Volume 70 — New York Appellate Division Reports

Appeal by the defendant, the Metropolitan Street Railway Corhpany, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of December, 1901, denying the defendant’s motion for a bill of particulars.

Appeal by the defendant, William F. Hogan, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day of January, 1902, vacating an order theretofore entered in the action requiring the plaintiff to give security for costs.

• Appeal by the plaintiff, Fannie Markey, as administratrix, etc., of Joseph P. Markey, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of New York on the 19th day of November, 1901, upon the decision of the court, rendered after a trial at the New York. Special Term, sustaining the defendant’s demurrer to the complaint.

Appeal by the Union Trust Company of New York, as trustee. of the estate of George P. Lawrence, deceased, from that portion of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 6th day of September, 1901, refusing to allow commissions to said company as trustee.

■ Appeal by the plaintiff, Eliza Pringle, and by the defendants Eliza J. Bryan and others, from a judgment of the Supreme Court in favor of the defendant,' Fannie Louise Burroughs, née Temple, individually, and as executrix, etc., of Joseph Hamilton Bryan, deceased, entered in the office of the clerk of the county of New York on the 17th day of December, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s officé…

Appeal by the plaintiff, E. Martin Black, from an interlocutory judgment of the Supreme Court in favor of the defendants, William K. Vanderbilt and another, as trustees for E. Martin Black, entered… Held: as aforesaid, for said plaintiff, if still in their possession or under their control, and from interfering with or disposing of any and all sums of money or profits due said plaintiff under the terms of said agreement. “III.

<p>Negligence — a pedestrian injured by a street car in full view, which, without slowing up, strikes him just as he has crossed the tracks—a nonsuit is improper.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, who, while crossing from the east to the west side of Third avenue, in the city of New York, at a point seventy feet south of Seventy-second street, about nine o’clock on a summer evening, was struck by one of the defendant’s south-bound electric street cars and killed, the evidence tended to show that when the intestate started from the sidewalk, which was thirty-three feet from the south-bound track, the car was at the south crosswalk óf Seventy-second street; that the intestate proceeded at an ordinary walk and that when he had reached the easterly rail of the south-hound track the car was fifteen or twenty feet away; that when he reached the westerly rail of the south-bound track the car was only five feet away, and that, before he could step off the westerly rail, he was struck by the car.</p> <p>The evidence also tended to show that the car was traveling about twenty miles an.hour and that the motorman made no effort to stop it until after the collision, and did not succeed in doing so until it had traveled about ninety feet.</p> <p>The plaintiff offered to show that the motorman did not sound his gong, or give any other warning to the intestate; but this evidence was excluded by the court. Both the car and the avenue were brilliantly lighted, and if either the motorman or the intestate had looked he could have ascertained the position of the other.</p> <p>Held, that it was error for the court to dismiss the complaint;</p> <p>That the jury might infer that the motorman’s failure to slacken the speed of the car or to give any warning of its approach was due to an error of judgment, in assuming that the intestate would be able to cross in safety, which error of judgment would not necessarily constitute negligence, or else that his failure to slacken the speed of the car or to give any warning of its approach was a failure to observe that degree of care which he should have observed with respect to a person in the position in which the intestate then was;</p> <p>That, by the same process of reasoning, the jury might have found that the intestate was guilty of a mere error of judgment, and not of contributory negligence, in attempting to cross the street in front of the car without accelerating his steps.</p> <p>Upon an appeal from a judgment, entered upon a nonsuit, the plaintiff is • entitled to the most favorable inference which can be drawn from the evidence admitted or which should have been admitted.</p> <p>Van Brunt, P. J., and McLaughlin, J., dissented.</p>

<p>Action to have real estate purchased by a committee adjudged to home been purchased with the money of the lunatic—proof required to sustain it — an account by the committee, how far evidence—short form of decision, what it should contain. -</p> <p>In an action, brought by the heirs at law of a lunatic against the heirs at law of the committee of the lunatic, to establish a resulting trust in property purchased by the committee in her individual name, with money alleged to have belonged to the lunatic, the plaintiffs must prove, by a fair preponderance of evidence, that all, and not merely a portion, of the consideration paid for the property belonged to the lunatic.</p> <p>In such an action an account presented by the committee to the Supreme Court and approved by it, in a proceeding instituted, without notice to the plaintiffs, is not binding upon them, but is competent evidence upon the question as to the identity of the particular money used in the purchase of the property.</p> <p>A decision, purporting to be in the short form, permitted by section 1022 of the Code of Civil Procedure, should not contain a long and detailed statement of the facts proved upon the trial. • • ■</p>

<p> Beal estate broker—proof insufficient to establish his right to commissions. </p> <p>an action brought by a real estate broker to recover commissions upon the sale of a parcel of real • estat e owned by the defendant, it appeared that the plaintiff suggested to one Smith the advisability of purchasing the piece of property in question, and upon being informed by Smith that he would be interested in the property if it was in the market, went to the. defendant’s house and was informed that one Pottefton was the defendant’s agent; that the plaintiff called upon Potterton, who said that he represented the defendant but that the property could not be sold until the defendant returned from Europe; that subsequently the plaintiff and Smith called upon Potterton, who informed the plaintiff that, if he would make a written offer for the property, it' would be delivered to the defendant upon his return from Europe; that Smith then made a written offer of §325,000 for the property and delivered it to Potterton; that at a subsequent interview Potterton told the plaintiff that the defendant wanted $375,000 for the property; that the plaintiff made an appointment to see the defendant, and at the hour appointed the plaintiff and Smith called upon the defendant and were introduced to him by Potterton, who then left the room; that the defendant then offered to sell the property for §375,000, which proposition Smith accepted.</p> <p>The contract between Smith and the defendant contained a provision that “ George A. Potterton is the only broker who brought about this transaction, and, so far as the vendee knows, no other broker is concerned herein.” It did not appear that Potterton employed or had authority to employ the plaintiff to act oh behalf of the defendant, or that the defendant had any knowledge that the plaintiff was a broker or claimed any commissions on the sale or that he had assumed to represent the defendant.</p> <p>Meld, that there was no evidence of any employment of the plaintiff by the defendant;</p> <p>That the defendant was not chargeable with the knowledge possessed by Potter-ton of the plaintiff’s relation to the transaction, which he did not communicate to the defendant.</p>

<p>Conveyance fraudulent as to creditor's —? the proceeds of the property, sold under an execution against the vendee, cannot be followed by a creditor of the vendor.</p> <p>Where property transferred- by a debtor, in fraud, of his creditors, is levied upon and sold, under a judgment obtained against-the vendee by a creditor of the latter, and the proceeds are paid over to such creditor before any action is , taken to set asidé the fraudulent transfer, creditors Qf the fraudulent vendor-are not entitled to follow the proceeds of the property fraudulently transferred into the hands of the execution creditor. :</p>

Appeal by the defendant, John D. Gould, from an order of the Supreme Court, made at the New York Special Term and entered in the officé of the clerk of the county of New York on the 9th day of January, 1'902, as amended by an order made at the New York Spgcial Term bearing date the 14th day of January, 1902, and entered in the office of the clerk of the county of New York, denying a motion made by said John D. Gould to vacate an order for his examination as a party before…

<p>Appeal by the defendant, the Union Casualty and Surety Com-' pany, from an interlocutory judgment of the Supreme Court in' favor of the plaintiff, entered in the office of the clerk of the county' of New York on the 30th day of November, 1901, upon the decis-" ion of the court, rendered after a trial at the New York Special' Term, overruling a demurrer to the complaint.</p>

<p>Appeal by the plaintiff, Edward S. Fowler, substituted trustee under the last will and testament of Jane Ferguson, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of March, 1901, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Katie Y. Hoey, as administratrix, etc., of James J. Hoey, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of October, 1901, upon the decision of the court, rendered after a trial at the New York Trial Term, dismissing the complaint upon the merits and setting aside the general verdict and the special findings of fact brought in by the jury, except…

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Reinsurance — when the reinsurer is bound by the adjustment of loss made by the insurer.</p> <p>A fire insurance company reinsured a portion of a risk under a contract which provided that it should he “subject to the same risks, valuations, endorsements (excepting transfers of location) and conditions as the original insurance, and loss, if any, to be settled and paid pro rata with the reinsured and at the same time and place, and upon the same conditions.”</p> <p>The property insured was subsequently destroyed by Are.</p> <p>Held, that the reinsurer, in the absence of fraud or of bad faith on the part of the insurer, was bound by the adjustment of the loss made by the insurer, especially where it appeared that, under such a policy of reinsurance, it was customary for the reinsurer to pay the reinsured its proportion of the adjustment expenses.</p>

Appeal by the defendant, Frederic T. James, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of May, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 7th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Husband and wife—what recognition by the husband of an obligation to pay for • support furnished by his wife will be enforced.</p> <p>A woman, who, at the time of her marriage, was engaged in the business of keeping a boarding house, continued after her marriage to conduct that busi. ness on her separate account, her husband, who lived with her, contributing nothing towards the support of the household and using all money earned by him in his business. After many years of married life, the husband, desiring to protect the xvife, executed the following statement:</p> <p>“I ouw Mrs. Hamilton for Home Heap for 17 years, at §1,500 Per year</p> <p>' ‘ The amount of time I have Bean in Bussines, which amounts to.. §35,500.00”</p> <p>and delivered it to Ms attorney with instructions to give the same to his wife or keep it for her. The attorney delivered the paper to the wife after her bus-hand’s death.</p> <p>Held, that the wife was entitled to recover from her husband’s estate the amount specified in the acknowledgment of indebtedness, no objection having been made' that such amount did not represent the value of the board and lodging so furnished;</p> <p>That where a wife assumes the burden of supporting her husband and her family out of her separate estate, any proof tending to show that the husband recognized an obligation upon his part to reimburse the wife for her- outlay will be sufficient to create a valid obligation against his estate.</p>

