Volume 71 — New York Appellate Division Reports

Appeal by Patrick Stapleton and by Arthur J. O’Leary, one of the executors named in the will of Eliza Stapleton, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 5th day of March, 1900, as adjudges that the codicil to the last will and testament of Eliza Stapleton, deceased, bearing date March. 18, 1899, is null and void, and denies probate thereto.

Appeal by the defendant, Leopold Samuels, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of November, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 16th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Leon T. Walter, from an interlocutory judgment, of the Supreme Court in. favor of the defendants. Henry Tomkins- and others, entered in the office of the clerk of the county of New York on the 2d day of .July, 1900, sustaining said defendants’ demurrer to the complaint. The complaint averred:. “I. That one John Walter, late of the.

<p>Testimony of a physician as to communications from his patient — a waiver to he effective must he on the “ trial or examination" — testimony, improperly admitted, tending to show that a party testified falsely — when it requires a reversal of. a judgment.</p> <p>Evidence given upon the trial of an action to recover damages for personal injuries, to the effect that after sustaining the alleged injuries, the plaintiff went to a physician who found him to be suffering from a rare disease, and that the plaintiff consented to being exhibited oefore a society of physicians at a public meeting and to the publication by the physician of an account of his disease in a medical journal, does not entitle the physician to testify, over the plaintiff’s objection, to communications made to him by the plaintiff, relating to the history of the disease, as, under the provisions of section 836 of the Code of' Civil Procedure, a waiver, in order to be effective, must be on the “trial or examination.”</p> <p>Where it appears that the communications testified to by the physician tended to show that the plaintiff had testified falsely as to the extent of the injuries resulting from the accident, the fact that the jury found a general verdict in favor of the defendant and, inferentiallv, that the defendant was not responsible for the plaintiff’s injuries, does not establish that the admission of the incompetent testimony of the physician was harmless, as if the jury had believed that the plaintiff testified falsely concerning the extent of his injuries, they were at liberty to disregard his entire evidence.</p> <p>-Patterson, J.,. dissented.</p>

Appeal by the defendant, John Leonard, 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 June, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Henry John Pollard, from an order of the Supreme Court, made at New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of February, 1902, denying his motion to set aside the service of the summons in the action upon him.

Appeal by the defendant, William A. Garrigues, 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 15th day of October, 1901, denying the defendant’s motion to compel the plaintiff to serve a reply to new matter set up in the answer. The action was originally brought against William M. Levering and William A. Garrigues, copartners composing the firm of Levering & Garrigues.

<p>■ Appeal by the defendant, Leonard Hangen, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of May, 1901, upon the verdict of a jury, and also from an order bearing date the 21st day of May, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The International 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 Orange on the 12th day of April, 1901, upon the verdict of a jury for $11,000, and also from an order entered in said clerk’s office on the. 15th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Contract to do city worlc — what provision contemplates, in case of a contractor's default, the completion by the city of a particular section of the worlc, and not the abrogation of the whole contract — effect of a clause imposing a penalty for delay — right to terminate the contract for bad worlc.</p> <p>A contract for the grading, regulating and macadamizing of a driveway in the former city of Brooklyn provided that the contractors “ shall not disturb more than 1,000 lineal feet of the roadway at any one time, and shall complete the 1,000 feet to the satisfaction of the Commissioner of the Department of Parks before beginning an additional 1,000 feet, and it is agreed that if the work upon any particular 1,000 feet is not performed to the satisfaction of the Commissioner of Parks, then the terms of this agreement shall be considered to have been violated and the contract broken, and the said Commissioner of the. Department of Parks is hereby authorized to order in writing the discontinuance of the work by the parties of the second part upon three days’ notice and to employ such other contractor as he may’elect to complete the work at the expense of the parties of the second part, out of the balance remaining to the credit of this contract.”</p> <p>The contract further provided, “ the work must be completed within four months of the date of written notice given by the Commissioner to begin work, and each 1,000 feet must be completed within one-tenth of the total number of working days in the four months, under a penalty of fifty (50) dollars per day for every day in excess of the time stipulated.!’</p> <p>Alter the contractors had consumed' “ over one-tenth of the total number of working days in the four months ” upon the first 1,000 feet, and before that 1,000 feet had been completed, the city notified the contractors to discontinue all work. It thereafter prevented the contractors from doing any further work under the contract and did not attempt to complete the work itself.</p> <p>Held, that the clause of the contract first quoted did not justify the course pursued by the city;</p> <p>That such clause did not contemplate an entire abrogation of the contract, but the completion by the city of the work on the particular 1,000 feet as to which the delay occurred;</p> <p>That the fact that the city imposed a penalty upon the contractors for a failure to complete their work within four months was inconsistent with the right of the city to terminate the contract in case the contractors did not prosecute the work with the rapidity required;</p> <p>That it was bad work rather than delayed work which authorized the commissioner to terminate the contract.</p>

<p>Appeal by the plaintiff, Jasper R. Rand; from a final judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of October, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint.</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 March, 1901, upon the verdict of a jury for $22,000, which was subsequently reduced to $17,000, and also from -an order entered in said clerk’s office on the 12th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The United States Fidelity and Guaranty Company, 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 14th day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

<p>Appeal by the plaintiff, William J. McGirr, 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 1-Oth day of June,. 1901, upon the verdict of a jury for six cents damages, rendered by direction of the court, and awarding the defendant judgment for costs, and also from an order entered in said clerk’s office on the 14th day of August, 1901, denying the plaintiff’s motion for a new trial made upon the minutes. ,</p>

<p>Appeal by' the defendant, Helen Louisa Phelps Stokes, from so-much of a judgment of the Supreme Oourt in favor of the plaintiffs and certain of the defendant's, entered in the office of the clerk of the county of Hew York on the 7th day of June, 1899, upon, the report of a referee, as provides :</p> <p>“ Fourth. That the defendant Helen L. Phelps Stokes is not entitled to receive any of the increase or .gain over inventory value or cost price realized by the plaintiffs on the sale of any -stocks or securities belonging to said testator in his lifetime, or acquired by the executors of, or trustees under his will, but that all of said gains belong, and have been properly credited by the plaintiffs, to-the principal of said residuary trust estate.</p> <p>“ Fifth. That the defendant Helen L. Phelps Stokes is not entitled to receive any increase or gain over inventory value of cost :price that m'ay hereafter be realized by the plaintiffs on -the salé of any stocks or securities now belonging to said residuary trust estate.; ”■ and also from so much of the said judgment as overrules the several, exceptions filed by her to the account of the said trustees, and from so much of the judgment as confirms and ratifies the - said account in respect of, and only in respect of, the items and matters referred to and specified in her exceptions to the said account so overruled, and she appeals from no other part or portion of the said judgment.</p>

Appeal by the defendants, Henry H. Rogers and another, 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 oh the 11th day of February, 1902, denying the defendants’ motion to require the plaintiff to state, separately, several causes of action claimed to have been set forth in the complaint, and also to require the plaintiff to make his complaint more definite and certain.

Appeal by Edward J. Newell, an attorney at law, 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 November, 1901, granting an application made by John H. Neville to compel Edward J. Newell, his attorney, to pay over to him a certain sum of money collected for him by said attorney.

