’s estate, to render an account of her intestate’s guardianship; from which order the administratrix appeals.

Action by Charles H. Pendergast, as receiver of the Produce Bank of the City of New York, against Ernest Greenfield, as trustee and individually, impleaded with the Continental Hational Bank of New York. Defendant Greenfield appeals from a judgment for plaintiff, and from orders (1) denying his motion for a jury trial, (2) granting plaintiff an extra allowance for costs, and (3) denying a motion for new trial.

Appeals from special term, New York county. Actions for libel by Gerrit S. Scofield against W. Jennings Demorest, and! by Frank M. Scofield against the same defendant. Defendant answered in both actions, pleading truth in justification, and moved that plaintiffs be compelled to reply. Code Civil Froc.

Action by Eicot J. Dovale against Bernard L. Ackerman, Sr., and Bernard L. Ackerman, Jr., for money loaned. A judgment for plaintiff against the first-named defendant was entered on his alleged default in answering plaintiff’s amended complaint. He moved to vacate the judgment. His motion was denied, but the default was opened, and defendant was allowed to answer on payment of $10 costs; the judgment being allowed to stand as security. Defendant appeals.

Action by the New York Life Insurance Company against the heirs of Cornelius Poillon, to recover a deficiency on a judgment of foreclosure of a bond and mortgage.

Petition by the mayor, aldermen, and commonalty of the city of New York to compel an accounting by Alfred L. Simonson and another, executors, etc., of Samuel Wood, deceased. The surrogate made an order denying the prayer of the petition, and the petitioners appeal. Code Civil Proc. N. Y. §§ 2726, 2727, provides that “a person interested in the estate or fund” may present a petition praying that an executor or administrator be compelled to account.

<p>On rehearing. For former report, see 5 M. Y. Supp. 627.</p>

<p>Appeal from court of general sessions, Yew York county.</p>

<p>Appeal from court of general sessions, New York county.</p>

<p>Divorce—Counsel Fees—Second Action.</p> <p>Counsel fees will not be allowed a plaintiff who, five years after she has procured a decree for a divorce in another state, brings another action for divorce against, the same man, alleging that the judgment in the former action was void.</p>

The Saratoga Gas & Electric Light Company brought action against Rowland N. Hazard for conversion of certain bonds, and caused defendant’s arrest. From an order denying motion to vacate and set aside the order of arrest, defendant appeals.

<p>Insurance—Construction oe Policy—Conditions.</p> <p>An insurance policy on an unfinished house contained the words, “ to be occupied as a residence when completed, ” and gave permission to mechanics to work in and about the house for 90 days. Meld that, while insured was to have the right to complete the building, this was to be done within 90 days, and work done in the construction of the house after the expiration of that time was a violation of a clause in the policy prohibiting carpenters or other mechanics from working on the house without written permission, even though done by the insured himself.</p>

Action by Hannah 0. Brink against Guaranty Mutual Accident Association to recover on a certificate of membership issued by defendant to plaintiff’s husband, in which plaintiff was named as beneficiary.

Action by Thomas Kelson against Sarah E. Loder and others to restrain defendant Loder from the further prosecution of an action of foreclosure, and to compel an assignment to him of her bond and mortgage. Defendant Loder held a first mortgage on the land, and she commenced foreclosure proceedings September 25,1880, making Ada E. Briggs, the then owner, one of the defendants.

<p>Appeal from special term, Richmond county.</p> <p>Action by Louis Cordes against Rosanna Kenney and Mary Ellen Kenney for specific performance of a contract to convey land. Judgment for plaintiff, and defendants appeal.</p>

Action by Theodore S. Jenkins against William B. Dean for an accounting to determine the amount of profits realized by defendant on two contracts with the city of New York for the construction of sewers on Eighth and Eleventh avenues, and for one-third of the net profits. Defendant employed one W. L. Holmes to superintend the construction of these sewers.

In the matter of the inheritance tax of certain legacies under the will of' Erederich Herr, deceased. The surrogate held that all the legacies were taxable, (see 5 M. Y. Supp. 48,) and the Wartburg Orphan Farm School of the Evangelical Lutheran Church appeals.