Appeal by the plaintiff, Bradley & Currier Co., from the following pOTtions of an order of the Supreme Court, made at the New York Special Term, bearing date the 7th day of January, 1902, and entered in the office of the clerk of the county of New York: “ Ordered and determined that all and singular the allegations in the petition are true and that. the assignment of rents annexed to the petition and moving papers was and is valid and in full force and effect, and that the…

<p>Agreement to purchase the vendor's right in a New York city pier, for which loth the vendor and vendee had made applications to the dock department — it is without consideration — an agreement not to lid at a city auction sale is against public policy — a pleading must cover the cause of action, proved.</p> <p>A written agreement, under seal, made between two parties who had filed applications with the dock department of the city of New York for a lease of the same pier, by the terms of which one of such parties assumed to sell to the other all his right, title and interest in and to such1 pier and all his claim upon the dock department of the city of New York in respect thereto and any lease thereof, in consideration of a certain sum of money, to be paid annually thereafter for a period of ten years, is not enforcible against the vendee, as the filing of the application with the department of docks did not vest in either of the parties any property right or interest in the pier which would furnish a consideration for the vendee’s promise.</p> <p>Where it appears that the dock department intended to dispose of the lease at public auction to the highest bidder, an oral agreement made between two applicants, by which one of them agreed that, if the other party would abandon his endeavor to secure the pier, the former party would pay to him any bonus which he might be obliged to pay in order to obtain another pier, is void as against public policy.</p> <p>Bemble, that in an action brought to recover upon the written agreement mentioned in the first paragraph, the plaintiffs would not be entitled to recover upon the oral agreement mentioned in the second paragraph.</p>

Appeal by the defendant, District No. 1, Independent Order of Benai Berith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1901, upon the verdict of a jury-rendered by direction of the court, and also from an order entered in said clerk’s office on the 8th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Marketable title — the projection <?/ a stoop beyond the building line in a street.</p> <p>The- fact that the stoop of a house projects beyond the building line into the . street, does not constitute a defect in the title to the premises upon which the house stands, where it appears that the stoop has occupied such position for upwards of thirty years without objection on the part of the municipality or of adjoining property owners or any other person.</p> <p>In such a case, the contingency that the removal of the stoop will ever be compelled by the municipality or by any person having authority in the premises, is so remote as not to be within reasonable contemplation.</p> <p>Van Brunt, P. J., dissented.</p>

<p>Submission of .a controversy upon an agreed statement of facts, pursuant to section 1279 of the Oode of Civil Procedure.</p>

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Appeal by the plaintiff, Edward R. Lazarus, from a judgment of the Supreme Court in favor of the defendants, entered in the office of .the clerk of the county of New York on the 13th day of August, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendants, Charles Furthmann and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th. day of April, 1901, upon the verdict of a jury rendered by direct tion of the court.

Appeal by the defendant, Henry G. Cooper, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 24th day of June, 1901, upon the decision of the court rendered after a trial before the court without a jury at the Hew York Trial Term, a jury having been waived.

Appeal by the defendant, Henry Campbell, as administrator, etc., of Thomas S. Clarke, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 26th day of January, 1901, upon the report of a referee appointed pursuant to the provisions of the Code of Civil Procedure to determine respondent’s claim against the estate for services and disbursements, the justice of which was doubted by the…

Cross-appeals by the plaintiff, Woldemar Kittel,. and by the defendant, Charlotte Domeyer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21th day of April, 1901, upon the decision of the court rendered after a trial at the New York Special Term.

<p>A plea of-performance of a contract, not sustained by, proof of an excuse for nonperformance— the facts constituting the excuse must be pleaded—proof of readiness to per jorm—subscription to the stock of a corporation to be organized—what departure in its organization from the prospectus discharges the subscribers.</p> <p>Where the plaintiff in an action to recover damages for the breach of a contract alleges full -performance on his part, he cannot recover without establishing that fact. If he relies upon proof that he was excused from full performance he is hound to allege the facts constituting such excuse, and, in addition thereto, that he was at that time ready and able to perform, and would have done so except for the acts of the other parties to the contract.. The refusal of the other parties to proceed under the contract will not relieve the plaintiff from the necessity of proving his ability and readiness to. perform the contract on his part.</p> <p>'Where subscriptions to the stock of a corporation about to be formed áre obtained in connection with a prospectus stating that -the object of the corporation is “to acquire all patents and rights for all countries, except the United States and Canada, to metal turning machines,, known as the ‘Hoffmann machines,’ and of which E. Gr. Hoffmann is the inventor and patentee, as well as all improvements, additions, etc.,” the organization of a corporation, “to make, contract for the manufacture, or purchase of,' buy, use, sell, lease, rent or mortgage all mechanical or other apparatus,, machinery and implements for metal turning machines, or any other article Or articles connected therewith or incident thereto, or any or all of them, and in general to do a manufacturing business,” constitutes such a material departure from the agreement entered into by the subscribers as will render the subscriptions unenforcible as to non-assenting subscribers.</p>

Appeal by the defendant, John W. Wilson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of May, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May,.1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Chapter General of America, Knights of St. John and Malta, and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrers to the amended complaint.

Appeal by the defendant, Joseph M. McOaul, from an order of the Supreme Court, made at the Hew York Special Term and entered ill the office of the clerk of the county of Hew York on the-10th day of July, 1901, restraining and enjoining the defendant, his-agents and servants, “ from showing, displaying or otherwise using-during the pendency of this action in or upon any papers, devices,, sign or signs, or otherwise, in the business conducted by the defendant at Hos. 120-122…

Appeal by the plaintiff, The Tribune Association, from that portion of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 11th day of May, 1901, upon the decision of the court rendered after a trial before the court without a jury, as amended nunc pro tunc by an order entered in said clerk’s office on the 31st day of May, 1901, which dismisses the plaintiff’s-first cause of action upon the merits.

<p>Partition of real pi'operty, between the committee of a lunatic and his cotenants, induced by the fraud of the latter — set aside at the suit of his heirs — sufficiency of the complaint in such an action as to an offer and ability to restore.</p> <p>Where a lunatic and his uncle and aunt are cotenants of a number of parcels of real estate, and the committee of the lunatic, who has no knowledge in respect to the condition of the real estate, at the suggestion of the uncle and aunt, obtains leave of the court to join in a voluntary partition of such real estate, the uncle and aunt, in their dealings with the committee of the lunatic, are bound to exercise the utmost good faith.</p> <p>Where the uncle and aunt, by means of false representations and fraudulent concealment in respect to the condition of the real estate, induce the committee of the lunatic to accept as the lunatic’s share of the real estate, property, the title to which is in dispute and the value-of which is much less than the value of the property set apart for the uncle and aunt, the lunatic’s heirs may, after his death, maintain an action to set aside the partition.</p> <p>Where the complaint in such an action alleges in one portion thereof that deeds of the property set apart to the lunatic were executed, and in another portion thereof alleges that such deeds were never delivered, but does not contain an offer or an allegation of ability to restore whatever the lunatic had received under the agreement, the court will, for the purpose of sustaining the complaint against a demurrer, assume that the execution of the deeds to the lunatic was not completed by delivery.</p> <p>Semble, that if it should appear upon the trial that the deeds had been delivered, the complaint would have to be dismissed because of its failure to contain an ■ offer and an allegation of ability to restore.</p>

Appeal by the plaintiffs, Benno Jaffe and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 28th day of August, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Fraudulent conveyance — under what circumstances a conveyance from, a husband, to his wife for a nominal consideration is not fraudulent as to creditors — burden of proof—declarations by the grantor made after the conveyance.</p> <p>A conveyance of real estate-, made by a man to bis wife for a nominal consideration, at a time when his only liability was a contingent one as surety upon - a lease under which no rent was then due, will not be set aside as fraudulent,' because some two years after the execution of the conveyance the tenant makes default in the payment of rent due under the lease and the surety (the grantor) is then insolvent and is unable to pay the judgment rendered against him therefor, where it does not appear that at the time of the execution of the conveyance,, either the grantor or the grantee intended to defraud any one or contemplated- any liability under the guaranty, and it is shown that up to a short time before the judgment was entered against him the grantor- retained sufficient property with which to satisfy any liability under the lease.</p> <p>In an action by a judgment creditor to set aside the conveyance, declarations made by the grantor after the execution of the conveyance are not competent as against the grantee for the purpose of showing fraud.</p> <p>In such a case the burden of showing a fraudulent intent is upon the plaintiff, and the fact that one of the defendants was called as a witness and testified to facts inconsistent with a fraudulent intent, and that the court refused to believe his testimony, is not evidence from which the court can properly find the existence of a fraudulent intent.</p>

