Volume 72 — New York Appellate Division Reports

Appeal by the defendant, Joseph W. Cody Contracting 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 23d day of January, 1902, setting aside as inadequate the verdict of a jury in favor of the plaintiff for $600 and granting a new trial of the action.

Appeal by the defendants, J ames J. Crowe and another, 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 defendants’ motion to join John 0. Krull as a co-defendant in the action and staying the action begun by the said John 0. Krull against these defendants until the determination of this action.

Appeal by the defendant, Duncan Young, from a judgment of the Supreme Court in favor of the plaintiff, entered on the 16th day of June, 1899, upon the verdict of . a jury convicting him of the crime of murder in the second degree, and also from an order denying the defendant’s motion for a new trial and from an order denying his motion in arrest of judgment.

Appeal by Rube R. Fogel, the purchaser at the foreclosure sale in the above-entitled action, 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 24th 'day of March, 1902, denying his motion to be relieved from his purchase.

Appeal by the defendant, Andrew Robinson, 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 June, 1901, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 16th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — collision at a street crossing, between a wagon and a street car, which were seventy-five feet distant when the wagon started to cross the tracks — ca/re required where two cars overlap each otherr.</p> <p>In an action to recover damages ior personal injuries, sustained by the plaintiff in consequence of a collision at a street intersection between one of the defendant’s street cars and the wagon which the plaintiff was driving, evidence tending to show that at the time the plaintiff started to drive across the tracks the car was seventy-five feet away, justifies the jury in finding that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence.</p> <p>The duty of the motorman of an electric street car, to have it under control as it approaches a street crossing, is increased where the motorman’s view of the crossing is obstructed by another car traveling in the same direction.</p>

<p>Attorney and client — an attorney for a defendant sued for negligence may stipulate that the plaintiff’s deposition taken before trial may be read, in case of his death, in an action by his personal representatives — that two verdicts have been rendered for the plaintiff,.considered on the question of reversal as against evidence.</p> <p>An attorney has implied authority, by virtue of his retainer, to do whatever in his judgment may be necessary to advance his client’s interest. To that end the attorney for the defendant, in an action to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, has authority to agree that the deposition of the plaintiff may be taken before the trial and that, if he dies before such trial, the deposition may be read upon the trial of an action brought by his personal representatives, against the same defendant, to recover damages resulting from the decedent’s death.</p> <p>In determining whether a judgment, entered upon the verdict of a jury, should be reversed as against the weight of evidence, the fact that on a former trial another jury reached the same conclusion should be considered.</p>

Appeal by the plaintiff, Thomas Mould, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York on the 7th day of January, 1902, upon the decision of the court rendered after a trial at the Rew York Special Term dismissing the complaint upon the merits, except that portion which directs the sale of certain stock and the payment of the amount due the defendant bank.

<p>Delivery of a certificate of a bank, that certain bonds have been deposited with it, indorsed with words of gift thereof and signed by the owner—it is a valid gift inter vivos.</p> <p>Evidence that a woman owning bonds which had been deposited by her in a bank for safe-keeping, during an illness from which she died three weeks later, gave to her niece the original memorandum of the purchase of the bonds indorsed with the following statement: “ Poughkeepsie, November 23, 1901. “I have this day given my niece, Fannie H. McGavic, bond 2000- Reg. 4 per cent. DELIA 0. ROBINSON.” and that at the time she was physically unable to make actual delivery of the bonds, because of her enfeebled condition and because the bonds were in the custody of the bank, establishes a valid gift inter vivos.</p>

<p>Appeal by the plaintiff, William T. Gilbert, as receiver of Commercial-Alliance Life Insurance Company, 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 July, 1901, upon the verdict of a jury rendered by direction of the court dismissing the plaintiff’s complaint.</p>

Appeal by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments 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 19th day of March, 1902, granting the relator’s motion for a peremptory writ of mandamus.

<p>APPEAL by the defendant, The Thompson-Starrett Oomp~ny, from a judgment of the. S~preine. Oourt in .fa~,or Qf the piaintiff~ entered in the office of th•e c'erk of the cOunty of Ne~ York on the 29th day of January, 1902, 1~pon the verdiOt of ~a jury for $1,100, and also from. an order entered iii. said clerk's office oil t1~e 31st day of January,. 1902, denying the defo~.d.ant's. .mot~~n for a new trial made upon tile minutes.</p>

<p>Wager on a, horse race—what offense does not come within the exception in section 351 of the Penal Code relating to other statutes providing “an exclusive penalty ” —general verdict where the indictment contains several counts—persons engaged in securing evidence are not accomplices.</p> <p>The offense of permitting premises, not located upon a race track, to be used as a pool room, viz., a place for the purpose of recording and registering wagers on the result of a horse race, is not within the exceptions contained in section 351 of the Penal Code, which provides that the doing of the acts prohibited shall constitute a felony, “except when another penalty is provided by laW,” and “When an exclusive penalty is provided by law for an act hereby prohibited, the permitting of the use of premises for the doing of the act in such case shall not be deemed a violation hereof, or of section three hundred and forty-three of this Code.”</p> <p>The first exception relates to the penalty provided in chapter 570 of the Laws of 1895, which penalty is only applicable when the offense is committed upon a race track.</p> <p>4,n exclusive penalty for the offense is not provided by sections 4 and 5 of 1 Birdseye’s Revised Statutes, 2d edition, page 270.</p> <p>Where an indictment contains several counts and the case is submitted to the jury upon all of such counts and a general verdict of guilty is rendered upon sufficient evidence, the verdict will be sustained if any one of the counts is good.</p> <p>Persons engaged in procuring evidence for the purpose of detecting and punishing an offense do not constitute themselves accomplices in the transaction where they do not aid or abet in the commission of the crime and do not intend to commit a crime.</p>