Petition of the Union Elevated Railroad Company of Brooklyn, to acquire title to easements in a street in front of property owned by William C. Jughardt, Frederick Koch, and Christiana Koch. Commissioners of appraisal were appointed, and their report was confirmed. From the order of confirmation the petitioner appeals, and from an order denying their motion for costs the property owners appeal.

Action by John Ganley against the Brooklyn City Railroad Company, for personal injuries sustained by plaintiff while a passenger on defendant’s streetcar. Verdict and judgment for plaintiff, and defendant appeals.

<p>1. Wills—Capacity to Make.</p> <p>The evidence showed that testator, though so sick that he died the next day, was able to direct the preparation and comply with the usual forms in the execution of his will. The will was not an unnatural one. There was no evidence at all that testator was not of disposing mind, except the opinion of physicians, who were not present at the time the will was executed, based on their observations before that time. Held, that the will was properly admitted to probate.1</p> <p>2. Witness—Competency—Physicians.</p> <p>Code Civil Proc. N. Y. § 834, which declares that a physician shall not be allowed to disclose information which he has acquired while attending a patient in a professional capacity, applies where the physician is called as a witness in proceedings for the probate of a will.2</p>

<p>Appeal from circuit court, New York county.</p> <p>Replevin by Samuel F. Myers and Marcus A. Myers against Elbert A. Taber. From a judgment entered on verdict for defendant, and from an order denying a new trial, plaintiffs appeal.</p>

Action by Theodore O. Schell against Jacob Cohen to recover money paid on. a contract to purchase land, together with the expense of examining title, on account of a defect in defendant’s title. Judgment was for plaintiff, and defendant appeals.

Petition by the New York Institution for the Instruction of the Deaf and Dumb to vacate or reduce assessments to the extent that the same exceed the limitations fixed by statute. The petition was denied, and petitioner appeals.

Action by the people of the state of New York against Alfred L. Simonson and Edward T. Schenck, individually and as executors of and trustees under the last will and testament of Samuel Wood, deceased, Lewis L. Fosdick, and VanWyck Hewlett, as executors of Abraham Hewlett, deceased, to enforce a trust under the will of said Samuel Wood, deceased. There was judgment dismissing the complaint. The people appeal.

Appeals from special term, New York county. Appeals from orders denying motions for revivals of the proceedings under the petitions of Jesse A. Marshall, deceased, and Francis Ferris, deceased, to vacate street assessments.

<p>3, Railroad Companies—Injuries to Baggage—Evidence.</p> <p>Plaintiff’s baggage was delivered to defendant in good and dry condition on September 2d, at Larrimore, and was by it brought through to St. Paul, whence by another road it was brought to New York, where, upon its arrival, on September 6th, it was found to be damaged by water. There was evidence that it rained very hard and nearly or quite all night of the day on which defendant received the baggage, and that it reached St. Paul on the morning of September 8d. There was evidence that it was not exposed to the action of water after it reached St. Paul. The mould on the baggage tended to show that the injury was not of a date later than the arrival in St. Paul. Held, that the evidence justified the finding that the baggage was injured while in defendant’s possession, between Larrimore and St. Paul.</p> <p>3. Same—Change of Route.</p> <p>Where the agent of a railroad company checks the baggage of a passenger over a different route from the one agreed on, and it is injured while on such route, the company is liable as an insurer.</p>

Action to foreclose a mortgage by Herman Voight against George Schenk and others. After judgment of foreclosure and sale, an order was made entering the name of Thomas A. Murray, receiver, as a party defendant in the various papers, nuno pro tuna, and from this order Murray appeals.

Action by Annie F. Darragh against Reuben Ross. The witness Vernam, referred to in the opinion, was called for defendant, and testified, on cross-examination by plaintiff, that he acted for the latter, in certain transactions, with her authority. Plaintiff afterwards showed by a witness for herself that Vernam had no authority from her. Verdict and judgment for plaintiff, defendant’s motion for new trial denied, and he appeals.