<p>Assault — charge to the jury where an inspector of the bureau of incumbrances in Hew York city is indicted for an assault, committed while he is engaged in removing goods from a sidewalk.</p> <p>Upon a trial under a charge of assault, it appeared that the defendant was an inspector in the bureau of incumbrances of the city of New York, and that he and another inspector had been sent to a store in which one Scott was employed for the purpose of removing and taking away whatever merchandise might be found upon the sidewalk in front of the store. The evidence for the prosecu-. tion was that as the defendant and his companion reached the store Scott was coming out with a leather traveling bag which he was taking to a factory; that the defendant and the other inspector undertook to take the bag from him, and that in the altercation which followed the assault was committed.</p> <p>The defendant’s evidence tended to show that as Scott came out of the store he attempted to seize one of the leather bags which the defendant was removing from the sidewalk, and was about to take it away; that the defendant and the other inspector attempted to take the bag from him, but that no unnecessary force was used.</p> <p>After the jury had retired they sent the following inquiry to the court: “Will your Honor please inform the jury that, if Mr. Schlesinger pushed Scott aside and, in doing so, he fell and received the injury, whether this can be considered an accident and not an assault? ’’ to which the court responded, “I said to find him guilty you must find that it was willful and wrongful.” Thereupon one of the jurors inquired, “If it was done by accident?” to which the court replied, “Oh, the law does not punish people criminally for accidents.” The juror then asked, “ Supposing Scott interfered with him in his duties, and he pushed him aside and he fell? ” to which the court replied, “ Any unlawful touching of a person, if done willfully and wrongfully, is an assault. If I put the tip of my finger upon you, willfully and wrongfully, that is an assault.”</p> <p>Held, that the last instruction, while correct in the abstract, was misleading, and required the reversal of a judgment of conviction;</p> <p>That it did not answer the inquiry or give the jury a correct idea of the principle to be applied, in case they found that Scott interfered with the defendant in the discharge of his duties;</p> <p>That the proper rule was that if any one interfered with the defendant in the discharge of his duties, either in removing or in keeping possession of the things removed, he was justified in using sufficient force to prevent such interference, and that the court, in answering the inquiry, should have so instructed the jury.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of September, 1901, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 20th day of September, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Edward S. Hatch, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of July, 1901, upon the report of a referee.

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 1st day of October, 1901, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>The judgment in this action restrained the defendant from using Exterior street with its structures and also perpetually enjoining it from maintaining a dumping board along the bulkhead line of the dock, wharf, cribwork, etc., or on the crib-work on Exterior street, and directed a removal of the same.</p>

Appeal by the defendant, Samuel Green, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of clerk of the county of Rew York on the 25th day of June, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, William B. Axford, as administrator, etc., of William H. Axford, deceased, from an order of the Supreme ■ Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 16th day of January, 1902, granting a motion made by Eli T. Ely and Clarence M. Ely, subsequent lienors by attachment and by judgment, to vacate the plaintiff’s attachment against the property of the defendant, Ezra K. Seguine.</p>

Appeal by the defendants, John Dawson and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of October; 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of October, 1901, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the claimant, Herbert P. Bissell, as receiver of Linus Jones Peck & Co., from a judgment of the Court of Claims of the State of Few York in favor of the defendant, entered in the office of the clerk of said court on the 21st day of December, 1900, upon the decision of the court dismissing the claim on the ground that it was barred before presentation by the six years’ Statute of Limitations.

Appeal by the defendant, John E. Thompson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 16th day of September,… Held: and the jury rendered a verdict in her favor for such amount and interest. .From the judgment entered thereon, and from the order denying a new trial upon the minutes, this appeal is takem

<p> Breach of a contract to give the plaintiffs the exclusive sale of a hat manufactured by the defendants—measure of damages—the plaintiffs are not entitled to recover for unsold hats at the price at which they contracted to sell them. </p> <p>In an action for the breach of a contract made between the plaintiffs, who were the proprietors of a retail hat store in Binghamton, IT. Y., and the defendants, who were the manufacturers of the "Hawes Guarantee Hat,” it appeared that the plaintiffs agreed to handle, advertise and push the sale of such hat in the city of Binghamton and the county of Broome and to make it their "leader” in preference to all other makes of hats, in consideration of which the defendants agreed to sell such hats to the plaintiffs at the price of twenty-four dollars per dozen, the plaintiffs agreeing to sell the hats for three dollars each and the defendants agreeing not to sell such hats to any other person in that locality — the contract to continue in force as long as the plaintiffs performed on their ■ part. The breach consisted of the action of the defendants in refusing to sell the hats to the plaintiffs and in selling the hats to another dealer in the city of Binghamton. It appeared that at the time such breach occurred, the plaintiffs had on hand 197 hats. Nothing in the contract prevented the plaintiffs from thereafter selling the. hats and it was not shown that the breach had in any way depreciated their value.</p> <p>Held, that the measure of the plaintiffs’ damages was the value of the contract;</p> <p>That they were not,, however, entitled to recover the value of the 197 hats still on hand and unsold at the time of the breach, at the_ rate of three dollars for each hat.</p>

Appeal by the defendant, Harvey Leamon., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Schenectady on the 25th day of March, 190Í, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order of the Supreme Court made at the Montgomery Special Term and entered in' the office of the clerk of thé county of Schenectady on the 25th day of March, 1901, granting to…

<p>Appeal by the defendant, Friedericka Hohloch, as administratrix' etc., of Jacob Priester, Jr., deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 24th day of October, 1901, upon the decision of the court rendered after a trial at the Saratoga Special Term overruling a demurrer to the complaint.</p> <p>This action is brought by the widow of a deceased lessor to recover rent reserved in a lease executed by him prior to his.death: The complaint, in substance, avers that the plaintiff’s husband leased to Jacob Priester, Jr., his farm for the term of five years from' January 25, 1897, for the annual rent of $500, payable October first in each year; that, by the terms of such lease, it was further provided “ that in case of the death of said lessor before the expiration of said lease, that the rent for the unexpired term should be paid to the wife of said lessor; that in and by said lease the rent for the unexpired term after the death of said lessor was duly assigned to plaintiff, who was the wife and is now the widow of said lessor, and by the terms of said lease and the death of said lessor, plaintiff became and now is the owner of the rent which became due under said lease on October 1st, 1900.” It further avers that such lessee entered under such lease on January 25, 1897, and that he died January 2, 1898, intestate, and that this defendant is his duly qualified administratrix; that the lessor died intestate December 22, 1898; that on October 1, 1900, there became due “ under the terms of said lease,” from the defendant as such administratrix of said lessee, to the administrators, successors or assigns of said lessor, the sum of $500 ; that the administrators of said deceased lessor, on December 4, 1900, for value received, sold and assigned to plaintiff the said lease and all moneys due and to grow due thereunder, and all their rights and claims therein and thereunder. It further avers that the lessor was the owner in fee of the said prem-1 ises, and that the plaintiff, as the widow of said deceased lessor, has a dower interest in the premises so leased. It further avers a proper demand upon the defendant, as administratrix of said deceased lessee, for the $500 of rent so becoming due on October 1, 1900, and that she has rejected the claim and refused to pay it; the complaint then prays judgment for a recovery of the same.</p> <p>The defendant demurred to such complaint on the ground that it .does not set forth a cause of action. The court at Special Term overruled such demurrer, and from the interlocutory judgment entered upon such decision this appeal is taken.</p>

Appeal by the defendant, A. Page Smith, as receiver, etc., of Joseph Seeney, from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 18th day of June, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 21st day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>An agreement by a devisee, hewing a life estate and a right to use the proceeds of property, with a third person to sell it and pay over the proceeds—it creates an agency or a loan with collateral, not a trust — the devisee becomes a creditor of the deceased third person’s estate—a surrogate cannot decree payment of such an unliquidated claim—what surrogate may direct payment thereof after an accounting elsewhere.</p> <p>Harriet A. Walker, a resident of Delaware county, died, leaving a will, which was admitted to probate in that county, by which she gave to her husband, James Walker, the use of all her real and personal property for life, with the added right to sell and dispose of any of the property “ so far and so much as he shall deem necessary for his comfortable support and maintenance during his life.” The will further provided that the portion of the property left at . the death of her husband should pass to her two sons equally. Thereafter James Walker conveyed to David Walker a vendor’s interest in a land contract, which apparently constituted part of his wife’s estate, under an agreement that David Walker should collect the moneys unpaid under the land contract, and would, during the term of the natural life of James Walker, advance to the latter such sums of money as the said James. Walker should need for his support and maintenance, not exceeding in the aggregate the sum collected.</p> <p>David Walker further agreed to pay the expenses attending the last sickness and funeral of James Walker, and that, upon the latter’s death, he would convey the land and the land contract to Silas Walker, a son of the said James Walker, upon being reimbursed for the moneys which he had advanced pursuant to the contract, less the amount which he had received thereunder.</p> <p>David Walker, after collecting certain of the moneys due upon the land contract and paying over said sums to James Walker, died, leaving a last will and testament which was admitted to probate in Broome county, of which county he was a resident.</p> <p>In a proceeding instituted in the Surrogate’s Court of Broome county by James Walker to compel the executrix of David Walker to account for the money and securities received by her testator under the agreement, it was</p> <p>Held, that the agreement between James Walker and David Walker did not create an express trust in David Walker, as James Walker, under the terms of his wife’s will, had no power to create such a trust;</p> <p>That, under the circumstances, the contract with David Walker created either an agency, revocable at the pleasure of the principal or merely the relation of lender and borrower with security given for moneys to be loaned;</p> <p>That James Walker was a creditor of the estate of David Walker to the extent of the balance of the proceeds of the agency in the hands of David Walker at the time of his death;</p> <p>That, as the claim was not liquidated, the surrogate of Broome county had no power, under .section 2722 of the Code of Civil Procedure, to direct its payment;</p> <p>That the claim could be liquidated only upon an accounting and that, as such accounting was an accounting of the acts of David Walker and not of the acts of his executrix,. the surrogate would not have jurisdiction to entertain it, éxcept - as provided by section 1822 of the Code of Civil Procedure, upon the - consent of all the parties;</p> <p>That if the claim had been liquidated or established, the surrogate of Broome county was the only surrogate having authority to direct its payment.</p>

Appeal by the plaintiff, American Casualty Insurance Company of Oneonta, New York, from a judgment of the Supreme Court in favor of the defendant, entered in the . office of the clerk of the county' of Broome on the 20th day of February, 1901, upon the report of a referee dismissing..the complaint upon the merits.