<p>Motion by the defendant, the American Surety Company of New York, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury rendered by direction of the court after a' trial at the New York Trial Term.</p>

Appeal by the relator, John Wilson, 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 February, 1902, upon the return of a writ of habeas corpus, after a hearing had thereon, adjudging that the magistrate of the Magistrate’s Court of the city of New York had jurisdiction of the person of the relator and that the relator was lawfully committed and properly in the custody of…

Appeal by the plaintiff, Edward C. Underhill, 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 24th 'day of February, 1902, upon an interlocutory judgment entered in said clerk’s office on the 29th day of January, 1902, upon the decision of the court rendered after-a trial at the New York Special Term sustaining a demurrer to the complaint, with notice of an intention to bring up for…

<p> Contract to embroider material, specially manufactured,-which cannot be duplicated and has no market value — measure of damages for its breach where the embroiderer has knowledge of the existence of a contract for the sale of the product. ■- </p> <p>In an action to recover damages for the breach of a contract, it appeared that the plaintiff, who was engaged in the business of decorating and furnishing houses, made a contract to furnish a pair of portieres and other draperies to a customer;, that he entered into a contract with the defendants to embroider the draperies, which were made of material especially manufactured for the pur- . pose, which could not be duplicated and had no market value;. that the defendants spoiled the material, and that in consequence thereof the plaintiff was unable to carry out his contract with the customer. The court found that, at the time the defendants received the material, they knew of its exceptional character as well as of the existence of the contract which the plaintiff had with the .customer.</p> <p>Held, that the measure of damages was the value of the material and labor supplied by the plaintiff, and the profits which he would have received-if he had been able to carry out his contract with the customer.</p>

Appeal by the petitioner, Simon Hirshbach, 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 Hew Yoi’lt On the 16th day of December, 1901, as resettled by an order entered in said clerk’s office on the 6th day of January, 1902, denying the petitioner’s application to compel the respondent, an attorney, to pay-over to him certain moneys in summary proceedings.

Appeal by the plaintiff, the First Presbyterian Church in New York City, 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 24th day of March, 1902, requiring that the complaint be made more definite and certain and striking out matter as irrelevant and redundant, except that part of said order directing that a certain clause contained in the 5th paragraph of the complaint be stricken…

<p>Appeal by Katharina Geissler from a decree of the Surrogate’s Court of the county of Hew York,, entered in said Surrogate’s Court on the ,13th day of January, 1902, construing the will of George Geissler, deceased.</p>

Appeal by Francis L; Oorrao and another from an order of the Supreme Oourt, made at the Hew York Special Term and'entered in the office of the clerk of the county of Hew York on the i2th day of Hovember, 1901, adjudging them guilty of contempt of court.

<p>Appeal by the defendant, Alonzo J. Whiteman, 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 3d day of April, 1901, convicting the defendant of the crime of grand larceny in the second degree, and also from an order denying the defendant’s motion for a new trial and from an order denying his motion in arrest of judgment.</p>

<p>Landlord and tenant — obligation to the landlord of a mortgagee of the leasehold interest, who, as the agent of the tenant, collects the rents due from, the sub-lessees under an agreement to apply them upon the rent due to the landlord as it matures — not liable under the agency nor as mortgagee in possession, fin' any rent falling due after, although accruing before, the termination of the agency.</p> <p>Adelia Duane Ireland leased certain premises to Richard de Logerot for a term of twenty-one years and nineteen days, commencing April 12, 1886, at ah annual rent of §28,000, payable in quarterly installments on the first days of October, "January, April and July. April 7, 1893, de Logerot, who had borrowed §60,000 from the United States Mortgage and Trust Company upon a mortgage covering the lease, entered into an agreement with that company which recited that the object thereof was to provide a method of extinguishing his indebtedness to the trust company, and to have the benefit of the aid and services of the company in the collection of the rents of the premises and the care and management of the same, and which also provided that the trust company was employed as de Logerot’s agent to take the charge and management of the premises, with authority to collect and receive all rents due or to become due from the sub-tenants. The agreement provided that, out of the rents received by it, the trust company should first pay and discharge the ground rent reserved by the lease from Ireland to de Logerot at the times and in the manner therein provided, and all taxes, assessments, water rents, insurance premiums, expenses for repairs, alterations and additions, and expenses in the management of the property; that it should thereafter retain, as compensation for its services in and about the premises, three per cent of the gross receipts, and that out of the net receipts then remaining the trust company should take and apply, every six months, the sum of §5,000 on account of its mortgage.</p> <p>The agreement further provided that the trust company should not be required or expected to make advances to meet the payments required by the agreement, but that all such payments should be made out of the moneys derived from the rents of the property, and that if the same should be insufficient to meet the payments as they became due, the trust company should have the right to call upon de Logerot to make up the deficiency, and that, upon his failure to do so, the trust company might, at its election, declare its mortgage immediately payable.</p> <p>The trust company managed the property under the agreement until March 31, 1899, upon which date it surrendered possession thereof to Ireland. On December 81, 1898, it had expended, under the provisions of the agreement, §26,095.59 in excess of the amount of rents collected by it. During the period from January 1, 1899, to March 23, 1899', the trust company collected rents amounting to $7,251.59, and disbursed, under its agreement with de Logerot, §3,327.55, leaving the sum of §3,923.98.</p> <p>In an action brought by Ireland against the United States Mortgage and Trust Company to recover the rent which became due April 1, 1899,</p> <p>Held, ■ that the agreement between de Logerot and the trust company did not create a personal obligation upon the part of the trust company to pay the rent reserved by the lease which could be enforced by the plaintiff, under the doctrine announced in Lawrence v. Fox, as the agreement was made for the benefit of de Logerot and not for the benefit of the plaintiff, and as it was expressly provided in the agreement that the trust company should not be obliged to advance any money in payment of de Logerot’s obligations beyond the amoúnt of rents collected by it;</p> <p>That, under the agreement, the defendant was entitled to apply the rent received by it upon account of disbursements made by it under the agreement prior to the time when such rent was received;</p> <p>That the defendant was not personally liable for the rent on the ground that it was a mortgagee of the lease in possession, as its possession was not acquired by virtue of the mortgage, but solely as the agent of de Logerot;</p> <p>That, as the trust company had surrendered the premises to the plaintiff March 81, 1899, it was not liable for the rent which became due April 1, 1899.</p>