Application by Roswell P. Flower to compel the cancellation of certain water-rates and water-rents levied and charged against his property in Long Island City. Frederick W. Bleckwenn, as treasurer, etc., of Long Island City, appeals from an order entered in favor of petitioner.

<p>Appeal from special term, Rockland county.</p> <p>Action by Albert A. Bliven against Smith Lydecker and others. The complaint was dismissed, and plaintiff appeals.</p>

Action by the Diamond Brick Company against the Mew York Central & Hudson River Railroad Company, for the alleged negligent killing of plaintiff’s horse. Judgment for plaintiff, and defendant appeals.

Action by Thomas A. Fitzsimmon against James McConnell and another for personal injuries and the loss of his shell row-boat, caused by a collision with defendants’ steam-tug. Plaintiff had a verdict and judgment thereon; and, from an order denying defendants’ motion for a new trial, they appeal.

<p>Appeal from surrogate’s court, Westchester county.</p> <p>Petition by Adelia Cocks against Daniel E. Haviland and others. From the decree rendered petitioner appeals. Respondent’s motion to dismiss the appeal was denied at a special term of the supreme court, and is renewed here. For former report see 1 N. Y. Supp. 904.</p>

Petition by Adelia Cocks against Daniel E. Haviland and others, executors of the will of John Cocks, deceased, for an accounting, and for the payment to petitioner of an arrears of annuity. The surrogate rendered a decree finding that the amount of the annuity was reduced to g certain sum by a release executed by petitioner, and she appeals. Pending the appeal, David Cocks, one of the executors, died, and his widow and children were made parties respondent.

At chambers. On motion to continue injunction. Action by Michael Gernsheim, Eugene A. Loeb, and Albert Loeb, suing on behalf of themselves and all others similarly situated who may desire to come in and contribute to the expenses of the action, against Frederic P. Olcott, the Houston & Texas Central Eailway Company, Collins P. Huntington, and others, to reduce an assessment levied on the stockholders, and to enjoin defendants from disposing of any stock of the new or…

<p>Appeal from surrogate’s court, Orange county.</p> <p>Petition by Oscar Druland and George H. Mapes, executors of the last will of George Mapes, deceased, for distribution of property in their hands and for their discharge. From the decree rendered various interested parties appeal.</p>

Valerie P. Taylor brought ejectment against Francis A. Taylor.

In an action by Jane Rogers against Henry Edmonds before a justice of the peace, to recover the amount of a debt, the summons was personally served on defendant, and was returnable on March 11, 1889. A paper purporting to be a transcript of a judgment for plaintiff, rendered in the action on March 11th, was subsequently filed with the clerk of the county court.

This is an action to recover for damages occasioned to plaintiff’s premises by the discharge thereon of water and other contents of a sewer constructed by defendant in Hart street, in the year 1871. This street runs east and west, and the sewer discharges into a sewer in Main street, which street runs north and south. The plaintiff claims that for a part of its length this Hart-Street sewer was without descent.

The first action was brought to restrain defendant from laying tracks in certain portions of an alleged'Van Rensselaer street, in Cohoes. The second was brought to restrain the construction of a freight-house in said alleged street. The two actions were tried before the court without a jury, and a decision in each action was rendered for the defendant. The plaintiff appeals.

<p>Case submitted on agreed statement.</p>

Action by Edward Tracy against the Troy & Lansingburgh Railroad Company, to restrain defendant from erecting poles, to form part of an electric motor system, on a street in the village of Lansingburgh, and opposite plaintiff’s property. A temporary injunction was granted, which, on defendant’s application, was vacated, and plaintiff appeals.

Action by Daniel W. Tallmadge against the Press Publishing Company for libel. After the filing of the answer, an order was made, on the motion of plaintiff, requiring defendant to file “a bill of particulars of the several matters upon which it proposes to offer proof in justification and in mitigation of damages,” from which order defendant appeals.