Appeal by the plaintiff, Hugh J. Baldwin, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered-in the office of the clerk of the county of Tioga on the 22d day of July, 1901, upon the decision of the court, rendered after a trial at the Broome Special Term, overruling a demurrer to the second defense in the defendants’ answer, described as a defense in justification.

Appeal by the defendant, Charles A. McAllister, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 23d day of May, 1901, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes. The action is in the nature of assault and battery. The plaintiff claimed that defendant shot him with a rifle.

Appeal by the plaintiff, William Ehle, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 4th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Montgomery Trial Term.

Appeal by the defendant Catharine Ida Weatherby, as administratrix, etc., of Nelson L. Weatherby, deceased, from that portion, of a judgment of the Supreme Court in favor of the defendant' International Navigation Company, entered in the office of the clerk of the county of Rensselaer on the 13th day of August, 1901, upon the .decision of the court- rendered after a trial at the Rensselaer Trial Term before the court without a jury, which awarded the International Navigation…

<p>Appeal by the plaintiff, Henry J. Smith, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of St. Lawrence on the 18th day of JSTovember, 1901, upon the decision of the court, rendered after a trial at the St. Lawrence Special Term, dismissing the complaint upon the merits, on the ground that plaintiff had no interest in the real estate of the testator, Owen Smith.</p> <p>The plaintiff is a son of Owen Smith, who died July 27, 1892. At the time of his death Owen Smith was a resident naturalized citizen of this State and the owner of some real estate in St. Lawrence county. His son, ther plaintiff here, was also a resident citizen. The deceased at the time of his death had a brother, Thomas Smith, in Ireland. He was a non-resident alien. Thomas Smith died intestate October 7, 1892, two months and ten days after the death of Owen, and before he had any. knowledge of the provisions of Owen Smith’s will. The last will of Owen Smith gave to Thomas Smith, his alien brother in Ireland, a third of his real estate or the proceeds thereof, in case the executors should sell the real estate, which under the will they had power to do.</p> <p>The plaintiff contends that under the Statute of Wills the devise to Thomas Smith was void and that the third interest so devised, immediately upon the death of Owen, descended to him as sole heir at law; and this action is brought to establish this contention.</p>

Appeal by the plaintiff, Jonas M. Kilmer, from that portion of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 25th day of January, 1902, requiring and directing as a condition for the discontinuance of the action the payment to the defendant of an additional allowance of $225 and a stipulation not to begin another action for the same alleged cause.

Appeal by the relator, The Argus Company^ from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 13th day of February, 1902, denying the relator’s motion for a mandamus directed to Frederick U. Bresler, as clerk of the common council of the city of Albany, Ü. T., requiring him to deliver to the relator for publication all matter required by law to be published in the city’s official papers.

Appeal by the defendants, The International Paper Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hamilton on the 28th day of September, 1901, upon the decision of the court rendered after a trial at the Fulton Trial Term before the court without a jury, holding that certain taxes had been paid and that plaintiffs were owners of two-thirds of 1,128 acres of land in the northwesterly…

Appeal by the defendant, Alice P. Smith, as sole executrix, etc., of Lewis M. Smith, deceased, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 27th; day of May, 1901, upon the report of a referee in an action for an accounting.

<p>Deposition not certified to Time been read'to the witness nor filed within ten days — suppressed unless so certified and unless an order to file it nunc pro tunc be obtained.</p> <p>Where on an appeal from an order denying a motion to suppress the deposition of a witness, it appeared that the referee who took the deposition failed to certify that it was read over to the witness and subscribed by her, and that the report of the referee and the original minutes of the examination were not filed in the office of the clerk of the county in which the action was brought within ten days after the deposition was taken, both of which are required by the statute, the Appellate Division considered that the deposition should be suppressed unless the respondents obtained a certificate from the referee, before whom the deposition was taken, showing that after it was completed it was carefully read to, and subscribed by, the witness, and also obtained an order from the. Special Term allowing the certificate and .the deposition to be filed with the clerk of the county in which the action was brought nunc pro tunc as of a date within ten days of the day on which the deposition was taken, and should actually so file such certificate and deposition.</p>

Appeal by the defendant, Thomas S. Walker, from an order of the Supreme Court, made at the Montgoméry Special Term and entered in the office of the clerk of the county of Franklin on the 8th day of July, 1901, denying the defendant’s motion to change the place of trial of the action from the county of Franklin to the county of Hamilton.

Appeal by the defendant,. Mary Johnson, from a judgment of the County Court of Tioga county in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on -the 10th day of December, 1901, upon the verdict of a jury convicting her of the crime of arson in the second degree, and also from an order entered in said clerk’s office on the 10th day of December, 190.1, denying the defendant’s motion for a new trial made upon the minutes.

<p>Trust estate—assessments for sewers and pavements made during a life estate,. charged against the principal of the trust fund.</p> <p>A testator devised certain city- real estate to a trustee in trust to receive the . income thereof and pay the same over to his daughter during her life, the will providing .that at the death of the daughter, the trustee should convey the property to such persons as the daughter might appoint by her last will and testament, and that in the event of her failure to exercise the power of appointment the property should pass to her issue then living. During the continuance of the trust the city constructed sewers and vitrified brick pavements along the streets upon which the various parcels of real estate were situated and levied assessments'to defray the expensé thereof upon such real estate. The testator’s daughter was then forty-four years old and unmarried,</p> <p>Held, that the sewers and pavements were permanent improvements and that, in ■ view of the peculiar provisions of the will and of the fact that there was no remainderman in existence, the entire amount of the assessments should be' charged against the principal of the trust estate.</p>

Appeal by the defendant, George Upham, from a judgment of the County Court of Sullivan county in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 25th day of March, 1901, upon the decision of the court reversing, upon appeal, a judgment in favor of the defendant' rendered by a justice of the peace.

Appeal by the defendant, Charles H. Morse, from a judgment of the County Court of Ulster county in favor-of the plaintiff, entered in the office of the clerk of the county of Ulster on the 15th day of May, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of May, 1900, denying the defendant’s motion for a new trial made upon the minutes, and also from that portion of an order bearing date the 4th day of June, 1900, and…

Appeal by Mary Q. Polhamus and another from a decree of the Surrogate’s Court of the county of Montgomery, entered in said Surrogate’s Court on the 19th day of June, 1901, setting aside a sale of real estate of the decedent, Charles J. Wood, together with the orders and decrees directing and confirming such sale.

<p>License to sell milk —penalty for holding oneself out as having a license without having it or after it has expired — when not incurred.</p> <p>The board of health of the city of Gloversville adopted, pursuant to law, the following regulation: “ All venders of milk shall register their names with the clerk of the board, who shall issue to them a certificate of authority to sell ■ milk, under his hand and seal. Every person so authorized to sell shall place in a conspicuous place on both sides of his milk wagon or sleigh the number of the license. Milk tickets shall be used but once. The certificates issued as . above shall continue in force one year from the date pf issue. Every person who holds himself out as possessing such certificate without having taken out the same, or after the same has been revoked, or has expired, shall be liable to a penalty of ten dollars.” A person engaged in vending milk in the city obtained a certificate of authority from the city board of health and placed the number of the certificate in metal figures on the front end of the dashboard of his milk wagon. When the certificate of authority expired the milk vendor refused to register his name with the clerk of the board of health and procure a new certificate of authority, contending that such a certificate was not necessary. He also had his wagon repainted, the metal figures being painted over • with the rest of the wagon.</p> <p>Held, that the milk vendor was not liable for the penalty imposed by the regulation, as such penalty was directed only against a person who held himself out as possessing a certificate, without having taken out the same or after the same had been revoked or had expired.</p>