Appeal by the plaintiff, Burtis M. Keeney, from an interlocutory judgment oflhe Supreme Court in favor of the defendant Sophia Y. Morse, 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 sustaining said defendant’s demurrer to the amended complaint upon the ground that it does not state facts sufficient to constitute a cause of action, and also from a…

Appeal by the plaintiff, James Duffy, from a judgment of the Supreme Court in favor of the defendants Shipway, entered in the office of the clerk of the county of New York on the 10th day of December, 1900, upon the dismissal of the complaint as to such defendants, by direction of the court, after a trial'at the New York Trial Term, and also from an order entered in said clerk’s office on the 21th day of November, 1900, denying the plaintiff’s motion for a new trial made…

Appeal by the defendant, Catherine McDonald, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county. of New Tork on the 26th day of December, 1901, upon the decision of tlie ■court, rendered after a trial at the New Tork Special Term, as ■adjudges that “ the plaintiff, Catherine McDonald, and the defendant, Catherine McDonald, are entitled to and hold as tenants in common each the one…

Appeal by the defendant, George Bissert, 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 12th day of August, 1901, upon the verdict of a jury convicting the defendant of the crime of bribery, with notice of an intention to bring up for review upon such appeal the following intermediate orders and proceedings, to wit: “ The order and decision denying the motion of the defendant…

<p>Action by the owner of a meant lot to compel the removal of the fronts of adjacent houses projecting into the street, and for damages —she is not estopped by her failure to object to the erection of the houses — a dismissal for want of proof of damages shouldbe without prejudice to another suit — relative damage to the respective owners.</p> <p>Where the owner of a number of lots abutting upon a public highway erects thereon dwelling houses, the fronts of which illegally extend three or four feet beyond the building line into the street, the fact that the owner of a vacant lot adjoining such dwellings raises no objection thereto while they are being erected, does not estop her from invoking the power of a court of equity to compel the removal of the illegal obstruction, unless it appears that at the time the dwellings were being erected the owner of the vacant lot knew that her rights were being interfered with, and that by her failure to object the owner of the dwellings was misled to his prejudice.</p> <p>Where the complaint in an action brought by the owner of the vacant lot to compel the removal of the unlawful obstruction together with damages is dismissed oh the ground that it does not appear that she has sustained any special damages by reason of the illegal obstruction of the highway, the dismissal of the complaint should be without prejudice to the right of the plaintiff, or those claiming under her, to bring a similar action against the defendant, or those claiming under him, whenever the vacant lot shall be built upon.</p> <p>The fact that the damages sustained by the owner of the vacant lot will be trivial in comparison with the damages suffered by the owner of the dwellings if the latter is compelled to cut off the fronts of the dwellings, does not. affect the right of the owner of the vacant lot to equitable relief.</p> <p>Yan Brunt, P.' J., dissented. .</p>

Appeal by the defendant, Jacques Pacheteau, 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 11th day of November, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, foreclosing a mechanic’s lien.

<p> Mutual benefit society—a death benefit, payable by the by-laws to the “legal heirs,” may be sued for by the widow as administratrix. </p> <p>Where .the articles of incorporation of a mutual benefit society state that its object is to provide a fund for the benefit of the widows and orphans of deceased members and the by-laws of the society provide that the death benefit shall be paid to the “legal heirs” of the deceased member, the widow of a member of the society who dies intestate, leaving surviving him the widow and children-, may maintain, in her capacity as administratrix of her husband’s estate, an action to recover such benefit.</p> <p>Yan Brunt, P, J., and Laughlin, J., dissented.</p>

<p> Negligence—injury from a, piece of iron flying from a pipe being out upon the street—act of remaining upon the street after notice that it was dangerous to do so—correct charge on the subject. ' </p> <p>In an action to recover damages for personal injuries sustained by the plaintiff while standing upon a public street watching the servants of the defendant, a . contracting company, cut an iron gas pipe, by means of a hammer and a diamond point, in consequence of his being struck by a piece of iron which, flew from the pipe, in which action evidence is given tending to show that the plaintiff had been warned that the place in which he was standing was. dangerous and that he ought to go away, a charge that “ there was no legal right in the defendant to insist upon any pedestrian moving away. Yet, if there was a risk of imminent danger and the pedestrian’s attention was called, to it, and'he refused to take such reasonable precautions for his own safety as .a reasonably prudent man ought to take under the circumstances, then he-would be guilty of contributory negligence,” is a correct exposition of the law upon the subject.</p> <p>A request to charge that “ if the jury find that the plaintiff was warned, that he' was in a dangerous place and failed to move from that place, and was injured in consequence, tnat he was guilty of contributory negligence and cannot recover,” does not contain a correct statement of the law, as the mere fact that some one-told the plaintiff that he was in a dangerous place, in and Of itself, did not render him guilty of contributory négligence because he failed to act upon the information given.</p> <p>Semble, that if the fact that it was a dangerous place was apparent to the plaintiff, or the reason why it was dangerous was communicated to him and he then refused to move, he would be guilty of such negligence as would prevent a recovery.</p> <p>Van Brunt, P. J., and Laughlin, J. dissented.</p>

<p>Negligence — injm'y from the giving way of a chain in front of an elevator opening — when the liability therefor rests upon the owner and not the tenant — statutory obligation to provide guards and gates and trap doors, considered.</p> <p>In an action brought to recover damages for personal injuries it appeared that the defendants Boardman owned a building, at the rear of which a freight elevator was situated. The opening in the elevator shaft on the ground floor was guarded by an iron chain firmly fixed in the wall at one end and at the other end fastened by means of a hook to an iron staple in the opposite wall. A portion of such building was leased to the defendants Kratzenstein & Co. and the remaining portion to one Nusbaum, who was not a party to the action. Kratzenstein & Co. and Nusbaum jointly employed a person to operate the elevator, which was used by Kratzenstein & Co. for the transportation of freight and business callers.</p> <p>On the day of the accident the plaintiff, a traveling salesman, visited the building for the purpose of selling goods to Kratzenstein & Co., and went to the elevator shaft for the purpose of taking the elevator. The elevator not being at the ground floor the plaintiff put his hand upon the chain extending across the front of the shaft and leaned over for the purpose of ascertaining its position. While so doing the chain gave way and the plaintiff fell into the elevator shaft and was seriously injured.</p> <p>The plaintiff testified that the immediate cause of the accident was the pulling out of the iron bolt to which the. chain was hooked, while a witness for the defendant, who examined the chain immediately after the accident, testified that the bolt did not pull out, but that the hook which fastened the chain to the iron bolt was somewhat straightened. The negligence of the defendants was predicated upon their failure to provide a substantial guard or gate as required by section 28 of chapter 275 of the Laws of 1892.</p> <p>Meld, that inasmuch as the other tenant of the building had as much right to use the elevator as Kratzenstein & Co. did, and as the' obligation to repair the elevator was imposed, by the terms of the lease, upon the owners of the building, no obligation rested upon the defendants Kratzenstein & Co. to provide a guard and gate for the elevator, and that the complaint was properly dismissed as to them;</p> <p>That the evidence warranted a finding that the owners of the building had not provided a substantial guard across the elevator- opening, and that it was error for the court to set aside a verdict rendered against them.</p> <p>Semble, that negligence on the part of the defendants could not be predicated upon the failure to comply with the requirements of section 28 of chapter 275 of the Laws of 1892, relative to the maintenance of trap doors in elevator shafts, as that violation of the statute was not the cause of the accident.</p>

Appeal by the defendant, John Most, from a judgment of the Court of Special Sessions of the first division of the city of Mew York in favor of the plaintiff, entered on the 14th day of October, 1901, convicting'the defendant of a misdemeanor under section 675 of the Penal Code.

Appeal by the plaintiff, John Chatfield, 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 December, 1901, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the defendant, Robert Y. S. Samuels, as trustee in bankruptcy of the estate of Pedro Antonio Rasines, bankrupt, 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 lltli day of December, 1901, upon the decision of the court rendered after a trial at the New York Special Term, the parties having waived a jury trial.

Appeal by the defendants, Mary McMahon and others, individually and as executors, etc., of William McMahon, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of January, 1902, directing the, appellants to pay the fees of a referee theretofore appointed in the action and to take up and file his report.