Action by John M. Canda and John P. Kane against Thomas H. Bobbins, for goods and merchandise sold and delivered. Defendant appeals from an order granting plaintiffs’ motion for an order of reference, under Code Civil Proc. § 1013, on the ground that the trial of the issues herein involved the examination of a long account.

<p>Attachment—Grounds—Non-Residence.</p> <p>An attachment on the ground of defendant’s non-residence will not be set aside, where it appears that he lives with his wife in New Jersey, which he stated was his place of residence; that he is registered and votes in that state; that he is assessed for personalty and has his business letters sent there; and that he is neither registered as a voter nor assessed for personalty in this state.</p>

<p>Motion to vacate an order for an examination in supplementary proceedings.</p>

<p>Motion by defendant to vacate order.</p>

On proceedings for contempt. Action by Gerardus Wynkoop against Henry Myers. On July 9, 1885, an order was made in supplementary proceedings requiring the defendant (the judgment debtor) to appear before a referee, and submit to an examination concerning his property.

Action by Lizzie H. Clark against Moses J. Lichtenberg and others. An. order was entered allowing plaintiff to amend her complaint on terms, from which defendants appeal.

Action by Thomas Murray against the Brooklyn City Railroad Company for personal injuries.' There was a verdict in plaintiff’s favor for $18,000, and from the judgment and an order denying a new trial, defendant appeals.

<p>Appeal from district court.</p> <p>Action by Maria L. Daly against John S. Wise, to recover rent. On trial in the district court, judgment was rendered for defendant, from which plaintiff appeals.</p>

Action by Moses Price against Hugh J. Grant, sheriff of the city and county of New York, to recover possession of certain personal property. Defendant interposed a demurrer that the court had no jurisdiction of the actian, for that it was against a county officer. From the judgment of the court sustaining the demurrer and dismissing the complaint plaintiff appeals. Code Civil Proc.

Action for conversion of personalty by Jonas H. Lane and another against Charles Bosenburg and another. Judgment on a verdict directed by the court for defendants, and plaintiffs appeal.

Action by Ann Slavin against the mayor, aldermen, and commonalty of the city of New York, for personal injuries. Judgment on verdict for defendant, piaintiif’s motion for new trial denied, and she appeals.

Action to foreclose a mortgage by Aaron Y. S. Cochrane against Chancellor Haw ver, executor of James E. McClure, deceased, Clara V. McClure, and ■others. The mortgage was executed by decedent during his life-time to one .Lucius Moore to secure him from liability as indorser on notes thereafter made. He thereafter indorsed a note for decedent, and this note and the mortgage were assigned to plaintiff.

Sarali E. Gillies and others moved to open a decree admitting the will of John W. Gillies, deceased, to probate. The decree was entered on default of applicants, who were contestants. The motion was denied, and the applicants appeal.

Action by Peter Lawyer against Peter G-. Fritcher, for the alleged abduction and seduction of plaintiff’s minor daughter. Verdict and judgment for plaintiff, defendant’s motion for new trial denied, and he appeals.

Application by Boswell P. Flower, for mandamus to compel Frederick W. Bleckwenn, as treasurer and receiver of taxes of Long Island City, to accept the taxes of 1880, without interest. Defendant appeals from a judgment allowing the writ.

<p>Appeai—Dismissal—Failure to Pile Bond.</p> <p>Where appellant is not moving his case, and the 60 days within which, under Code Civil Proc. N. Y. § 1341, he may perfect his appeal have not expired, a motion to dismiss the appeal, on the ground that no appeal-bond has been filed, will be denied.</p>

Action by Mary A. Benedict against Ann A. B. Cobb. Defendant died pending the action, and Edward B. Cobb became the executor of her will, ami also the administrator de bonis non of the estate of Theodore H. Benedict, of whose will Ann A. B. Cobb was the executrix. Plaintiff now moves to revive the action against Edward B. Cobb, and also against the devisees of Ann A. B. Cobb.

At chambers. Action by Alice Maud Bliss against Thomas E. Murray and another, before final order, to enjoin summary proceedings. A preliminary injunction was obtained, which defendants now move to dissolve.