<p>Appeal by Edward M. Sayre from an order of a justice of the Supreme Court of the State of New York, made at chambers and entered in the office of the clerk of the county of Chemung on the 11th day of November, 1901, denying his motion to vacate an order made by the county judge of Chemung county on the 16th day of October, 1901, for his examination, individually, as an officer of the Sayre Manufacturing Company and the Sayre Brothers Manufacturing Company and for an examination and inspection of the books and papers of said corporations, in an action about to be brought by the Porter Screen Manufacturing Company against the said Sayre' Manufacturing Company, Sayre Brothers Manufacturing Company and others.</p> <p>The Porter Screen Manufacturing Company is a foreign corporation. The Sayre Manufacturing Company, a domestic corporation, was incorporated on or about the 18th day of November, 1891, and has its principal place of business at Horseheads, N. Y.</p> <p>Between the 20th day of January, 1899, and the 5th' day of July, 1899, the Porter Screen Manufacturing Company sold and delivered to the Sayre Manufacturing Company goods and merchandise to an amount exceeding $2,000 in value. The Sayre Manufacturing Company did not pay for said goods and merchandise, and on the 18th -day of January, 1900, an action was commenced in. the Supreme Court of this State by the Porter Screen Manufacturing Company against it for the value of such goods and merchandise. An answer was interposed, and the issues so joined were referred to a referee for trial and he subsequently reported in favor of the plaintiff, and judgment was entered in favor of the plaintiff and against the defendant for the sum Of. $2,764.70 damages and costs on the 6th' day of. August, 1901.</p> <p>Thereafter execution was issued against said Sayre Manufacturing Company, and on or before the 1st day of September, 1901, the same was returned wholly unsatisfied and the said judgment still remains unpaid. In January, 1898, and again in January, 1899, the Sayre Manufacturing Company filed its annual report as provided by law, but failed to make a report in January, 1900.</p> <p>The Sayre-Hatfield Company, a domestic corporation, was duly incorporated on or about the 12th day of January, 1900, and has its principal place of business at Horseheads. On the 7th day of August, 1900, an order was duly granted by the Supreme Court authorizing the Sayre-Hatfield Company to assume the name of Sayre Brothers- Manufacturing Company. At the time of the commencement of said action by the Porter Screen Manufacturing Company against the said Sayre Manufacturing Company,, said Sayre Manufacturing Company was the owner in fee of two parcels of land at Horseheads, 27. Y., on one of which parcels of land was situated the mill and machinery of said Sayre Manufacturing Company, and such real estate, mill and machinery constituted nearly the entire property and assets of said Sayre Manufacturing Company, and was of the value of at least $5,000. On the 13th day of February, 1900, there was recorded in the office of the clerk of Chemung county a deed dated the 1st day of January, 1900, conveying the said mill premises to the Sayre-Hatfield Company for the stated consideration of one dollar, and the Sayre-Hatfield Company and said Sayre Brothers Manufacturing Company, its successor, have ever since continued in the possession and enjoyment of the said real estate and personal property formerly belonging to said Sayre Manufacturing Company.</p> <p>On or about the 16th day of October, 1901, the Porter Screen Manufacturing Company presented to the county judge of Che-mung county an affidavit upon which it asked for and obtained an order that Edward M. Sayre, individually, and as an officer of the Sayre Manufacturing Company and of the Sayre Brothers Manufacturing Company, appear before a referee named in said order at a time and place therein named to be examined in an action about to be brought in the Supreme Court by the Porter Screen Manufacturing Company against the Sayre Manufacturing Company, the Sayre Brothers Manufacturing Company, Edward M. Sayre and others named, and also directing that said Edward M. Sayre produce upon such examination the books and records of said defendant corporations. Said affidavit also states:</p> <p>“ That the nature of the controversy which is expected to be the subject of said action, will be the dissolution of the said corporation, Sayre Manufacturing Company, and the sequestration of its property and the enforcement of the liability of said individual defendants, as officers and directors of said corporation to the creditors of the" said corporation and especially to. the Porter Screen Co., for their failure to make and file an annual report as of the first day of January, 1900, and compelling them to pay to the creditors of said Sayre Mfg. Co., the value of the property which they have acquired, transferred to others, lost or wasted, by violation of their duties.”</p> <p>The said Edward M. Sayre is, and has been during the times mentioned, secretary of the Sayre Manufacturing Company, and has possession of the books and records of said corporation and is fully informed as to the transfers by said corporation and disposition made of its' assets.</p> <p>The affidavit further states that the examination of Edward M. Sayre, individually, and as an officer of the Sayre Manufacturing Conrpany and the Sayre Brothers Manufacturing Company, is necessary to enable the Porter Screen Manufacturing Company to-frame its complaint in the action so to be brought.</p> <p>A motion was made in the Supreme Court by Edward M. Sayre, Sayre Manufacturing Company and Sayre Brothers Manufacturing Company to set aside the order of said county judge, and in the affidavits read by them on said motion it appears that at a meeting of the stockholders of the Sayre Manufacturing Company, held on the 1st day of February, 1900, a resolution was adopted as follows:</p> <p>“ Resolved, That the President and Secretary of the Sayre Manufacturing Company be authorized to enter into negotiations for the sale and transfer of land, buildings, and machinery of said corporation unto the Sayre Hatfield Company for the sum of at least $13,000, and that the said President and Secretary be, and they are hereby authorized and empowered to make, execute and deliver to the said purchaser a good and sufficient deed of said land, buildings and machinery on receiving the consideration therefor.”</p> <p>By the affidavit of Edward M. Sayre, it appears that he had the charge and control of the Sayre Manufacturing Company and that, although but five shares of the stock of such company stood in his name, nevertheless at the time it ceased to do business, he owned and for a long time had owned all of the capital stock of said corporation. He also states in his affidavit that the deed of the property of the Sayre Manufacturing Company was executed to the Sayre-Hatfield Company pursuant to the resolution of the stockholders, and $13,000 of the stock of the Sayre-Hatfield Company was thereupon issued to him, Edward M. Sayre, individually. It also appears by said affidavit that the said Edward M. Sayre is now advised that he should have taken said stock in the name of the Sayre Manufacturing Company and that he, in law, now holds the same in trust for the Sayre Manufacturing Company and its creditors.</p> <p>The motion to set aside said order of the county judge was denied, from which order this appeal is taken.</p>

Appeal by the defendant, the Eureka Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 24th day of January, 1901, upon the verdict of a jury for $5,120, and also from an order entered in said clerk’s office on the 25th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>. • Appeal, by the plaintiff, William A. Lathrop, from a judgment of the Supreme Court in favor of' the defendant,;, entered in the office of the clerk of the county of Oswego on the 23d day. of November, 1897, upon the verdict óf a jury, and also from an order entered in said clerk’s office on the 23d day of December, 1897, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>" The action is in replevin, and was commenced on the 20th day of October, 1896, to recover possession of' certain personal property alleged to be of the value of about $2,000, which the plaintiff claims belonged to him, and which he claims the defendant wrongfully and unlawfully took possession of on the 29th day of September, 1896, and converted to his own use. The property which is the subject of dispute consisted of hotel furniture and furnishings, and on and prior to September 2, 1896, was in the possession of the Lake Ontario and Riverside Railway Company in a hotel which was being run by it. From time to time prior -to that date the property liad been- purchased by the railway company from S. P. Pierce’s Sons of Syracuse, N. Y., to the amount of $675 ; from A. S. Norton <fc Co. of Oswego, N. Y., to the amount of $1,835.20, and from other merchants to- the amount of about $1,200. On the day last mentioned the railway company assumed to sell to the plaintiff all of said property for the consideration of $1,282, $600 of which was paid in cash by the plaintiff and the balance by assuming the payment of the account of S. P. Pierce’s Sons, and the railway company</p> <p>executed á bill of sale of the property to the plaintiff and delivered •possession thereof to. him. Thereafter, and on the 29th day of September, 1896, the furniture obtained from Norton & Co." not having been paid for, they commenced an action in replevin against the railway company to recover the" same from it, claiming that the .property was sold upon condition that the title to it should not pass, but should remain in Norton & Co. until fully paid for by the railway company. In that action the defendant, as sheriff of Oswego county, took possession of the property sold to the railway company by Norton & Co., which constituted a part of the 'property sold by ■the railway company to the plaintiff, and refused, to deliver it to the plaintiff after demand made. Thereupon the plaintiff brought this .action of replevin against the defendant to recover the property. so -taken by him at the instance of Norton & Co.</p>

<p> Negligence—injury to a passenger stepping from a street railroad ear into a hole in an asphalt pavement within two feet of the tracks, which a paving company had agreed to keep in repair. </p> <p>In an action to recover damages for personal injuries, it appeared that the plaintiff was a passenger on the defendant’s street railroad in the city of Syracuse, and that while alighting from the car she stepped into a hole in the asphalt with which the street was paved and broke her ankle. The hole had existed for several months; and was four feet six inches long, one foot five inches wide and three inches deep. The inner edge vfa's one foot five inches from the outer rail of the defendant's track. : ■</p> <p>It further appeared that the pavement had been laid by a paving company, pursuant to á resolution of the common council of the city, authorizing the paving company, at its own expense, to take up the existing pavement and to repave the street with asphaltina and to keep- the same in repair for five years, the work to be done in accordance with plans and specifications of the city engineer and subject to the approval of the commissioner of public works.</p> <p>Held, that the. resolution was competent upon the question of the defendant’s negligence, as the defendant had a right, in determining whether or not the hole’was dangerous, to take into consideration the fact that the duty of repairing the street had been imposed upon the paving company, and that neither the city nor the paving company had taken any steps to repair the defect.</p> <p>Semble, that the adoption of the resolution operated, during the five years that the paving company agreed to keep the pavement in repair, to relieve the defendant from the obligation imposed upon it by section 98 of the Railroad Law (Laws Of 1890, chap. 565, asamd. by Laws of 1893, chap. 676) of keeping in repair the pavement for a distance of two feet in width outside of its tracks.</p> <p>Spring and Hiscock, JJ,, dissented!</p>