Appeal by the defendants, William Ratienbuehler 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 4th day of February, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 5th day of February, 1902, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendants, Jacob Rubinson 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 4th day of December, 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 4th day of December, 1901, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, David Cantor, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 19th day of April, 1901, upon the verdict of a jury convicting the defendant of the crime of manslaughter in the first degree, and also from an order denying the defendant’s motion for a new trial made upon the minutes, and from an order denying his motion in arrest of judgment.

<p>Appeal by the plaintiff, Louis Lese, 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 6th day of December, 1901, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the plaintiff’s complaint and directing him to perform the agreement set forth therein and to accept a deed of the premises therein described.</p> <p>This action is brought for the purpose of recovering a deposit made by the plaintiff with the defendants upon the execution of a contract of the sale by the defendants to the plaintiff of the premises Ho. 117 Lewis street, in the city of Hew York, together with counsel fees and disbursements incurred by the plaintiff upon the examination of the title to said premises, upon the ground that the title to the same, tendered by the defendants to the plaintiff, was defective and unmarketable. Upon the trial all the material facts were admitted by a stipulation between the parties, from which stipulation the following appears: William H. Miller died' on the 23d day of March, 1870, seized of the premises in question and leaving a last will and testament, which was duly admitted to probate by the surrogate of the county of Hew York. He left him surviving liis widow, Mary Ann Miller, and four children, Orlando A. Miller, Mary A. Bailey, Caroline A. Mandeville (afterwards Caroline A. Adams), Han-iet Yan Ripper and a stepson, William H. White. .</p> <p>Harriet Yan Ripper died intestate on January 3,. 1874, leaving her surviving her husband and an infant son, Thomas Yan Ripper, who died intestate on the 14th day of April, 1875, leaving his father, Thomas Yan Ripper, who has since remarried.-</p> <p>The stepson, William. H. White, or William H. Miller, as he was also called, died intestate, December 3, 1896, leaving him surviving two children, Mary E. Maurer and William H. Miller. The widow above named, Mary Ann Miller, died February 3, 1899.</p> <p>The point in-dispute between the parties is the interest t-haf Harriet Yan Ripper or her issue.took under the will of the testator, William H. Miller; the plaintiff claiming that she took a vested remainder which descended to her infant son, and through him, at his death, to his father, Thomas Yan Ripper, and the defendants claiming that whatever interest she or her issue, took under., the will of her father was contingent and ceased absolutely upon the death of herself and her infant son. In his will, William H. Miller devises his residuary estate, real and personal, including the premises in question, as follows:</p> <p>“ III. All the rest, residue and remainder of my estate, real, personal and mixed of whatsoever kind or description and wheresoever situated, I give, devise and bequeath unto my executrix and executor' hereinafter named or the survivor of them m trust: 1. To collect, get in and receive all that part of such estate as may consist of money, stocks, bonds or similar securities, and to convert all of such securities into money. 2. To invest and reinvest the same in their joint names as such executrix and executor in good and substantial securities, consisting of United States bonds or bonds and mortgages on improved real estate in the cities of Hew York and Brooklyn worth at least double the amount of said bonds and mortgages. 3. To collect and receive the rents, issues and profits of the same and of so much real estate as I may be possessed of at my death. 4. To pay over the same, after deducting the necessary expenses for collection, to my beloved wife Mary Ann Miller during the term of her natural life. 5. After the decease of my said wife then to convey, assign, transfer and set over all the rest, residue and remainder of any estate, real, personal and mixed of whatsoever kind and description or wheresoever situated unto my children, including among said children my stepson William H. White (being the son of my wife by a former marriage) in equal proportions, share and share alike (the issue of any of such children who may have died before, the death of my said wife, taking per stirpes the share that their deceased parent would have taken if living), to have and to hold the same to their own proper use, benefit and behoof forever.”</p>

Appeal by the plaintiff, Isaac Jacobs, from an order of the¡ Appellate Term of the Supreme Court in favor of the defendant, The Third Avenue Railroad Company, entered in the office of the clerk of the county of New York on the 26th day of April, 1901, reversing a judgment of the General Term óf the City Court of the city of New York in favor of the plaintiff, entered on the 23d day of January, 1901, upon an order entered on the 21st day of January, 1901, affirming a judgment…

Appeal by the defendant, Gustavus A. Goldsmith, 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 29th day of August, 1901, upon the decision of the court rendered at the New York Special Term after a trial of the issues before a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 22d day of March, 1901,…

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of July, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 13th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Anna Fine, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Few York on the 17th day of October, 1901, upon the decision of the court rendered after a trial at the Few York Special Term dismissing the complaint upon the merits.

Appeal by the defendant, The New York Steam Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of July, 1901, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 5th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Oity of Hew York, from an interlocutory 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 4th day of Hovember, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term overruling the defendant’s demurrer to the complaint. - ■

Appeal by the plaintiff, Winfield S. Strawn, .from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 18th day of December, 1901, pursuant to an order made at the Hew York Trial Term, bearing date the 19th day of Hovember, 1901, and entered in said clerk’s office, granting the defendant’s motion to set aside a verdict theretofore rendered by direction of the court in favor of the plaintiff and…

<p>Appeal by the plaintiff, Robert A. Craig, suing on his own behalf and on behalf of all other stockholders of the Anglo-American Savings and Loan Association of Yew York, from an interlocutory judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Yew York on the 31st day of January, 1902, upon, the decision of the court, rendered after a trial at the Yew York Special Term, sustaining, demurrers to the complaint interposed by such defendants.</p>

Appeal by the defendant, Josephine Schmid, from an order of the Supreme Court, made at the Hew York Special Term and ■entered in the office of the clerk of the county of Hew York on the 2d day of April,' 1902, authorizing the receiver in the action to loan certain moneys to customers purchasing beer from him as receiver to enable them to take out licenses.

Appeal by the defendant^ Levi C. Weir, as president of the Adams Express Company, from a judgment of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 14th day of August^ 1901, affirming, upon appeal, a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 9th day of January, 1901.

Appeal by the defendant, Solomon W. Johnson, as.president of, the American News Company, from an order of the. Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1902, denying the defendant’s motion to vacate an order theretofore entered in the action which granted the plaintiff’s motion for a preference.