Appeal by Lawrence P. Mingey, an attorney, 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, 1901, directing him to pay over certain moneys collected by him as guardian ad litem of Elizabeth Roessner, and also from an order 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, 1901, denying the…

Appeal by the defendants, Augustus D. Shepard 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 27th day of February, 1902, directing the defendant Shepard to execute a satisfaction of a judgment recovered by him in an action against the Manhattan Railway Company, and to execute certain releases and deliver the same to the said railway company within a time specified after…

' Appeal by 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 23d day of January, 1902, fixing the compensation of the claimant for services rendered in the proceeding as a real estate expert and appraiser at the sum of $5,000.

Appeal by the plaintiff, Andrew McLeod, 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 oh the 20th day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, the Van Publishing Company, 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 17th day of December, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. The action was brought upon the following complaint. “ 1.

Appeal by the plaintiffs, Herbert B. Stevens 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 24th day of February, 1902, directing that a judgment theretofore rendered in favor of the plaintiffs and against the defendants he canceled as against the defendant Amelia A. Meyers.

<p>Beservation, in a conveyance of property abutting on an elevated railroad, of all claim to damages f or its construction and operation—right of the grantor in such ■ conveyance, in a judgment recovered by a subsequent grantee of the premises against the railroad company for such'damages—the grantor remitted to an application for an injunction restraining the payment of the recovery to the grantee, on the granting of which a bond would be required to indemnify the grantee against. loss of interest while the injunction should, be operative.</p> <p>The Western Union Telegraph Company, being the owner of certain property located in the city of New York, conveyed it to George W. Tubbs by a deed which contained the following reservation: “ The party of the first part hereto reserves all claim or right of action against the Metropolitan and Manhattan Elevated Railway Companies, or either of them, for any and all injury or damage done to the aforesaid property, ór to the value or uses thereof in the past, present or future, by reason of the construction and operation of the elevated railroad in front of the said premises, as it is now constructed and operated.” After several mesne conveyances, the property was conveyed to Augustus D. Shepard by a deed which contained the following clause: “Damages to said premises arising by reason of the elevated railroad as now constructed and operated in front of said premises have been reserved to the Western Union Telegraph Company, a former owner.”</p> <p>Shepard brought an action against the railroad companies to recover damages .for the appropriation of the easements appurtenant to the property, which resulted in a final judgment, by the terms of which the defendants were required to pay to the plaintiff a sum in excess of $100,000, and the plaintiff, upon such payment, was required to execute and deliver a conveyance of the property rights appropriated by the defendants.</p> <p>After the commencement of such action, the Western Union Telegraph Company brought an action against Shepard and the other parties interested in the controversy to impress a trust upon the funds which might be recovered by-Shepard from the railroad companies. The complaint in such action was dismissed by the Trial Term and the judgment was affirmed by the Appellata Division. The Court of Appeals, however, reversed the judgment and ordered a new trial, holding that the effect of the reservation contained in the deed from the Western Union Telegraph Company to Tubbs was to make Shepard a trustee for the company, but it did not assume to determine whether, under the circumstances of the case as they might be developed upon the trial of the action, the Western Union Telegraph Company would necessarily take the whole of the recovery or any part of it.</p> <p>Upon an appeal from an order made in the action brought by Shepard against the railroad companies directing the defendants to pay into court the amount of the judgment rendered against them and directing the plaintiff to execute the conveyances required by the terms of such judgment, it was</p> <p>JETeld, that the Court of Appeals contemplated that the damages recovered by Shepard from the railroad companies might be the subject of apportionment between him and the telegraph company.</p> <p>That, in any event, Shepard as trustee was entitled to retain from the recovery a reasonable allowance for costs and expenses incurred in the production of the recovery, and that such right included, the reasonable fees paid or agreed to be paid to his attorney and counsel in the litigation, and that the telegraph company had no beneficial interest in the damages recovered for loss of rent after the conveyance by it;</p> <p>That, as it appeared that Shepard and his attorney had a substantial interest in the fund, he should not be obliged to suffer the loss which would result from the reduction in the earning power of the fund when paid into court;</p> <p>That the telegraph company could protect itself from any loss by procuring, an injunction in the action brought by it, restraining the payment of the recovery to Shepard, upon which application it would be required to give a bond which would indemnify Shepard against any loss which he might sustain by • reason of "his failure to receive the money under the judgment obtained by " him;-</p> <p>That, consequently, the order appealed from should be reversed without prejudice to the right of the "Western Union Telegraph Company to make application for'the injunction indicated.</p>

<p>Mechanicsf liens—sub-contractors’ liens are not necessarily dependent on the right of their principal to recover under his contract—remedy of the principal contractor where the owner is guilty of a breach of contract — where the contractor is guilty of such breach — acquiescence on the trial in the adoption of a wrong 'measure of damages.</p> <p>Where the principal contractor for the erection of a building elects to rescind his contract because of an alleged breach thereof by the owner, and both the principal contractor and two sub-contractors furnishing material to him file mechanics’ liens against the building, the right of the sub-contractors to judgments foreclosing their liens does not necessarily depend upon the right of the principal contractor to maintain his lien.</p> <p>If the owner was guilty of a breach of the contract, he is liable to the material-men provided there remains due and unpaid sufficient of the contract price to discharge their claims. If the contractor was guilty of the breach and the owner completed the contract, he would still be liable to the sub-contractors if there remained, after deducting the cost of completion, sufficient of the contract price to pay their claims.</p> <p>A contractor, who elects to rescind his contract because of a breach thereof by the owner, becomes relegated to the right to recover, on quantum'meniit, the reasonable value of the work done and the materials furnished. Where, however, the action brought by him to recover the amount due to him is, without objection, tried upon the theory that the contractor is entitled to recover the contract price less the payments made to him and the expense incurred by the owner in completing the contract, the owner will be deemed to have acquiesced in the adoption of that measure of damages.</p>

■ Appeal by the defendant, the Gilbert Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1902, denying the defendant’s motion for leave to serve an amended answer.