<p>Trust — taxes on real property, assessed during a testator’s life, should be paid from his general estate and not from, a trust fund of which the real property is part-accounting, when it does not create an estoppel.</p> <p>Taxes levied prior to the death of a testator, upon real property in which a trust is created by the testator’s will, are not a charge- against the trust estate, but are payable out of the testator’s general estate.</p> <p>Where it appears that the trastees were also the executors under the will, and that pending the probate thereof they were appointed temporary administrators -of the estate, and while, acting as such paid taxes assessed upon the trust property ■ prior to the testator’s death, a decree rendered upon their final accounting as temporary administrators, which simply determined that the temporary administrators had received from all sources a- certain sum and had expended for all purposes a certain other sum, leaving a balance of §558 in their hands which, less their commissions and costs, they were directed to pay over to themselves as executors, and which did not attempt to. make any distinction between the receipts and expenditures received and made on account of the trust estate from those received and made on account of the general estate, will not estop the cesiuis que trustent, when, upon the accounting of the trustees, the latter seek to charge the payment of such taxes upon the trust estate, from insisting that such taxes should be paid out of the general estate.</p>

<p>Appeal by the defendant, The First National Bank of Cuba, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 3d day of October, 1900, upon the report of a referee.</p> <p>This action was commenced January 9, 1899, to recover penalties from the defendant, a national bank, for receiving or reserving more than six per cent interest in violation of sections 5197 and 5198 of the United States Revised Statutes. The fact appears without contradiction that as to a series of notes negotiated by the plaintiff with the defendant the latter did receive money in excess of the legal rate of interest, .but several defenses are interposed, an appreciation of which renders necessary a review of the various transactions.</p> <p>On November 18, 1897, the plaintiff presented to the bank a promissory note of $5-,000 due in three months, signed by Julia A. Smith, the mother of the plaintiff, to the order of A. W. and C. S. Smith. A. W. Smith is the plaintiff and C. S. Smith his brother. The note was duly indorsed and negotiated, with the defendant, which retained for the discount $87.50 which is $12.50 in excess of the legal rate of interest. This note was renewed at its maturity by a note February 18, 1898, signed and indorsed as the original note, but the avails of the said note, $4,911.55, less the discount, were placed to the credit of the maker, and the note of $5,000 was charged to her account. A precisely similar transaction occurred three months later and also upon a further renewal July 18, 1898. At the maturity of this last note of the series the referee has found that the plaintiff paid the note, but disallowed the discount on the preceding notes on the ground that it was paid each time by Mrs. Smith, the maker. No question arises as to the Statute of Limitations over this transaction, and the finding of the referee does no violence to the facts.</p> <p>On the 10th day of August, 1896, the plaintiff negotiated with the defendant a promissory note for $4,761.48, executed by him as maker to the order of the said Julia A. Smith and indorsed by her and payable at the defendant bank three months from its date. The proceeds of this note, less the discount ($83,35),. were, credited to the account of the plaintiff. This note was renewed in about three months by a like note, but the. avails were credited to the Smith estate and the prior note charged up to that account. - A like renewal was had in February, 1897, and the same disposition was made of the proceeds, and that note was also charged to the account of the Smith estate. Again, this note was renewed by another similar in form in May, 1897, and on that day there was charged to the account of Julia A. Smith in the bank $100, and to t'he Smith estate $37.55, covering the discount on this note , and another one, and this note was paid in full by the plaintiff about November 20, 1897. On these notes the excess of interest reserved each time was about one per cent, and the referee finding this was paid, by the plaintiff,- allowed him to recover therefor less the sum of $100 charged to the account .of Julia A. Smith.</p> <p>On the 2d day of January, 1896, the plaintiff negotiated with the defendant a promissory note of $3,000 made by Julia A. Smith to the order of A. W. and O. S. Smith and duly indorsed and due in three months, and the avails thereof, less the discount of $61.25, or an excess beyond the lawful rate of $16.25, were credited to the Smitli estate. This note was renewed from time' to time, the avails each time .being- credited to the account-of the Smith estate and the note. charged to the same account until the last note of this series, which was .given May Í0, 1897, the discount whereof was charged to Julia A. Smith, and the $37.55 to the Smith estate as above mentioned. The discount on. these several notes was paid by the plaintiff, who finally paid the note in full November 20, 1897.</p> <p>It-is apparent, therefore,: that these notes were all made and negotiated for the benefit of the plaintiff, but the evidence is.not as clear as it should be as to the person paying some of the payments of interest or discount. There were three distinct accounts in the bank, one of the plaintiff, one of his mother and one denominated that of the Smith estate. Just who composed the latter does not appear, except that the indorsers were brothers, and the defendant seemed to exercise the privilege of charging the discount to' any of these accounts which were sufficiently large to meet it in case the plaintiff’s account was inadequate for that purpose. The evidence shows unmistakably that the plaintiff paid these notes, and he testified also that he paid the discount each time it arose. The final payments were made by a loan upon his mother’s property, but he secured her so that he in fact paid the debts. Pass books were written up at regular intervals of these three accounts and delivered to the persons entitled to them, so that we may assume each party interested was advised of the course adopted by the defendant. There are also other notes involved in this litigation, but as the referee did not allow any recovery for the illegal interest reserved on them, it is unnecessary to go into their history.</p>

Appeal by the defendant, The Niagara Gorge Railroad Company, from a judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 4th day of May, 1901, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the l'Tth day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Lulu E. Carter, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 13th day of March, 1901, upon the report of a referee directing the partition of the premises described in the complaint.</p>

Appeal by Mary S. Sack, as guardian of the estate of Rosa. E, Freeland, from an order of the Surrogate’s Court of the county of Niagara, entered in said Surrogate’s Court on the 18th day of December, 1901, denying her motion to dismiss a petition on the ground that the claim of the petitioner to compel an accounting was. barred by the Statute of Limitations, and requiring her to file an account as general guardian of the petitioner.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the -5th day of September, 1901, upon the verdict of a jury for $1,000, which was reduced to $500, and also from an order entered' in said clerk’s office on the 5th day of September, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Agricultural Insurance Company, from an order of the Supreme Court, made at the Oswego Special Term and entered in the office of the clerk of the county of Jefferson on the 8th day of October, 1901, setting aside the report of a referee and the judgment entered thereon and a stipulation and order of reference.

<p> Execution against an administrator on a surrogate’s decree after the expiration of five years—notice to the administrator—peremptory, mandamus against the surrogate—review Try mandamus. </p> <p>Sections 1377 and 1378 of the Code of Civil Procedure, which provide that ' notice of an application to the court for leave to issue execution on a final judgment, after the lapse of five years from its entry, must be served personally upon the adverse party, if he is a residént of the State, are applicable to a decree of the Surrogate’s Court judicially settling the accounts of an administrator.</p> <p>The five years’ limitation commences to run from the time of the entry of the ' decree in the Surrogate’s Court, and not from the time that a transcript of the ' decree is docketed in the county clerk’s office.</p> <p>Where an administrator, pursuant to the terms of a decree of the Surrogate’s Court finally settling his accounts, pays into the Surrogate’s Court the distributive share of one of the next of kin supposed to be dead, and after the lapse of moré than five years after the entry of the decree such next of kin appears and makes application for leave to issue execution upon the decree in order to obtain payment of his distributive share, the surrogate rhay, in his discretion, irrespéctive of any statutory authority, require'notice of the application to be served upon the administrator.</p> <p>A peremptory writ of mandamus, requiring the issuing of an execution by the surrogate, will not he granted unless his refusal to do so is clearly and unmistakably established.</p> <p>The action of the surrogate in refusing to issue the execution without notice to the administrator cannot be reviewed by mandamus,</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Monroe Trial Term and entered • in the office of the clerk of the county of Monroe on the 25th day of September, 1899, denying the defendant’s motion for a new trial made upon the minutes, a verdict of the jury having been rendered in favor of the plaintiff for $866.25.

Appeal by the defendants, Robert B. Adam and others, constituting the grade crossing commissioners of the city of Buffalo, from . a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the'clerk of the county of Erie on the 16th day of April, 1901, upon the decision of the court rendered after a trial at the Erie-Special Term.

<p>Appeal by the plaintiff, John Clemens, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 9th day of July, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining a demurrer to the complaint.</p>

Appeal by the defendant, Gilbert Milks, from a judgment of the Oounty Court of Cattaraugus county in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 14th day of June, 1901, upon the verdict of a jury convicting him of the crime of arson in the third degree, and also from an order entered in said clerk’s office on the 14th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, the Buffalo Car Manufacturing Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of July, 1901, upon the decision of the court rendered after a trial at the Erie Special Term.