<p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure.</p> <p>This case comes before this court upon an agreed statement of facts and submission of controversy, in accordance with the provisions of section 1279 of the Code of Civil Procedure. The question submitted is, as to the proper disposition of a fund arising from the taking of certain lands of the defendant by the city of Sew York under condemnation proceedings.</p> <p>The defendant is incorporated under. the general law entitled, “ An Act authorizing the incorporation of rural cemetery associations,” being chapter 133 of the Laws of 1847, and the various acts amending the same. The defendant corporation was organized December 31, 1863. By section 7 of the act of 1847, as amended by chapter 108 of the Laws of 1879, it was provided as follows: “ One-half at least of the proceeds of all sales of lots or plats shall be first appropriated to the payment of the purchase money of the lands acquired by the association until - the purchase money shall be paid, and the residue thereof to preserving, improving and embellishing the said cemetery grounds and the avenues or roads leading thereto, and to defraying the incidental expenses of the cemetery establishment; and after the payment of the purchase money and the debts contracted therefor and for surveying and laying out the land, the proceeds of all future sales shall be applied to the improvement, embellishment and preservation of such cemetery and for incidental expenses, and to no other purpose or object unless expressly authorized by law. Associations formed under this act may also agree with the person or persons, from whom cemetery lands shall be purchased, to pay for such lands, as the purchase price thereof, any specified share or portion not exceeding one-half, the proceeds of all sales of lots or plats made from such lands, in which case the share or portion of such proceeds so agreed upon, not exceeding one-half thereof, shall be first appropriated and applied to the payment of the purchase money of the land so acquired and the residue thereof shall be appropriated to preserving, improving and embellishing the said cemetery grounds and the avenues, paths and roads therein' and leading thereto and to defraying the incidental expenses of the cemetery establishment. In all cases where cemetery lands shall be purchased and agreed to be paid for in the manner hereinbefore provided, the prices for lots or plats specified in the by-laws, rules and regulations first adopted by such associations shall not be changed without the written consent of a majority in interest of the persons from whom the cemetery lands were purchased, their heirs, representatives or assigns.”</p> <p>The lands owned by the defendant were conveyed to it by various conveyances, all reading practically alike, and contemporary with each of such conveyances agreements were made between the grantors and the cemetery, all of Which agreements recited the fact that the Cemetery was incorporated under the acts hereinabove set forth, and that the grantors had conveyed, certain lands to the cemetery, specifying- the fractional part of the whole grant to which each grantor was the owner, and that the grantors were to be paid for the sale of the said lands to the cemetery by receiving as the purchase price therefor “ one-half of the proceeds of all sales- of lots or plots made from such lands.” The said contemporaneous agreements further provided that the lands thus conveyed should be subdivided into lots and plots, as required, avenues, walks, paths and alleys laid out therein. to be sold under a schedule of prices therein stated ; and it further provided as follows:</p> <p>“ That the party of the first part (the cemetery) will pay to the parties of the second part (the grantors) for the said lands, as the purchase price thereof, one-half the proceeds of all sales of lots and plots made from the said lands.”</p> <p>The agreement wherein the lands' in question were described stated that the said one-half the proceeds which was to be given to second -parties should be divided into 12,500 equal shares and distributed among the second parties as therein stated. Each party Of the second part was then given a certificate showing the number of shares to which he was entitled, the following, with the blank properly filled, being a copy .thereof:</p> <p>“ This certifies that ........is entitled to ........shares in the Woodlawn Cemetery, transíerrable only on the books of the Cemetery Association upon the surrender of this certificate.”</p> <p>The plaintiff is the rightful holder of one of said certificates, showing the amount of his interest in the premises to be two hundred and ten twelve thousand five hundreths.</p> <p>Prior to 1883 the lands in question became part of the city of Hew York, and in the year 1885 the city commenced a proceeding to acquire lands by condemnation for an extension of ' a street or avenue through the lands in question. The condemnation proceeding resulted in the street being laid out and -an award to the cemetery, which left it, after all expenses were paid, the sum- of $110,354.16. The question here presented is as to the proper distribution of this fund. There are no stockholders in the cemetery association. The only parties in interest are the association on one side and the holders of the certificates, of whom the plaintiff is one, on the other. The plaintiff claims that he is entitled to two hundred and ten twelve thousand five hundredths of the proceeds of the fund in question, or at least one-half of that amount.</p>

.Appeal. hy Bridget Goetz and Eliza J. Goetz, individually and-as executors of and trustees under the last will and testament of Ignace Goetz, deceased, from a decree of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 19 th day of November, 1901, settling the accounts of the executors and trustees under the will of Ignace Goetz, and construing certain provisions of the will of said deceased.

<p>Mortgage foreclosure — right of a receiver to rents where the mortgagor, after giving the mortgage, leased the mortgaged premises and received rent in advance.</p> <p>A person who, after the recording of a mortgage containing a provision in case of default thereunder for the appointment of a receiver of the rents ■ and profits of the mortgaged premises, - takes a lease of the premises for a year at. a time when the mortgagor is not in default under the mortgage and pays .five months’ rent in advance, does so at his peril and subject to the right of the mortgagee, upon the mortgagor making default under the mortgage, to foreclose the same and procure the appointment of a. receiver of the rents and . profits of the mortgaged, premises. • ■ '</p>

Appeal by Theodore C. Wallace and others from ah order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 6th day of January, 1902, directing the issuance of a.commission for the purpose of taking the testimony of witnesses without the State of New York. This is a proceeding brought under article 10, chapter 908 of the Laws of 1896, and the acts amendatory thereof, known as the -Transfer Tax Law.

<p>Appeal by the defendants, Richard K. Fox 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 May, 1901, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 13th day of June, 1901, denying the said defendants’ respective motions for a new trial made upon the minutes.</p>

<p>Stockbroker — ratification of an unauthorized sale of stock — it depends on the customer’s intention — measure of damages — thirty days, a reasonable time within which to repurchase the stock.</p> <p>Where a customer of a firm of stockbrokers informs the stockbrokers that a sale of stock, made for his account, was unauthorized, it cannot be said, as matter of law, that his failure to return an account of the sale subsequently sent to him by the stockbrokers operated as an acquiescence in, or a ratification of, the unauthorized sale.</p> <p>As between the customer and the brokers, the question of ratification depends upon whether there was an intention to approve the unauthorized sale.</p> <p>The measure of the customer’s damages for an unauthorized sale by brokers, of stock of a fluctuating value, is the difference between the price at which the stock was wrongfully sold and the highest price at which like stock was sold in the open market within a reasonable time thereafter.</p> <p>In the present case the court considered that the reasonable time expired thirty days after the unauthorized sale.</p>

<p>Appeal by the defendants, Charles II. Knox and others,-as commissioners, constituting the municipal civil service commissioners of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1902, granting a peremptory writ of mandamus requiring the defendants to certify the relator’s salary at the rate of $2,500 per annum.</p>

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

Appeal by the plaintiff, the Horrocks Desk Company, from an interlocutory 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 27th day of January, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the defendants’ answer.

Appeal by the plaintiff, William H. Collister, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York on the 3d day of March, 1902, denying the plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, The American West Indies Trading Company, from an interlocutory 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 4th day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term.

Appeal by the defendants, Woycsek Panyko and another, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plain tiff, entered in the office of the clerk of said court on the 28th day of February, 1902, convicting the defendants of the crime of abduction, and also from an order, entered in said clerk’s office on the 28th day of February, 1902, denying the defendants’ motion for a new trial made upon the…

Appeal by the defendant, Michael P. O’Connor, as executor, etc., of Luis F.- Sass, deceased, 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. 3d day of February, 1902, upon the verdict of ■a jury, and also from an order entered in said clerk’s office on the 31st day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Robert J. McGay, 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 13th day of March, 1902, denying the said defendant’s motion to amend his answer. _■ •

<p>Appeal by the defendant, Samuel Woolner, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of July, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the first, second, third, fourth and fifth separate and affirmative defenses contained in the amended answer.</p>

Appeal by the defendant, John McKelvey, 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 the county of New York on the 6th day of January, 1902, granting the plaintiff’s motion for a further bill of particulars.

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. Priscilla W. Pike died in August, 1882, leaving a will which provided : “ I give and bequeath to my brother Calvin Pike in trust all my real estate (comprising four lots).