Appeal by the defendant, Mary E. Gibson, 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 24th day of March, 1902, vacating a previous order which dismissed the plaintiffs appeal herein, and authorizing the service of papers prepared upon the appeal upon certain conditions, and upon failure to comply therewith directing the appeal to be dismissed.

<p>Bemedy of a contractor who in good faith abandons work before it is entirely finished — where he abandons it because an intermediate payment is not made by the owner ■ — where the owner completes the work—general damages recoverable by the contractor in the last case.</p> <p>Where a building contractor, acting in good faith, quits work in the belief that he has fully completed his contract, when, in fact, slight omissions exist therein which may be readily supplied or remedied, the rule of substantial performance-obtains in equity and the contractor may recover from the owner the contract price less a proper deduction for the omissions.</p> <p>Where, however, the contractor deliberately abandons the work without any pretense of having, fully completed his contract, solely on account of the failure of the owner to pay an intermediate installment of the contract price, tie must, in order to recover, be prepared to show full performance of all thé conditions precedent to his right to receive the payment in question.</p> <p>Where, in such a case, the owner completes the work under a provision in the contract authorizing him, in case the contractor should default, to finish the work and deduct the cost from the contract price, the fact that such provision is the only provision in the contract bearing upon the question of damages, does not preclude the owner from recovering from the contractor the general damages resulting from the latter’s breach of the contract. The measure of such damages is compensation for the loss reasonably and proximately resulting from the breach of the contract.</p> <p>Semble, that where an owner, in accordance with the terms of the contract, completes the work after default by the contractor, the latter is ordinarily entitled to recover the difference between the cost of completion and the balance unpaid oil the contract.</p> <p>O’Brien, J., dissented.</p>

Appeal by the plaintiffs, Carmela Pizzi and another, as administratrix and administrator, etc., of Rubino Pizzi, deceased, 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 5th day of February, 19054, upon the decision of the court rendered after a trial at the New York Special Term, sus taining the defendants’ demurrer to the amended complaint.

Appeal by the defendant, Harry Adams, from a judgment of the Court of General Sessions of the Peace, held in and for the city and county of Hew York, entered on the 28th day of August, 1900, upon the verdict of a jury convicting the defendant of the crime of rape in the first degree, and also from an order entered on the 29th day of August, 1900, denying the defendant’s motion for a new trial and in arrest of judgment. ■

<p>Libel—notice to the trade that patents have been violated is privileged—what is a privileged communication — when it is a question of law.</p> <p>In an action of libel brought by one Bowsky against a corporation and the president thereof it appeared that the corporation owned certain patents for unhairing skins; that the plaintiff Bowsky was engaged in the business of unhairing skins and was using certain machines which were claimed to be infringements</p> <p>of the patents owned by the corporation; that the corporation caused to be published in a trade newspaper called the Pur Trade Bemew the following article:</p> <p>“ To the Trade:</p> <p>“ This is to advise you that in a suit instituted by us in the U. S. Circuit Court for the Eastern District of Mew York, against John Derbohlow for infringing U. S. Letters Patent Mo. 536,742, granted to John W. Sutton, April 2, 1895, a decision was rendered by Judge Lacombe a few days ago, sustaining this patent and granting an accounting and a perpetual injunction against the defendant. We have recently commenced suit against Max Bowsky for infringement of our Electric Unhairing Patent Re-issue Mo. 11,079, granted to Hedbavny May 27,1890, and of the Sutton patent Mo. 383,258 of May 22,1888, both of which have already been sustained by the courts, and we propose to' proceed promptly against any further infringers of these or any other patents owned or controlled by us.</p> <p>“ The validity of our patents having now been repeatedly passed upon by the Courts, we hereby notify all infringers that they will be held responsible for treble damages, and that we shall prosecute them to the full extent of the law; and in order that we may not be misunderstood, we desire the trade to take notice that a dealer who causes skins to be unhaired on infringing machines, whether on his own machines or by his own workmen or on machines operated by others, is guilty of infringement.” '</p> <p>Every statement contained in the article was shown to be substantially true.</p> <p>Meld, that a verdict was properly directed for the defendants on the ground that the article was privileged, and that the defense of justification, which was pleaded, had been made out;</p> <p>That the article did not charge that the validity of the patents owned by the corporation had been established as against Bowsky, and that the plaintiff was, therefore, not entitled to have the case submitted to the jury because of the alleged falsity of that charge.</p> <p>A privileged communication is one fairly made by a person charged with some public or private duty, legal or moral, or in the conduct of his own affairs in a matter in which his interests are concerned.</p> <p>Where the facts upon which the alleged privilege rests are uncontradicted, the question of privilege becomes one of law.</p>

Appeal by the defendant, Henry Pasinsky, 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 20th 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.

Appeal by the plaintiff, Christine H. Hinsdale, 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 bn the 19th day of April, 1902, granting the defendant’s motion for an interpleader.