<p>Insurance—application therefor — whether a question as to other insurance covered insurance in an incorporated benevolent association — when a question of fact.</p> <p>An application for a policy of life insurance contained the following questions and answers:</p> <p>“A. Have you ever applied to any company, order or association for insurance on your life without receiving exact kind and amount of-insurance applied for? (If yes, give particulars.) No.</p> <p>“ B. State name of company, order or association which has declined to issue a policy on your life of postponed you. None.</p> <p>“C. State whether any company had refused to restore a lapsed policy on your life. (If yes, give particulars.) None.</p> <p>“ D. Is any application or negotiation for other insurance on your life now pending or contemplated? (If yes,, give particulars.) No.</p> <p>“E. State amount of insurance you now carry on your life, with name of company or association by whom granted and the year of issue. (Enumerate each.) None.</p> <p>“ F.- If insured in this company, in ordinary, industrial or intermediate, give policy numbers. -None.</p> <p>“ Is there any other insurance in force on your life? None.”</p> <p>At the time of the insured’s death he was a member of an incorporated benevolent association whose certificate of incorporation provided that the “ object of its creation is to accumulate by initiation fees, quarterly dues, fines and interest, a fund out of which to assist each other (the members) in time of sickness and death as prescribed by the Constitution and By-laws of the same.” The constitution provided: “At the death of a member in good standing for six months the widow or legal heirs of the deceased shall receive the sum of §150; at the death of the wife of a member in good standing for six months he shall receive from the treasury §50.” The association issued no certificates of membership and the constitution designated the person to whom the sum, payable upon the death of a member or his wife, should be paid and did not confer any power Upon the member to name any other beneficiary.</p> <p>.Held, that an. examination of question E, contained in. the application, in connection with the questions which preceded it, indicated an insurance -in a company or association which issued some form of certificate;</p> <p>That men’s minds might reasonably -differ as to whether of not the last question, taken in connection with the others, did not mean some form of other insurance evidenced by a policy or certificate, and also upon the issue whether such question fairly called upon the insured to state -his connection with the benefit association above alluded to;</p> <p>That as to these matters a question of fact was presented.</p> <p>Semble, that membership in an association, whose constitution and by-laws provided simply for the payment of certain funeral expenses, did not constitute an insurance within the meaning of the questions contained in the application.</p>

<p>Tax on rent reserved under a perpetual lease — what covenant by the tenant to pay all taxes, etc., does not require him to pay the tax on the rent — when the lessoi' is estopped to claim that the statute imposing the tax is unconstitutional.</p> <p>Taxes upon rents reserved in a perpetual lease assessed against the lessor pursuant to section 8 of the Tax Law (Laws of 1896, chap. 908) re-enacting chapter 837 of the Laws of 1846, are not payable by the lessee under a covenant binding him to pay “all taxes, charges and assessments, ordinary and extraordinary, which shall be taxed, charged, imposed or assessed on the hereby demised premises and privileges, or any part thereof, or on the said parties of the first part (the lessors), their heirs and assigns, in respect thereof.”</p> <p>The fact that the lease was executed about a year after the enactment of chapter 837 of the Laws of 1846, does not establish that the lessor had these taxes in mind when he executed the lease and intended to relieve himself from the payment of such taxes by the covenant contained therein.</p> <p>Assuming, without deciding, that the taxation of such rents is unconstitutional, that fact will not prevent the lessee from setting off against the rents reserved under the lease, moneys involuntarily paid by it for taxes assessed upon the rents, which the lessor had refused to pay, where it appears that the lecsor did not assert his claim that the assessments were invalid until after the payments had been made.</p>

Appeal by the defendant, John F. Eilenberg, from a judgment of the County Court of Yates county in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 22d day of June, 1901, upon the-verdict.of' a jury, and also from an order entered in said clerk’s office on the 15th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — injury to-a car inspector who, outside of his duty as such, assists in uncoupling cars and is crushed between them—effect of his disregard of a rule requiring him to station a man by the side of cars while he is between them—act of a fellow-sermnt.</p> <p>A car inspector in the employ of a railroad company who, while voluntarily engaged in assisting the conductor of a shifting engine and not in the course of his duties as car inspector, goes between two cars for the purpose of uncoupling them, assumes the risk incident thereto, and if he is killed in consequence of the shifting engine backing other cars against those which he is endeavoring to uncouple, the railroad company is not liable for the damages resulting from his death, especially where it appears that when he went between the cars he did not station a man by the side thereof as required by a rule promulgated by the railroad company for the protection of car inspectors and which had been communicated to the deceased.</p> <p>If the engineer of the shifting engine was negligent in pushing cars against those which the deceased was endeavoring to uncouple, it was the negligent act of a fellow servant of the deceased and not of the master.</p>

<p>Appeal by the defendant, The Empire Portland Cement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 26th day of April, 1901, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 24tli day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence — injury from a collision at a grade crossing — negligence of a driver, when not imputed to his companion — §5,000 verdict, when not excessive — the credibility of witnesses is for the jury—proof of the speed of a train.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff's intestate who, while riding in a buggy at the invitation of one Horan, was killed in a collision with one of the defendant’s north-bound trains at a grade crossing in the village of Fulton, at about eight o’clock on a dark August evening, while the electric street lights were not burning, it appeared that, as they approached the crossing, the. occupants of the buggy could not see a train approaching from the south until they reached a point about thirty feet westerly from the crossing,- at which point they could see the engine for a distance of one hundred and fifty-nine feet; that at twenty-five feet from the crossing the engine of an approaching train could be seen for a distance of twelve hundred and seventy -five feet. It appeared that the intestate and his companion looked both ways when they were about twenty-five or thirty feet from the crossing, and that when they again looked south the train was upon them.</p> <p>There was evidence tending to show that the train was traveling at a speed of twenty-five miles an hour, and it was conceded that the locomotive whistle was not blown and that the automatic signal at the crossing was out of order. The evidence was conflicting as to whether the bell on the engine was rung or not. It further appeared that a large crowd of people had assembled at the crossing and that there was a great deal of noise and commotion there.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;</p> <p>That the questions, whether the defendant was negligent and whether the intestate exercised that degree of care and caution that a prudent man would have exercised under similar circumstances, were properly submitted to the jury;</p> <p>That the negligence of the intestate’s companion, who was driving, could not be imputed to him, but that the mere fact that the intestate had no control over the horse did not relieve him from the duty of looking and listening for himself and doing all that a prudent man should do under similar circumstances;</p> <p>That, as it appeared that the deceased was forty eight years of age at the time of his . death; that he had accumulated §5,000, and was earning from §1,000 to $4,000 a year, and that his family consisted of a wife who had' since died and an unmarried daughter, twenty-one years of age, a verdict of $5,000 should not he set aside as excessive;</p> <p>That the credibility of the plaintiff’s witnesses presented a. question for the jury and not for the court;</p> <p>That it was competent to prove the speed of the train by the the testimony of persons of ordinary experience.</p> <p>McLennan and Williams, JJ., dissented.</p>

Motion by the plaintiff, The City Trust, Safe Deposit and Surety Company of Philadelphia, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court at the Monroe Trial Term.

Appeal by the claimants, Adrian M. Hekking and others, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Herkimer on the 2d day of May, 1901, sustaining the exceptions filed by the receiver to the report of a referee, and disallowing the claims of the appellants.

Appeal by the proponent, Kittie M. Larzelere, from a decree of the Surrogate’s Court of the county of Yates, entered in said Surrogate’s Co„urt on the 28th day of July, 1901, refusing to admit to probate an instrument purporting to be the last will and testament of Herman S. Barnes, deceased.

<p>Appeal by the defendant, William R. Haven, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 1.5th day of January, 1900» upon the report of a referee, and also from so much of an order of the Supreme Court, made at the Erie, Special Term and entered in in the office of the clerk of the county of Erie on the Ytli day of February, 1901, as denies the said defendant’s motion to set aside and vacate the said judgment.</p>

<p>Appeal "by the defendant, The Board of Education of Union Free School District No. 2, Towns of Manheim and Oppenheim, Counties of Herkimer and Fulton, State of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 26th day of September, 1901, upon the decision of the court rendered after a trial at the Herkimer Trial Term, a jury having been waived.</p>

Appeal by the relator, the Niagara Falls Hydraulic Power and. Manufacturing Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 6th day of May, 1901, quashing a. writ of certiorari. theretofore issued to review the assessment of relator’s property and denying.the prayer of the relator’s petition.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of November, 1901, upon the verdict of a jury for $1,500, and also from an order entered in- said clerk’s office on the 22d day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Joel Gr. Curtis and Alfred D. Curtis, partners, trading as J. Gr. Curtis & Sons, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of December, 1901, directing the defendant Joel Gr. Curtis to deliver to the plaintiffs’ attorneys a sworn copy of a certain writing or agreement between the defendants.

Appeal by the defendant, Reuben E. Boland, from an order of the Supreme Court, made at the New York Special Term and entered in' the office of the clerk of the county of New York on the 26th day of December, 1901, denying the defendant’s motion to vacate an order of arrest theretofore granted in the action.

Appeal by the defendant, the Automatic Fire Alarm Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 28th day of June, 1901, upon the decision of the court, rendered after a trial at the Hew York Special Term, decreeing that the defendant maintain the electric alarm connection between the defendant’s central office and the building Ho. 26 Beekman street, both in the city of Hew York, as…

<p>Appeal by the defendants, Amos L. Prescott and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 21st day of October, 1901, upon the report of a referee.</p>

Appeal by Henry B. Wesselman, temporary administrator, etc., of Charlotte Miller, deceased, from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 26th day of December, 1901, referring the matter to .a referee to take proof as to the claim of the petitioner and to report the same to the court with his opinion thereon.

Appeal by the plaintiff, Henry A. Wolff, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 26th day of July, 1901, upon the report of a referee.