<p>Preference on the trial calendar in New York, Kings, Queens and Eerie counties and, in the seventh judicial district—'an application therefor is addressed to the discretion of the court — when the exercise of such discretion will not be disturbed on appeal — meaning of the word "may."</p> <p>In enacting section 793 of the Code of Civil Procedure, providing that in the counties of New York, Kings, Queens .and Erie and in the seventh judicial district, no cause should be placed upon the calendar as a preferred cause, but that the application for the preference should be made to the court and that “if it shall appear that the cause is entitled to a preference and is intended to be moved for trial at or for the term for which the application is made, the court or justice may direct that it shall be so heard,” it was the intention of the Legislature that the granting of an application for a preference in the counties of New York, Kings, Queens and Erie and in the seventh judicial district, should be discretionary with the court.</p> <p>In the present case, the Appellate Division declined to interfere with the discretion exercised by a judge presiding at a Trial Term in the county of New York, in granting an action of libel, which was first placed upon the calendar for the November term, 1901, a preference over cases which had been upon the general calendar for trial since June, 1899, although the only reason for granting such preference was that actions of libel are preferred by subdivision 11 of section 791 of the Code of Civil Procedure.</p> <p>The word “may” ordinarily contemplates discretionary action, and where there is nothing in the connection or the language or in the sense or policy of the provision in which it is used, to require an unusual interpretation, it will be given its ordinary meaning. It will be construed in a mandatory sense only when such construction is necessary to give effect' to the clear policy and' intention of the Legislature.</p>

Cross-appeals by the plaintiffs, Harry S. Barnes and another, and by the defendant, Thomas W. Cushing, 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 7th day of December, 1898, upon the report of a referee.- This appeal was remitted to the Appellate Division to consider and decide all the questions presented by the cross-appeals from the. judgment of the referee other than the one…

Appeal by the plaintiff, Charles Hofferberth, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 26th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the lltli day of March, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Olga Kethersole, 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 6th day of June 1901, upon the report of a referee.</p>

Appeal by the plaintiffs, John A. Pray and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 27th day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Yew York Trial Term, and also from an order entered in said clerk’s office on the 29th day of January, 1902, denying the plaintiffs’ motion for a. hew trial made upon the minutes.

Appeal by the plaintiff, Apollonia Warth, as executrix, etc., of Albin Warth, 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 15th day of November, 1901, upon the verdict of a jury, and also from an- order bearing date the 7th day of .November, 1901, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal-by the defendant, Frederick Wagner, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 22d day of April, 1901, upon the verdict of a jury convicting the defendant of the crime of arson in the first degree, and also from an order entered in said clerk’s office on the 22d day of April, 1901, denying the defendant’s motion for a new…

Appeal by the defendants, Berry B. Simons and another, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of Hovember, 1901, as overrules said defendants’ exceptions to the report of a referee and confirms said report in all things as to the claim of Josephine O’Heil and directs the chamberlain of the city of Hew York to pay to the said Josephine.

Appeal by the defendants, The City of New York and others, from an order of the Supreme Court, made at the. Kings County, Special Term and entered in the office • of the clerk of the county. of Kings on the- 15th day of January, 1902, denying, the said defendants- motion to change the place of trial'of the action from the county of Kings to the county of New.York.

Appeal by the plaintiff, Samuel A. Bennett, from an order of the City Court of Yonkers, entered in the office of the clerk of said' .court on the 29th day of January, 1902, directing the plaintiff to make his amended reply more definite and certain.

Appeal by the plaintiff, Rosa Serwer, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 28th day of December, 1901, setting aside the verdict of a jury in favor of the plaintiff and granting a new trial of the action.

<p> Articles of copartnership under seal—an oral modification thereof to the extent that it is actually performed is effective. </p> <p>A provision contained in articles of copartnership, executed under seal, that interest should he allowed to each partner upon his contribution to the capital of the firm, may be waived by a subsequent oral agreement between the partners and the performance of such an agreement. Either partner, liowevér, may at any time repudiate the oral agreement, so far as it remains unexecuted, and demand the enforcement of the provision in the articles of copartnership.</p>

Appeal by the defendants, Walter H. Warren and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 24th day of December, 1901, denying the defendants’ motion to compel the plaintiff to make the complaint definite and certain.

<p>Appeal by Norman S. Dike from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of March, 1902, and also from an order entered in said clerk’s office on the 27th day of March, 1902, resettling the first-mentioned order and granting the application of Charles Guden, as sheriff of the county of Kings, to compel the, delivery to him of certain books and papers in a proceeding, instituted under section 2471a of the Code of Civil Procedure.</p>

Appeal by the defendant, Ludwig Braun, from' a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Richmond on the 15th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p> Negligence—a rode at the comer of a country highway, against which a horse, ■frightened by a dog, draws a vehicle, throwing out the occupants^-the town is not liable. </p> <p>Where a country highway turns at right angles "or nearly so, at a point where the beaten track of the highway is eleven feet wide and a rock two feet square is placed at the turning point in close proximity to the fence defining the high, way, for the purpose of preventing collisions with the fence, the town in which the highway is situated is not liable for injuries sustained by the occupants of a vehicle, which, while being driven along the highway on the afternoon of a clear day by a person aware of the presence of the rock, in consequence of the fact that the horse drawing the vehicle became frightened by the barking of a dog, veered to the side of the road, causing the front wheel of the vehicle to strike the rock, which further frightened the horse and caused him to become unmanageable and to throw the occupants out of the vehicle.</p>

Appeal by the defendant, Francis Bannerman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of March, 1901-, upon the verdict of a jury for $600, and also from an order entered in said clerk’s office on the 21th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 20th day of February, 1901, upon the decision of the court rendered after a trial at the Orange Special Term.</p>

<p>Libel—special da/mages must be pleaded — a refusal by particular persons to gire credit constitutes special damage — application of rules as to the sufficiency of objections, where a new trial is granted thereon in the court below.</p> <p>In an action of libel, based upon a publication which is libelous per se, evidence of special damage may be given in enhancement of damages, provided the special damage is pleaded, but not otherwise.</p> <p>Where the complaint in such an action alleges that, “ by means of the said publication plaintiff was injured in his reputation, business and credit in the sum of ten thousand ($10,000) dollars,” and no special damages are pleaded, the plaintiff is not entitled to show that particular persons, firms and corporations had denied the plaintiff credit.</p> <p>The rules relating to the sufficiency of exceptions to evidence taken upon a trial which are enforced by appellate tribunals in support of the judgment rendered by the trial court, do not apply where the trial court grants a new trial upon the ground that it improperly admitted certain evidence.</p>

Appeal.by Wilmer S. Wood and another, as trustees under the last will and testament of Silas Wood, deceased, and others, from an order of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 14th day of May, 1901, affirming an order theretofore entered in said court which confirmed the report of an appraiser appointed in the proceeding and assessed the tax upon that portion of the estate of John L. Rogers, deceased, which passed under a…

Appeal by the defendant, the Port Henry Iron Ore Company, from an order of the. Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 6th day of April, 1901, setting aside a previous direction of the court dismissing the plaintiff’s complaint, and also vacating an order theretofore entered in the action which denied the plaintiff’s motion for a new trial made upon the minutes.

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

<p>Statute of Limitations—penalty for having in one’s possession another person’s milk can—proof that the defendant acquired the possession more than three years before the date of the offense charged — uncorroborated testimony of the defendant may be disregarded.</p> <p>Under subdivision 3 of section 383 of the Code of Civil Procedure, which provides that an action to recover a penalty must be commenced within three years after the cause of action has accrued, an action brought under section 39 of the Domestic Commerce Law (Laws of 1896, chap. 376, as amd. by Laws of 1900, chap. 543), to recover a penalty for the unlawful possession and use of. a milk can by the defendant on a date about two weeks prior to the commencement of the action, is not barred by the Statute of Limitations, because it appears that at the time the action was commenced the defendant had been in. possession and use of the can for more than three years.</p> <p>In such an action the court is not required to accept the defendant’s uncorroborated statement as to the time or manner in which- the can caine into his possession.</p>