<p>Negligence — boarding a moving street car is not necessarily negligent.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, while attempting to board one of the defendant’s street cars in the city of New York, in consequence of the alleged action of one of the defendant’s servants in suddenly accelerating the speed of the car, it is error for the court to charge, “The usual invitation to us to get aboard of a public vehicle is that it stops, and in all ordinary cases to get aboard, or to attempt to get aboard, of a moving public vehicle is imprudent. This case turns upon this: Did the plaintiff act as wculd a reasonably prudent person, and did the motorman of the car act as would a prudent person at that time?” as it cannot be said, as matter of law, that an attempt to board a moving street car is a negligent or imprudent action</p> <p>Ingraham, J., dissented.</p>

Appeal . by the defendant, The Morning Journal Association, 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 for $10,000, and also from an order bearing date the 10tli day of February, 1902, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

Semble (per Van Brunt, P. J., and Ingraham, J.), that in an action brought by a sub-contractor to recover for the breach of a contract by which he agreed to manufacture articles for use in a building in process of construction, which articles the architect appointed by the owner of the building has refused to accept, it is proper for the defendant, the principal contractor, to put in evidence his contract with the owner, providing that the work should be approved by the…

Appeal by Frances Baker, as administratrix, etc., of Elizabeth Wilbur, deceased, from a decree of the Surrogate’s Court of Washington county, entered in said Surrogate’s Court on the 12th day of July, 1901, judicially settling her accounts as such administratrix.

Appeal by the defendants, Mary Agnes Early and others, froma judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 26th day of August, 1901, upon the report of a referee.

- Appeal by the defendant, Dewitt 0. Moore, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 21st day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary J. Jewell, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 30th day of December, 1901, upon the decision of the court, rendered after a trial at the Tompkins Special Term, sustaining a demurrer to the complaint.

Appeal by the defendant, William Hollands, as administrator, etc., of John I. Winne, deceased, from a judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 5th day of September, 19.01, upon the report of a referee. The plaintiff presented a claim against the estate of John I. Winne, deceased. The administrator rejected it. A reference was ordered by the surrogate, under the statute.

Appeal by the defendant, the Erie Railroad Company, from a judgment of the County Court of Sullivan county in favor of the plaintiffs, entered in the office of the clerk of the county of Sullivan on the 16th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the -20th day of February, 1901, denying the defendant’s motion for a new trial made upon the minutes.

■ Submission of a controversy' upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. The defendant is the successor of “ The Albany Railway,” a corporation which was duly incorporated on September 14,1863, under the provisions of the General Railroad Act of 1850 (Chap. 140), and various amendments thereto, for the purpose of operating a street railway in the streets of the city of Albany and elsewhere in the county of Albany.

<p>Appeal by the plaintiffs, Ellen M. Rand and others, from a judgment of the County Court of Rensselaer county in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 31st day of December, 1901, affirming, upon appeal, a judgment in favor of the defendants rendered by a justice of the City Court in Troy dismissing the plaintiffs’' complaint.</p> <p>Plaintiffs claim to have leased to one Keenan, by written lease executed through their duly authorized attorneys, certain premises in the city of Troy, for the yearly rent of $1,800, commencing January 1, 1900, and that these defendants, as his sureties, indorsed upon such lease a written guaranty for the payment of such rent and for the performance by Keenan of all the obligations by him assumed therein.</p> <p>Upon the trial in the City Court the plaintiff was nonsuited. The County Court affirmed such judgment upon appeal to it, and from such judgment of affirmance this appeal is taken.</p>

<p> Monticello and Fallsburgh Turnpike Road Company—no exemption from toll exists in the case of persons living within one mile or one-half mile of the toll gate. </p> <p>The Monticello and Fallsburgh Turnpike Road Company was organized in April, 1889, under 'the provisions of chapter 210 of the Laws of 1847 and the several acts amendatory thereof. Such acts authorized it to collect tolls at the rate of a certain sum per mile, and provided that certain persons should be entirely . exempt from the payment of tolls and that persons living within one mile of the toll gate should be liable for toll at one-half of the prescribed rates.</p> <p>In June, 1889, a special act was passed (Laws of 1889, chap. 490) authorizing the turnpike company in question to charge fixed rates of toll instead of a specified sum per mile and making no distinction between persons living within a mile of the gate and those living at a greater distance therefrom, and making no reference whatever to any person as being exempt. The 2d section of such act provided that the company should possess the general powers, rights and privileges and be subject to the liabilities and restrictions of turnpike road companies, such as were or might be provided by the general statutes of the State, “ except as in this act otherwise provided.” The company operated its road under the special act.</p> <p>Held, that the provision of the general act that any person residing within one mile of the toll gate should pay one-half the rates that others paid, was abrogated as to the turnpike company in question because it was distinctly “ others wise provided” by the special act;</p> <p>That the rights acquired by the turnpike company under the special act were not limited by section 130 of the Transportation Corporations Law (Laws of 1890, chap. 566) which provides that persons living within one mile of the toll gate shall be exempt from the payment of tolls, nor .by chapter 538 of the Laws of 1893, which provides that persons living within one-half mile of a toll gate shall be exempt from the payment of tolls, it appearing that neither of the statutes last mentioned assumed to amend or repeal the special act.</p> <p>Smith, J., dissented.</p>

Appeal by the plaintiffs, J. Block 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 Rensselaer on the 29 th. day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of October, 1901, denying the plaintiffs’ motion for a new trial made upon the minutes. The.plaintiffs were whisky dealers at Louisville, Ky.

Appeal by the claimants, Alonzo Denton and others, from a judgment of the Court of Claims, entered in the office of the clerk of the Court of Claims on the 19th day of December, 1900, dismissing their respective claims.

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 Columbia on the 3d day of July, 1901, upon the report of a referee. In 1882 the plaintiff was employed by the defendant as engine dispatcher at a station called Chatham upon defendant’s road.