Appeal, by the plaintiff, Minnie G. Glean, by George Dodson, her guardian ad litem, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of -the county of New York on the 29th day of January, 1902, denying the plaintiff’s motion for leave to serve an amended ■ complaint.

Appeals by Euphemia A. Hawes, as executrix, etc'., of Granville P. Hawes, deceased, and others, from portions of an order of the Supreme-Court, made at the New York Special Term and entered in the office of the clerk of thé county of New York on the 11th ■ day of December, 1901, upon a motion to confirm the second, report of the referee appointed in the matter of the final accounting of the receive!’of the American Loan and Trust Company.

. Appeal by the plaintiff, the Shoe Lasting Machine Company.of New York,- from a judgment of the Supreme Court in favor of the-defendant, entered in the office of the clerk of the county' of New York on the 7th day of February, 1901, upon the verdict of a jury,, and also from an order entered in said clerk’s office on the 8th day of March, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Arthur Miller, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York in favor of the plaintiff, entered on the 19th day of July, 1901, upon the verdict of a. jury convicting the defendant of the crime of abduction.

Appeal by the. plaintiff, Morris Orlick, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office -of the clerk of .the county of New York on the 4th day of January, 1902, upon the decision of the court rendered after a trial at the New York Special Term, overruling the plaintiffs’ demurrer to the “ third and further defense” contained in the answer.

<p>Appeal by the defendants, Sidney Smith Whittlesey and others; from the following portions of a judgment of the Supreme Court in favor of the plaintiffs and the defendant Alletta Nathalie Bailey, entered in the office of the clerk' of the county of New York on the 17th day of December, 1900, upon the report of a referee:</p> <p>First. From the summary statement of said judgment.</p> <p>Second. From so much and such part of said judgment as decides that none of the legacies under the 12th clause of the will of the testator, excepting in regard to the partial payment" of the legacy to Catherine Whittlesey by transfer of the $6,000 mortgage were payable until the sale of the Fordham Heights property, and the receipt from such sale of funds applicable to the payment of such legacies; and from so much and such part of said judgment as decides that the said legacies only became payable at the date of the death of Eliza Meier. Bailey and only began to draw interest from that date.</p> <p>Third. From so much and such part of said judgment as decides that the provisions regarding the $10,000 mortgage mentioned in the legacy to Catherine Whittlesey in the 12th clause of the will of testator did not establish a specific or demonstrative legacy of the same, and from so much and such part of said judgment as decides that the purchase of said mortgage could only be made with funds raised in the samé manner and at the same time as those from which payment of the other legacies in said clause was to be made, and that the provision in that regard was subject to all the limitations'attached to such other legaciesv and from so much and such part as decides that the amount of the legacy paid by transfer .of said mortgage was not payable until the death of Eliza Meier</p> <p>Fourth. From so much and such part of said judgment as decides that the provisions in regard to the $6,000 mortgage contained in said legacy to Catherine Whittlesey did not establish a specific gift of the same, but simply indicated and set apart ■ the mortgage as a fund from which $6,000 of said legacy was primarily to be paid by transfer to the legatee, and from so much and such part as decides that the time for this transfer was at the expiration of one year after the issuance of letters testamentary, and from so much and such part as decides that the appellants are only entitled to receive the income earned and paid to the executors upon said mortgage after that date.</p> <p>Fifth.. From so much and such part of said judgment as decides and states the account of the amount due to these appellants upon said legacy, which account is stated as follows :</p> <p>“ Amount of legacy................. $20,000 00</p> <p>“ Amount of interest due on $6,000</p> <p>mortgage...................... 2,184 00</p> <p>$22,184 00</p> <p>“ Amount paid by transfer of $10,000</p> <p>mortgage.............'.......... $13,450 00</p> <p>“ Amount paid by transfer of $6,000 mortgage.. ..................... 6,000 00</p> <p>“ Balance remaining due</p> <p>$19,450 00</p> <p>$2,134 00”</p> <p>Sixth. From so much and such part of said judgment as decides that only the sum of $2,134, with, interest from. May 23, 1900, is due these appellants upon said legacy.</p> <p>. Seventh. From so much and such part of said judgment as decides that by the transfer of the said '$10,000 mortgage the sum of $13,450 was paid to appellants on account of said legacy.</p> <p>The action was brought by executors and trustees of the will of Nathaniel P. Bailey, who died October 12,1891, for the construction thereof, and a determination of the rights and interests of the beneficiaries.</p> <p>The testator left surviving him as heirs at law and next óf kin his widow, Eliza M. Bailey, who subsequently died May 23, 1900, and a son, James M. Bailey, who died February 27, 1897, leaving a widow and a daughter. By his will, which was dated January 24, 1891, and was admitted to probate December 31, 1891, letters testamentary being issued January 8, 1892, the testator disposed of his estate, which amounted to over $800,000, both by specific bequests and by the creation of trusts. The sum of $325,669.77 was thus given in the first eleven paragraphs. The more important of these legacies were those named in the 3d paragraph, directing the executors to set aside $100,000 for the widow, and in the 5th, creating a trust of $150,000 for the benefit of his son with remainder over for the benefit of the son’s wife and daughter.</p> <p>The 12th clause, wherein legacies amounting to $221,000 were given, among which was one of $20,000 to the testator’s niece, Catherine Whittlesey, the mother of the appellants, provided: “ As the largest part of my property consists of lands at Fordham Heights * * * and said lands at the time of my death may yet be unsold and, therefore, unproductive of income, and my wife may desire to occupy the property or some part thereof during the term of my son’s and granddaughter’s lives — upon whose lives I have limited her enjoyment of mine estate, or any other good reasons may then exist why the same should not all be forthwith sold, and as my other property will be sufficient to pay the taxes on said Fordham lands and most, if not all, the other charges atid legacies .hereinbefore provided in the first to the eleventh inclusive sections of this my will, and as the following legacies cannot be paid unléss said Fordham lands or some portions thereof are sold and a part of the avails thereof used for that purpose, I hereby direct my executors to pay the following legacies out of the body of my estate as soon as. it can be done without embarrassment to my wife’s comfort and an Undue sacrifice of- said lands, but at any time within the lives of my son and granddaughter or the survivor of them should my wife, if she then be living, consent in writing thereto; but should any two of the three beneficiaries who are to receive the income of the trust estate created under the succeeding sections of my will die, then', I direct such sale to be forthwith made whether my said wife be living or not and after the provisions of the foregoing and sue-;, ceeding sections .of this iny will have 'been duly complied with, then I. hereby give and bequeath the folio wing, sums to the following persons hereby charging the estate of my said son and granddaughter and the residuary estate or estates hereby created with the payment of the following legacies.. Subject, therefore, to the above restrictions, I hereby give and bequeath unto the following persons the following sums, viz.: * * * To my niece Catherine Whittlesey, Twenty thousand dollars ($20,000) payable as follows: Ten thousand 00/100 dollars ($10,000) thereof by transfer to herself personally in her own right of. a mortgage for that amount made by her and her husband in favor of my wife' and in case said mortgage shall not belong to me at my decease then my executors are hereby directed to purchase the same in order to comply with this bequest or otherwise to pay Said legatee that amount in money; six thousand dollars ($6,000) thereof to be paid by transfer to her in her own right by executors of a mortgage made by her and her husband in my favor for that amount and the balance of said legacy, the sum of four thousand dollars ($4, 000) in money.”</p> <p>The trust estate referred to as “ created under the succeeding sections.” for the benefit of three beneficiaries, is stated in the; l-4th clause which disposes of all the rest and remainder of the-testator’s real and personal property.</p> <p>■ The Fordham Heights property was occupied and held by the widow down to the time of her death, May 23, 1900. Meanwhile,, on February 12, 1895, Catherine Whittlesey died intestate leaving as her heirs at law the appellants herein. The $10,000 mortgage was not owned by testator at his death, but belonged to his wife, and interest was paid on it by Mrs. Whittlesey up to March 1,1894. It was purchased by the executors from Mrs. Bailey for $10,000 on December 1,1899, the unpaid interest at that time amounting to $3,450. Mrs. Whittlesey paid as interest oh the $6,000 mortgage after the. death of the testator $2,631, of which $447 was for interest. for the year after letters testamentary were granted. ■ Both mortgages were assigned to these appellants on December 1, 1899. '</p> <p>The referee in his report determined with regard to the sum which the appellants were entitled to receive from the executors in' payment of what remained due under the legacy, that the legatees were to be charged with $3,450 interest due and unpaid on the $10,000 mortgage when it was purchased .from the widow and that they were not to receive back the interest which had been paid thereon from the time of the testator’s death to March 1, 1894; that they were to be charged with interest on the $6,000 for the year following the death of the testator but were to be credited with $2,184 earned and collected on that mortgage after January 8,1893. From the judgment entered on the report the legatees referred to appeal, claiming that the referee erred (1) in charging them with interest of $3,450 unpaid when' the $10,000 was assigned ; (2) in not crediting them with $1,500 paid thereon prior to March 1,1894, and (3) in charging them with $447 interest on the $6,000 mortgage for the year following the granting of letters testamentary.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of January, 1901, upon the verdict of a jury for $10,000,- and also from an order entered in said clerk’s office on the 22d day of January, 1901, denying the defendant’s motion for á new trial made -upon the minutes.