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of November, 1901, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 2d day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Statute exempting property, on the payment of one-third of an assessment, from any further levy os' collection of the expense of an improvement—the property may he assessed in the general tax for any deficiency — construction of the phrase “ or otherwise.”</p> <p>•Chapter 522 oí the Laws of 18.99, relating to the assessment for the improvement oí Surf avenue, formerly "in the town of Gravesend and now in the city of Hew York, provides in' section 1 for the cancellation of the assessment upon the payment oí one-third of the original amount thereof and that “ No further proceedings shall ever be had to levy or collect any sum on account of the expense of such improvement against such property by installment or otherwise.”</p> <p>Section 5 thereof provides that any deficiency arising from the non-collection of the assessment shall be met by levying and raising .the same in the general taxes of the city of New York, to be charged and apportioned one-half upon the taxable property in the late town of Gravesend, now the thirty-first ward of the city of New York, borough of Brooklyn, and the other one-half upon the taxable property in the said borough of Brooklyn.</p> <p>Held, that an owner of property subject to the assessment, who, prior to the passage of the act, had paid more than one-third of the sum originally assessed against the property, might properly be assessed thereon for his proportionate share of the deficiency resulting from the non-Collection of the assessment;</p> <p>That the phrase “or otherwise,” used in section 1 of the act, should receive ah ejusdem generis interpretation, and did not preclude the collection of the . deficiency by a general tax.</p>

<p>Election — a ballot with criss-cross pencil marks in the circle is void—ballots having strips with the names of certain candidates torn therefrom counted.</p> <p>A ballot cast at an election, which contains in the circle at the head of one of the voting columns a confused assemblage of criss-cross pencil marks, consisting of three perpendicular lines, three or four horizontal lines crossing the perpendicular lines nearly at right angles and three or four other lines crossing both perpendicular and horizontal lines at obtuse angles, is void under section 110 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 654), which provides that a ballot shall be void if it contains any voting mark other than a “ single cross X mark.”</p> <p>Where two ballots were discovered to be mutilated by having tom from the bottom thereof strips one arid one-half and two inches wide, respectively, containing respectively the names of four and six candidates, and the strips so torn off were found deposited among the stubs, in the box for detached stubs, the court, assuming that the mutilation was due to the inadvertent act of the inspectors, held that the mutilated ballots should be counted.</p> <p>Semble, that the ballots would he void if the mutilation resulted solely from the intentional act of the electors in folding the ballots improperly.</p>

<p>Revocation of a liquor tase certificate — order of reference to report the evidence with the referee’s opinion — when the dismissal of the proceeding, in an order confirming the report, is the act of the court — Hinds and opaque glass in the premises—proof of violation not charged in the petition — amendment thereof.</p> <p>Where, in a proceeding for the revocation of a liquor tax certificate, the court, on the motion of the petitioner’s attorney, makes an order of reference directing the referee to report the evidence to the court together with his opinion thereon, the petitioner cannot successfully urge, upon an appeal from a .final" order dismissing. the proceeding, that ‘the court had no power to direct an expression of opinion by the referee.</p> <p>Where the final order, in addition to confirming the report, denies the prayer of the petitioner and dismisses the proceeding with costs," that provision of the final order which confirms the referee’s report will be disregarded as surplus-age and the dismissal "be held to be the action of the judge at Special Term, independent of the referee’s opinion.</p> <p>The fact that there are blinds on premises in which liquor is sold or that there are panes of opaque glass therein does not constitute a violation of subdivision h of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by chap. 312 of the Laws of 1897), provided outsiders may still have a full view of" the inside of the premises.</p> <p>Under subdivision 2 of section 28 of the Liquor Tax Law, as amended by chapter 367 of the Laws of 1900, which requires the petition for revocation to “state the facts upon which such application is based,” no charges can be considered" Upon the hearing except 'such as are. contained, in the petition as" originally framed or such .as may properly be introduced by. amendment, in the course of"’ the proceedings. ■</p> <p>If, upon the hearing of the application,, evidence is given of violations of the Liquor Tax Law, not alleged in the petition, the remedy of the applicant is-by a motion at Special Term to amend the petition so as to conform to the proof. In the absence of such an amendment, the Appellate Division cannot amend the petition or deem it to be amended for the purpose of reversing an order-dismissing the proceeding.</p>

<p>Appeal by the relator, Joseph E. Smith, from a final order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of May, 1900, denying the relator’s application for a writ of mandamus.</p>

<p>Bailrodd—penalty for exacting excessive fare or refusing to give a transfer — defense that the overcharge was “through inadmertence” — offer of the conductor during the trip to return the excessive fare and accept the transfer.</p> <p>Sections 39 and 104 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676), which impose a penalty of fifty dollars upon a railroad company which exacts an excessive fare or which refuses to give a passenger a transfer from one connecting line to another, are in pari materia and must be construed together. Consequently, where the exaction of an additional fare by a street railroad company constitutes a violation of both sections, the railroad company may avail itself of the defense provided for in section 39, namely, that “ such overcharge was made through inadvertence or mistake, not amounting to gross negligence.”</p> <p>Where a conductor on a street railway car refuses to accept a transfer tendered by a passenger and exacts an additional fare from such passenger, on the erroneous assumption that the passenger did not enter the car at the point where the transfer ticket was issued to him, the fact that before the passenger left the car the conductor offered to accept the transfer ticket and to restore to him the additional fare, requires the inference that the overcharge was mistakenly made under circumstances which did not constitute gross negligence, and constitutes a defense to an action by the passenger against the street railroad company to recover the penalty prescribed in sections 39 and 104 of the Railroad Law.</p>

<p>Appeal by the plaintiff, Harold D. Watson, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn,-in favor of the defendant, entered in said court on the'8th day of August, 1901, upon the decision of the court.'</p>

Appeal by the defendant, William McGarry, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, entered in said court on the 26t.h day of December, 1901, upon the decision of the court for the sum of $512, against the defendant McGarry. The action was brought to recover damages for personal injuries sustained by the plaintiff.

<p> Testimony that entries in a book are in a decedent’s handwriting—it does not relate to a personal transaction between the decedent and the witness. </p> <p>"Vtfhere, upon the trial of an action, brought by the sole heir at law of a decedent and the administrator of his estate, to set aside a deed made by the decedent to the defendant, the court finds that the deed was in fact a mortgage given to secure moneys expended by the defendant for the decedent or upon the mortgaged property, a witness who was the janitress of the mortgaged premises and who testified, without objection, “I gave him such money every day as he needed,” may properly be allowed to testify that a book, showing an entry of money received by the decedent from the witness, was in the handwriting of the decedent, as such testimony does not relate to a personal transaction or conversation between the witness and the decedent.</p>

<p> Filiation bond—proof that an expenditure has been made by the public authorities is not essential to a recovery thereon. </p> <p>In an action upon a filiation bond, the fact that the principal in the bond has failed to make the payments provided for in the order of filiation entitles the plaintiff, under section 883 of the Code of Criminal Procedure, to recover, notwithstanding that the illegitimate child was born at the home of the mother;, that it has died and that the mother has borne all of the incidental expenses and that no expenditures have been made by the public authorities.</p>

Appeal by the defendant, Johanna di Lorenzo, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of May, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term (certain questions having been submitted to the jury at a Trial Term) annulling a marriage on the ground of fraud.

Appeal by the petitioner, Caroline Keeney, as executrix, etc., of John H. Dimon, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 7th day of January, 1902, denying the petitioner’s motion to compel the respondent to turn over certain moneys received by him as attorney.