Appeal by the defendant, Austin B. Carpenter, as sheriff of Madison county, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 26th day of November, 1901, upon' the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of November, 1901, as amended by a stipulation filed in said clerk’s office on the 7th day of December, 1901, denying the defendant’s motion for…

<p>Appeal by the defendant, George W. Babcock, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 2d day of August, 1901, upon the decision of the court rendered after a trial before the court without a jury at the Tompkins Trial Term.</p> <p>The material facts appear in the opinion.</p>

Appeal by the defendant, the Hudson River Water Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 8th day of June, 1901, upon the verdict of a jury for $450, and also from an order bearing date the 4th day of June, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Glens Falls Insurance 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 Sulli. van on the 8th day of January, 1902, upon the decision of the court, rendered' after a trial at the Sullivan County Special Term, overruling a demurrer to the complaint. The single ground of demurrer is a defect of parties plaintiff. The action is upon a fire insurance policy.

Appeal by the plaintiff, Frank B. Shedrick, from a judgment of the County Court of Saratoga county in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 28th day of March, 1900, upon the report of a referee dismissing, the complaint upon the merits. The appeal brings up for review the exceptions taken at the trial.

<p>Indictment—inspection of the minutes of the grand jury by the accused—a grand jury may indict where there is no preliminary examination — order modifying stay, when it takes effect — duty of a police captain in New York city to suppress disorderly houses — competency of his weekly reports to show a willful failure to do so.</p> <p>The right of a person who has been indicted, to inspect the minutes of the grand jury which found the indictment, is not absolute, but rests in the discretion of the court.</p> <p>A grand jury is a court of original inquiry, and its jurisdiction is not limited to cases where a preliminary examination of the accused has been had before a magistrate.</p> <p>An order of a justice of the Supreme Court, modifying a stay of proceedings granted in a criminal action in the Court of General Sessions of New York, if the order be effective at all, is operative from the moment it is made, and its subsequent entry relates back to the time when the order was granted and makes lawful all proceedings had in the meantime.</p> <p>The duty to “ enforce and prevent the violation of all laws * * * in force in said city,” imposed upon the police force of the city of New York by section 315 of the Greater New York charter(Laws of 1897, chap. 378), includes all the provisions of the Penal Code, both as to felonies and misdemeanors, so far as they are applicable to the city of New York and requires a captain of the police force in the city of New York to suppress houses of prostitution in his precinct.</p> <p>A modified effort on the part of the police captain to enforce the law with reference to the suppression of houses of prostitution is not sufficient, and he has no discretion in the premises. .</p> <p>Upon the trial of a police captain, under an indictment charging him with willfully failing to suppress a house of prostitution located in his precinct, weekly reports made by the defendant, stating that the house in question was not a house of prostitution, are competent upon the question of the willfulness of the defendant in failing to discharge his duty.</p>

Appeal by the petitioner, Jay T. Eldridge, and another, from an order of the Surrogate’s Court of Washington county, entered in said Surrogate’s Court on the 29th day of January, 1902, denying their motion to vacate an order entered in said Surrogate’s Court on the 30th day of December, 1901, declaring that the proceeding had abated.

Appeal by the defendants, Frank H. McKinnon and another from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chenango on the 30th day of November, 1901, denying the defendants’ motion for leave to serve a supplemental answer alleging their discharge in' bankruptcy obtained since the action was commenced. In 1894 the defendants suffered default and a judgment in favor of plaintiff was directed.

Appeal by the defendant, The Boston and Maine Railroad, from an order of the Supreme Court, made at the Saratoga Special Term and 'entered in the office of the clerk of the county of Saratoga on the 10th day of February, 1902, confirming the report of commissioners appointed in the proceedings and directing and adjudging that the Boston and Maine Railroad connect with the Stillwater and Mechanicville Street Railway, and permitting said street railway to make such connections…

<p>Bight of way by necessity — a deed by the original grantor of the land over which it' existed, made subject to such right of way, construed — when the right of way ceases to exist.</p> <p>Where an owner of land conveys a portion thereof having no outlet to the highway, the grantee will take with his deed a right of way by necessity across the grantor’s unsold land.</p> <p>Where the grantor subsequently conveys his remaining land, including the strip over which the right of way exists, by a warranty deed reciting that it is subject to such right of way, such recital will be construed as intended to protect the grantor against liability upon the covenants contained in the deed, and not as intended to reserve to the grantor any interest in the premises or to enlarge the existing rights of the owners of the right of way by hecessit3r.</p> <p>8eruble, that even if the deed of the grantor’s remaining lands clearly expressed an intention to confer additional rights on the owners of the right of way, such owners could not maintain an action under the deed, as the grantor was _ under no moral or legal obligation to enlarge the rights of the owners of the right of way.</p> <p>A right of way by necessity will continua only as long as the necessity therefor exists. Consequently, where the grantee, by the purchase of an adjoining piece of land, secures access to the property over his own lands, the right of way will cease,</p> <p>Smith and Fursman, jj., dissented.</p>

<p>Appeal by the relator, Louis A. Madden, from an order granted by the county judge of Sullivan county and entered in the office of the clerk of the county of Sullivan on the 28th day of December, 1901, dismissing a writ of habeas corpus theretofore granted in the proceeding and remanding the relator to the custody of the sheriff of the county of Sullivan.</p>

Appeal by the defendant, The United States Leather Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 11th day of December, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Albany and Hudson Railway and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 19th day of October, 1901, upon the verdict of a jury for $9,500, and also from an order entered in said clerk’s office on thé 23d day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Alexander Weir, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 17th day of January, 1902, upon the decision of the court rendered after a trial at the Clinton Special Term confirming the report of a referee upon a sale in partition, and directing the distribution of the proceeds of the sale, with notice of an intention to bring up for review upon isuch appeal…

Appeal by the plaintiff, George W. Crooks, as trustee in bankruptcy of the estates of Howard E. King and of the firm of H. E. King & Son, bankrupts, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 13th day of April, 1901, upon' the decision of the court, rendered after a trial before the court without a jury, dismissing the complaint upon the merits.