Action by John H. Cheever against Avery T. Brown, assignee, and others. The cause was tried before a referee, who settled the case on appeal. Plaintiff now moves to resettle the case.

<p>On demurrer to the complaint.</p>

Defendant, Tompkins, was arrested in an action brought by plaintiff, Kennerly. Code Civil Proc. -ST. Y. § 582, provides: “The defendant may, instead of giving bail, deposit with the sheriff the sum specified in the order.

At chambers. In an action for conversion defendant was arrested, and admitted to bail, but the order for arrest remained unchanged. After a continuance at defendant’s request, the case was referred, and hearing immediately commenced before the referee, but it was not finally submitted until two years later.

Action by Jacob Argersinger against G-ustave Levor for personal injuries sustained from being bitten by defendant’s dog. The action was originally brought in justice’s court, where judgment was rendered in plaintiff’s favor. Defendant appealed to the county court; and from an order permitting plaintiff to amend his complaint, and a judgment affirming the justice’s judgment, defendant appeals.

Action by Frank Walton against Parke Godwin, as a director of the American Opera Company, Limited, a domestic corporation incorporated under Laws N. Y. 1875, c. 611. Plaintiff claimed under an assignment to him by Henry Bates of a claim against the corporation for alleged breach of a contract by discharging said Bates from its employ as an opera singer on December 11, 1886.

•Action by Byron J. Scofield, receiver of William Spaulding, against William Spaulding and Philo B. Spaulding, to set aside a conveyance of a house and lot in Oneonta; also a vacant lot; which conveyance was executed on the 3d day of January, 1885, and recorded on the-day of January, 1885, and recited a consideration of $3,200.

Action by the Walden National Bank against Michael G-. Snyder and Caleb-Birch, sureties on the bond of William G-. Rutherford, cashier of plaintiff bank.

<p>Appeal from circuit court, Montgomery county.</p> <p>Action by Harriet McDonald against Maria McDonald on a promissory note. There was a judgment for plaintiff, and defendant appeals.</p>

Action by Margaret Buppel against Mary B. Schlegel and others for the construction of the will of Adam Schlegel, deceased, under Code CivilProc. Held: in Rainey v. Laing, 58 Barb. 453, tó be a pious use. The-sustaining of a religious newspaper is an equally pious use; and the starting-of a newspaper by a church for the interest of the Catholic people is not necessarily any other than a pious act.

<p>Appeal from circuit court, New York county.</p> <p>Action by Robert J. Howe against Joseph J. Morehouse and another. Judgment was entered for plaintiff, and defendants appeal.</p>

Action to remove cloud on title, by the Mutual Life Insurance Company of New York against Lina T. Corey and others. On November 15, 1873, William G. Corey, then being the owner of and living upon a farm in Tomp-. kins county, executed a deed thereof to his wife and four minor children, (being the three defendants herein and Hattie L. Corey,)reserving to himself a life-estate therein.

<p>At chambers. On motion for a temporary injunction.</p>

<p>For hearing on appeal, see 6 N. Y. Supp. 750.</p>

<p>On motion for a reargumént. For opinion on appeal, see, 6 N. Y. Supp. 444.</p>

<p>Appeal from Otsego county court.</p>

<p>For former report, see 3 N. Y. Supp. 959.</p>

<p>Appeal from j ury term.</p>

Action by Michael E. Maloy against the Associated Lace Makers’ Company, Herman Duden, Myron Winslow, and Julia E., his wife, to set aside a deed. Code Civil Proc. N. Y. §§ 3252, 3253, provide that, in certain cases involving realty, or In difficult and extraordinary cases, the court may allow the plaintiff in addition to the prescribed costs a certain percentage on the amount involved in the action.

<p>Motion for leave to appeal- to the court of appeals. For former opinion, and statement of facts, see 5 N. Y. Supp. 659.</p>

<p>Motion to confirm report of commissioners of estimate. For former report see 6 N. Y. Supp. 750.</p>