<p>Appeal by the Board of Foreign Missions of the Presbyterian Church of the United States, and another, from a decree of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 8th day of July, 1901, in a proceeding for the final settlement of the accounts of Charles E. Benton and Miles K. Lewis, as executors, etc., of Emeline Gridley, deceased, establishing an indebtedness on the part of said deceased to the said Miles K. Lewis and Charles E. Benton, respectively.</p>

<p>Damages for a breach of a covenant of seizin — mortgage foreclosed by a mortgagee who, while such, had conveyed the mortgaged, premises by a full covenant deed — purchase by his grantee at the foreclosure sale —burden of proof as to the good faith of the purchaser, necessary to bring him within the exception of section 4At -of the Oode of Qivil Procedure.</p> <p>In 1890 one Smith acquired a mortgage on certain real property owned by one Frederick. Frederick died in 1892,, and thereafter a person who claimed to be his executor attempted to convey the property to Smith by a deed which concededly conveyed no title. In 1894 Smith conveyed the property -to one Schroeder by a full covenant warranty deed. In 1896 Smith brought an action to foreclose the mortgage, making the People of the State of • New York, the alleged executor of Frederick and as unknown defendants, “the widow, heirs at law and devisees of John Frederick, deceased, if any there be,” parties thereto.</p> <p>Pursuant to affidavits showing that Frederick died unmarried, and, as- far as known, without heirs at law of next of kin, and that the alleged executor of Frederick was a non-resident of the State, an order of publication' was made directing the service of the summons by publication upon the unknown defendants and upon Frederick’s alleged-executor. The action resulted in a decree of foreclosure and sale under which Schroeder, who had not been made a party to the action, purchased the -property. In 1897 Schroeder conveyed the premises to one Zarkowski by a warranty deed.</p> <p>In á proceeding instituted by Zarkowski against Schroeder to recover damages for a breach of the covenant of seizin it was</p> <p>Held, that Smith, by foreclosing the mortgage, and Schroeder, by purchasing at the foreclosure sale, had both treated the mortgage as a valid, outstanding obligation, and that for this reason it could not be contended that the mortgage' in Smith’s hands merged in the defective title acquired by him from the alleged executor of Frederick, so that it was extinguished by the subsequent conveyance by Smith to Schroeder;</p> <p>That the fact that, under the provisions of section 445 of the Code of Civil Procedure, Frederick’s representatives, if any, would be entitled to come in and defend the action at any time within seven years after the filing of the judg. ment roll, did not entitle the plaintiff to recover for the reason that it was incumbent upon the plaintiff to establish that the defendant was not a purchaser in good faith within the meaning of the exception contained in such section and that he had not successfully borne that burden.</p> <p>Goodrich, P. J., dissented.</p>

Appeal by the City of Yonkers from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 9th day of July, 1901, refusing to confirm the report of commissioners appointed in the proceeding and sending the same back for revision and correction to new commissioners named in said order.

Appeal by the plaintiffs, August Bringman and another, as administrators, etc., of Frederick Ments, deceased, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in said court on the 3d day of May, 1901, upon the decision of the court dismissing the. complaint upon the merits.

Appeal by the plaintiff, Frederick Dassori, from a judgment of the Municipal'Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in said court on the 29th day o,f November, 1901, dismissing the complaint upon the merits. The action was to recover rent for the month of June, 1901, upon the lease. The pleadings were oral and the answer was a general denial and a former adjudication.

Appeal by the defendant, Elizabeth Stayner, from .an order of the Supreme -Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of December, 1901, striking out said defendant’s answer as sham and directing judgment to be entered in favor of the plaintiffs.

<p>Appeal by the Westchester County Water Works Company, and others, from a final order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of' the coimtyof Westchester on the 1st day of September, 1898, confirming the report of commissioners appointed in a proceeding to acquire certain real property, with notice of an .intention to bring up for review upon such appeal a judgment entered in said clerk’s office on the 3d day of October, 1896, appointing such commissioners.</p>

Appeal by the defendant, John H. O’Rourke, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of December, 1901, denying said defendant’s motion to punish the plaintiff and the defendant, the Hamilton Trust Company, and the president of said company, for contempt of court in disobeying an order theretofore entered in the action, granting a stay of proceedings.

Appeal by the defendant, Edward C. Underhill, 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 4th day of March, 1902, referring the issues in the action to a. referee to hear and determine.

Appeal by the defendant, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of February, 1902, ordering “ that plaintiff’s attorneys have a lien on this cause of action to the extent of 50 per cent of any judgment which may be rendered herein; ” “ that the release pleaded in the supplemental answer herein was obtained in disregard of the rights of…

Appeal by the defendant, Lyman G. Bloomingdale, 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 6th day of March, 1902, denying the defendant’s motion for a bill of particulars and allowing the plaintiff to serve the bill of particulars submitted on the argument.

Appeal by the defendant, The Sun Printing and Publishing’Association, 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 20th day of February, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to the complaint.

Appeal by the relators, Frank K. Kohler 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 3d day of Hay, 1901, Quashing a writ- of certiorari, and also from the judgment for costs entered thereon in said clerk’s office on the 11th day of Hay, 1901.

<p>Transfer of stock “subject to an agreement’' by which a creditor of the corporation guaranteed, that upon the liquidation of the corpoi'ation the stockholders would realize a certain amount per share, but limited its liability to ten dollars per share — the transfer of the stock carries the right to such amount so agreed, to be paid.</p> <p>Ignatius R Grossmann received of Lee, Higginson & Co. 310 shares of the preferred stock of the Northwest General Electric Company, giving in exchange therefor 200 shares of the stock of the General Electric Company and $11,300. Thereafter, the Northwest General Electric Company became involved in difficulties and the General Electric Company, which was a leading creditor of the Northwest General Electric Company, entered into an agreement with the preferred stockholders of the Northwest General Electric Company, providing that “if upon the liquidation of the affairs of the Northwest General Electric Company * * * the .shareholders * * * shall not receive Sixty-five dollars ($65) per share, it (the General Electric -Company) will pay to such preferred shareholders as may assent to this agreement * * * a sum sufficient to give such preferred shareholders Sixty-five dollars ($65) upon each of their •shares, provided, however, that the General Electric Company shall not be required in any event to thus pay to said preferred shareholders more than Ten dollars ($10) per share upon their stock." After this agreement had been made Grossmann made a claim against Lee, Higginson & Co., asserting that the latter ' firm had made false representations as to the stock of the Northwest General Electric Company. The negotiations were conducted, on the part of Grossmann, by his attorney, who wrote to his principal stating that Lee, Higginson & Co. V would not pay á dollar or accept less -than the 310 shares * * * and give you 200 shares of General Electric preferred.”</p> <p>Grossmann accepted this offer, and the following agreement was executed: “ Memorandum that Lee, Higginson & Co. having this day transferred to Ignatius R Grossmann 200 preferred shares General Electric Co. and received, from him 310 preferred shares Northwest General Electric Co., subject as to these 310 preferred shares to an agreement with the General Electric Co. dated November 8, 1893, concerning such preferred shares, and such transfers having been made upon the terms that this agreement should be executed. It is agreed in consideration thereof that the said transfer and receipt shall be a full satisfaction and discharge of any and all claims and demands that the said Ignatius R. Grossmann may have against said Lee, Higginson & Co. or any of them on account of any transaction between them relating to the purchase or sale of any shares of either of said companies or any other transaction that has been had between them up to this day. And the said Ignatius R. Grossmann shall upon request execute a release of all such claims and demands under his own hand and seal.” After the execution of such agreement and the delivery by Grossmann of the 310 shares of the preferred stock of the Northwest General Electric Company, pursuant to its terms, Grossmann received from the General Electric Company §3,100, covering the guaranteed payment of §10 per share.</p> <p>Held, that, under the agreement between Lee, Higginson & Co. and Grossmann, the former was entitled to the guaranteed payment of ten dollars a share, and that, as such money had been paid to Grossmann under a mistake of fact on the part of the payer, Lee, Higginson & Co. could maintain an action against Grossmann to recover such money as for money had and received.</p>

Appeal by Francis King and another, as surviving executors and trustees under the last will and testament of Henry W. King, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said- Surrogate’s Court on the 14th day of February, 1902, affirming an order entered in said Surrogate’s Court on the 24th day of January, 1902, which confirmed the report of an appraiser fixing, upon a re-appraisal, the transfer tax upon the estate of Henry W. King,…