<p>Taxation of trust companies—from what assessment they are exempted by chapter 132 of the Laws of 1901.</p> <p>Chapter 132 of the Laws of 1901, which became a law March 21, 1901, and took effect immediately, changing the method of taxing trust companies organized under the laws of the State of New York, and providing that the personal property of such trust companies “ shall be exempt from assessment and taxation for all other purposes,” was intended to substitute, as of the date of its passage, the tax provided by that act for all other taxes upon trust companies. This act operated to relieve a trust company located in the city of Binghamton from the payment of the city tax levied upon it for the year 1901, under the charter of that city, which directs the assessors to make and file in the office of the city clerk a “ correct and complete assessment roll” on or before the 1st day of October, 1900, and provides that the assessors shall meet for ten days after the first Tuesday in April, 1901, for the purpose of making transfers and additions to the roll.</p> <p>Parker, P. J., dissented.</p>

<p>Taxation of banks-—from what assessment they are exempted by chapter 550 of the Laws of 1901.</p> <p>It was the purpose of the Legislature in enacting chapter 550 of the Laws of . 1901, which amended section 34 of t]ie Tax Law (Laws of 1896, chap. 908), by changing the method1 ■ of taxing bank stock, and provided, “All assessment of the shares of stock of banks and banking associations made on or after January first, nineteen hundred and one, and prior to the passage of this act, shall be null and void, and new assessments thereof shall be made agreeably to the provisions of this act, ” to substitute the new liability for the old as of January 1, 1901, and to relieve the stockholders of a bank from all liability after that date finder any other law, although the act of 1901 may not have taken effect until after the final revision of the assessment roll under which such liability might arise.</p>

Appeal by the defendants, John King and another, as receivers of 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 Sullivan on the 10th day of December, 1900, upon the verdict of a jury for $527.60, and also from an order entered in said clerk’s office on the 21st day of January^ 1901, denying the defendants’ motion for a new trial made upon the minutes. '…

<p>A right to erect a dam, may be acquired by prescription—it passes under a conveyance of the land — it is not lost by six yean'd nonuser:—measure of compensation where it is taken by right of eminent domain. '</p> <p>A riparian owner of -land on a stream may acquire, by prescription, the right to erect a dam which will set hack the water of the stream and thereby overflow lands belonging to others.</p> <p>The right thus acquired is appurtenant to the land and passes under a conveyance thereof.</p> <p>Where the right to maintain the dam has been established by a prescriptive use extending from 1848 to 1892, the fact that for a period of some six years, between 1892 arid 1898, at which latter date the property was appropriated by the State, the dam has been suffered to fall into decay and has not since been repaired, does not establish an intention to abandon the right.</p> <p>An estimate of the valué of the right to erect the.dam, based upon the single ground that its appropriation by the State deprived the owner of a chance to sell it to persons owning property higher up on the stream, was held to be erroneous.</p>

Appeal by the plaintiff, Walter L. Lampman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 23d day of October, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Columbia Trial Term.

Appeal by the defendant, James Gordon Bennett, from a- judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 16th day of October, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 10th day of October, 1901, denying the defendant’s motion for a hew trial made upon the minutes.