<p>Constitutional law — the power of removal of the police commissioner of New York city given to the Governor — if unconstitutional it does not affect the other provisions of chapter 33 of the Laws of 1901 — the act does not violate the constitutional provision relating to private or local bills nor deprive any one of property or impair the obligation of contracts—the right to a pension only arises after twenty - five years’ service.</p> <p>The provision of chapter 33 of the Laws of 1901, reorganizing the police force of ' -the city of New York, which authorizes the Governor, whenever in his judgment the public interests shall so require, to remove the police commissioner,. who is appointed by the mayor, does not violate section 2 of article 10 of the Constitution of the State of New York, .which provides, ‘‘ All city, town and village officers, whose election or appointment is not provided for by this Constitution shall' be elected by the electors of such cities, towns and villages, or •of some division thereof, or appointed by such authorities thereof as the Legislature Shall designate for that purpose; ” as it is the appointment, not the removal of the officer, which is regulated by the constitutional provision. Van Brunt, P. J., and Patterson, J., dissented.</p> <p>’Assuming that the above-mentioned provision is unconstitutional, the entire statute is not thereby rendered void, as the elimination of the unconstitutional: provision does not affect the remaining provisions or prevent the accomplishment of the general legislative intent.</p> <p>Such act does not violate section 16 of article 3 of the Constitution of the State of New York, which provides that no private or local bill shall embrace more than one subject, and that that shall be expressed in the title. .</p> <p>Section 6 of article 1 of the Constitution of the State of New York, which provides that no person shall be deprived of property without due, process of law, ■and section 10 of article 1 of the United States Constitution, which provides that no State shall pass any law impairing the obligation of contracts, does not render unconstitutional that' provision of the act of 1901 which abolishes the office of chief of police of the city of New Yoik, in that- it deprives the chief of police so removed of the benefit of that provision of the New York charter which relates to .the granting of a pension to any member of the police force upon the expiration of twenty-five years’ service, as, until the chief of police so removed had served twenty-five years, he had no interest in the pension fund.</p>

<p>Appeal by the defendant, George S. HcAlpin, from' an inter-?, locutory j udgment of the Supreme Court in favor of the plaintiffs,, entered in the office of the clerk of the county of Hew York on the 18th day of February, 1902, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling a demurrer, to the complaint.</p>

Appeal by the defendant, The Mayor, Aldermen and Commonalty of the city of New York, from an order of the Supreme Court,' made at the New York Special Term and entered in the office of the clerk- of the county of New York on the 4th day of March, 1902, granting the plaintiffs’ motion for leave -to serve an amended complaint.

Appeal by Frederick Dippel;' from a decree, of the Surrogate’s Court of the county of Mew York, entered, in said Surrogate’s Court on the 19th day of February, 1902, declaring valid the 6th clause of the will of - Annie Dippel, deceased.

Appeal by John J. Connelly, executor, etc., of Elizabeth H. Smith, deceased, 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 Hovember, 1901, affirming an order theretofore entered in the proceeding confirming the report of an appraiser, reappraising. the property of the said Elizabeth H. Smith, deceased, subject to taxation.

<p>Appeal by Brandt V. B. Dixon and another; as executors, etc;, of Josephine Louise Newcomb, deceased, from an order of the Surrogate’s Court of the county of New York,-entered-in skid Surrogate’s Court on the 11th day of February, 1902, affirming an order-entered in said Surrogate’s Court on the 31st day of July, 1901, upon the report of an appraiser, fixing the transfer tax upon'the estate of the said Josephine Louise Newcomb, deceased.</p>

Order affirmed, with costs.—Reargumenfc of cross-appeals from an order of the surrogate affirming an order fixing the amount of transfer tax.—

Order reversed, with ten dollars costs and disbursements, and action remitted to the court below for the appointment of a new referee, —Appeal from an order denying a motion to set aside a referee’s report ana for the appointment of anew referee.—

Exceptions sustained, interlocutory judgment reversed, and decision and order of reference vacated, and new trial granted, with costs to defendant to abide event.—Motion for a new trial at Appellate Division upon exceptions after interlocutory judgment, pursuant to section 1001 of the Code of Civil Procedure, and also an appeal from the interlocutory judgment which was entered in the clerk’s office of the county of New York on the 29th day of August, 1901, upon the decision…

Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.—Appeal by the defendant from an interlocutory judgment of the Supreme Court, entered in the clerk’s office of the county of New York on the 4th day of November, 1901, overruling a demurrer to the complaint.—

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

<p>Order affirmed,with ten dollars costs and disbursements.—Appeal from an order granting the application of the receiver for leave to loan certain moneys.</p>

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.—Appeal from an order denying the defendant’s motion to vacate an order of preference.—

Judgment: and order affirmed', with costs, on the authority of 42 . Appellate Division. 32. — Appeal from a judgment dismissing the complaint upon tlie merits and from an order denying a mofcioh for a new trial. —

Order affirmed, with ten dollars costs and disbursements.— Appeal by the defendant from an order of the Supreme Court, entered in the clerk’s office of the county of New York on th< 6th day of February, 1902, granting the pmintiff’s motion for a preference herein.—

<p>—Judgment and order affirmed, with costs. —Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for anew trial.—</p>

<p>— Order affirmed, with ten dollars costs and disbursements.—Appeal from an order granting the plaintiff's motion for leave to serve an amended and supplemental súmmons and complaint.—</p>

Order reversed, with ten dollars costs and disbursements, and motion granted.— Appeal from an order denying a motion for a change of venue from New York county to Erie county.—

Judgment reversed, new trial ordered before another referee, with costs to plaintiff to abide event.— Appeal from a judgment entered upon the report of a referee.—

Order reversed, with ten dollars costs and disbursements, and motion granted.—Appeal from an order denying an application for a change of venue from New York county to Erie county.—

Judgment and order reversed, new trial granted, costs to appellant to abide event.—Appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff which awarded her damages for the negligence of the defendant, and also from an order denying defendant’s motion for a new trial.—

<p>As to the defendant Johanna. Baumann, the personal judgment awarded against her in favor of the Alberene Stone Company reversed. In all other respects, judgment affirmed, with costs to respondents.—Appeal by the defendants Wolff and Baumann from a judgment giving a personal judgment against them and the defendant Schiller.—</p>

<p>Order affirmed, with ten dollars costs and disbursements on the opinion of the court below.</p>

<p>Judgment reversed, new trial ordered, costs to appellant to abide event.—Appeal by the plaintiff from a judgment of the Supreme • Court in favor of the defendant, entered in the clerk’s office of the county of New York on the 6th day of December, 1900, pursuant to the verdict of a jury rendered by direction of the court.—</p>

<p>Orders affirmed, with costs.— Appeal by the defendant from an order of the Supreme Court, entered in the office of the clerk of Kings county on the 16th day of May, 1901, setting aside the verdict of a jury upon the first cause of action and granting a new trial thereof; also from an order entered in said clerk’s office on the 23d day of May, 1901, dismissing the defendant'seounterclaim, and also from an ordér entered in said, clerk’s office on the 23d day of - May, 1901; denying the motion of the defendant to set aside the verdict in favor of the plaintiffs upon the second cause of action.—</p>

<p>Judgment reversed and new trial granted, costs to abide the final award of costs.—Appeal from a judgment, entered in the office of the clerk of the county of Kings on the 26th day of August, 1901.—</p>

—Judgment modified by striking out the words “ on the merits,” and as so modified, affirmed, without costs of this appeal.— Appeal from a judgment dismissing plaintiff’s complaint at the close of plaintiff’s evidence.—

<p>Judgment affirmed, with costs.—Appeal by the defendant from a judgment in favor of the plaintiffs, entered in the office of the clerk of the county of Richmond on the 30th day of March, 1901, upon the verdict of a jury rendered by direction "of the court.—</p>