<p>Appeal by the defendant, Daniel Doody, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the; clerk of the county of Kings on the 26th day of December, 1900, upon the verdict of a jury convicting him of the crime of perjury.</p> <p>This appeal was transferred from the second department to the third department.</p> <p>In 1896 and 1897 Theodore B. Willis was commissioner of city works in the .city Of Brooklyn; Robert W. Fielding was deputy commissioner of city works ; William E. Phillips resided in Brooklyn and was a brother-in-law of Theodore B. Willis; Oscar Knapp was a water purveyor; Frederick Milne was an engineer in the water purveyor’s office ; A. Lawrence Jensen was financial clerk in the comptroller’s office; William H. Groff was a supei’intendent and inspector in the sewer department; Joseph R. Clark was a member of the board of aldermen, and William H. Leaycraft was a member of the common council.</p> <p>The' defendant, Daniel Doody, has for many years been engaged in contracting and building in the city of Brooklyn. In 1896 and 1897 Doody was in financial difficulties and could not take contracts in his own name. During said two years contracts for public work were made with various employees of Doody, but which contracts were really for Doody, and there was paid by said city on said contracts to persons so acting in the interest of Doody about the sum of $200,000.</p> <p>On the 14th day of March, 1898, Doody appeared before the grand jury of the county of Kings and gave evidence in regard to obtaining the said contracts in the name of his employees and in regard to making and carrying out corrupt bargains relating thereto with city officers and employees. The evidence of Doody before the grand jury was to the effect that the city works department not only divided some of the work to be done for the city into small parts for the purpose of giving it to him without advertising for bids, but corruptly aided him in such and other contracts to fraudulently obtain a large amount of money from the city, and that the officers and employees named shared with him in the moneys so fraudulently obtained from the city.</p> <p>The result of the evidence so given by Doody before the grand jury was that Theodore B. Willis and William E. Phillips were indicted for conspiracy; Theodore B. Willis was indicted for perjury ; Bobert W. Fielding was indicted for conniving at the audit and allowance of a fraudulent claim against the city of Brooklyn with intent to defraud; Oscar Knapp was indicted for the same offense; Frederick Milne was indicted for the same offense; Joseph B. Clark was indicted for unlawfully taking money for a vote and act in his official capacity as a member of the board of aldermen; William H. Goff was indicted for taking an unlawful fee for performing an official act; A. Lawrence Jensen was indicted for the same offense; William H. Leaycraft was indicted for unlawfully taking and receiving money as a consideration for a vote and act in his official capacity as a member of the common council, and other indictments were found against the said Fielding and the said Knapp.</p> <p>The defendant in his testimony before the grand jury stated with much detail that he gave to different persons in the city works department the names of various persons to whom contracts were to be let in his interest; that such persons with whom contracts were to be made would wholly represent him and that they would not really have any interest therein. He further stated in substance that to. enable him to get such contracts and to .facilitate the payment of the bills to be rendered therefor, he agreed to pay and did pay Robert W. Fielding ten per cent on each and every contract; that he agreed to pay and did pay Frederick Milne ten per cent on certain contracts; Oscar Knapp ten per cent on certain contracts ; William E. Phillips ten per cent on certain contracts in which he stated Theodore B. Willis was also interested; A. Lawrence Jensen certain specific amounts for each warrant as to certain contracts, . and five per cent on certain other contracts; William H. Goff fifty . dollars each and every week during the time he was doing work under him as superintendent, and to said Joseph R. Clark and said William H. Leaycraft, each an amount on certain contracts as fully set forth in his evidence before the grand jury.</p> <p>On the 16th day of May, 1898, Fielding was tried on one of the indictments against him, and on the trial Doody was sworn for the People and testified to giving Fielding the names of persons who would bid on work for him, and that it was agreed between the said Fielding- and himself that the contracts to be let to such persons would be. the contracts of said Doody. He further testified on the trial to paying Fielding ten per cent ón the contracts in the city works department, which were given to ■ the persons whose names .had been so given to said Fielding, including the contract for repaving Hew Utrecht avenue, and that the ten per cent so paid said Fielding on that and other contracts was paid by him by placing the amount in bills or specie in a drawer of the--desk of said Fielding while Fielding was alone with him in the room and sitting at his desk. Fielding was found guilty under that'indictment and •was sentenced to imprisonment. An appeal was taken from the judgment of conviction which was unanimously affirmed by the Appellate Division. An appeal was then taken to the Court of Appeals. In ■ the meantime one of the indictments against Theodore B. Willis and William E.'Phillips so found by said grand jury was called for trial, and Doody, on said trial, was called as a witness ■and again swore to the arrangements made by him with Fielding, Phillips and others, and to the payment of the percentages in pursuance of such, agreements. Other trials were also had and Doody repeated the testimony in regard to contracts and payments as already stated. .The. Court of Appeals reversed the judgment of conviction against said Fielding (People v. Fielding, 158 N. Y. 542) on grounds not relating to the merits thereof, and ordered a new trial. Doody was informed by the district attorney that the Court of Appeals had reversed the Fieldi/ng case, and Doody replied that it was the best news he had heard for a long time ; that he felt like going out' and getting drunk. He repeated this several times, and the district attorney said, “ Do you sympathize with the defendant ? ” and he said, “ Of course I do. I am sorry to see him convicted.” Fielding was again tried on the 19th day of December, 1899. Prior to that time the district attorney of Kings county had repeated ■interviews with Doody in preparation for the trial of the various cases, in which conversations Doody repeated to him the statements made by him before the grand jury. On or about the 16th day of December, 1899, the district 'attorney had another interview with Doody and informed hirn that the case against Fielding was about to be tried and that he, Doody, would be called as a witness. The material part of the testimony of the district attorney relating to such interview is as follows: “ I reminded him of an interview we had previously had when he was in my office when I received telegraphic news from the clerk of the Court of Appeals informing me of the result of the Fielding trial, that the case was reversed, and in which he expressed very great delight. To my surprise, reminding him of this, I told him I knew he sympathized with the defendant, but he would have to go upon the stand and I wanted to refresh his memory as to the testimony he gave on previous occasions. He said he would be glad to have me read over portions of his testimony, and I read portions as given before the grand jury as given in the previous Fielding trial and in the Willis trial, particularly portions relating to his payments of money to Fielding, and I asked him was that correct, and as he now recollected it, and he said it was. That substantially ended that conversation. I did not'see him between this conversation and when I called him as a witness upstairs, not after the last conversation’which I expected to be the last conversation before he went on the stand.”</p> <p>The second Fielding case was called for trial on the.19th day of December, 1899, and Doody was put on the stand as á witness and testified as follows: “ Q. What conversation did you have upon the subject with Hr. Fielding in reference to parties bidding on work as your representative ? A.. I don’t remember any conversation I had with him on that subject. Q. You remember giving testimony in the Fielding trial heretofore ? A. Yes, sir. * * * Q. Do you state that you do not remember having any conversation, with him with regard to parties- representing you and bidding on work for the city? . * * * . A. What do you wish me to say? Q. State whether you did have such a conversation? A. I don’t remember any such conversation. Q. Did you tell Hr. Fielding the names of parties, state to him the names of parties who would bid upon work as your representative? * * * A. I do not remember having made such a statement to him at all. * * * Q. Did you pay Hr. Fielding any portion of the money for repaving over the water main on New Utrecht avenue ? A. I don’t remember that I did. * * * Q. Did you pay Hr. Fielding any portion of the money for repaving over the water main on New Utrecht avenue ? A. I don’t remember that I did. Q. Eh ? A. 1 don’t remember it. I have no recollection of paying him anything on it. * * * Q. Did you pay Hr. Fielding a portion of the money that you got from this New Utrecht avenue contract? * * * A- I don’t recollect having paid him anything on New Utrecht avenue. * * * Q. I ask you now if you' will state upon your oath that you did not pay Hr. Fielding part of the money that you got for repaving over the water main on New Utrecht avenue, on New Utrecht avenue contracts ? A. I simply say I don’t recollect having paid him anything on this bill. Q. What bill? A. New Utrecht avenue. Q. New Utrecht avenue what ? Do you state upon your oath that you did not pay him' any portion of the money received from that work? * * * A. That is the best answer I can give, I don’t remember. Q. I ask you to answer whether you did or did not ? I want an answer either that you did or that you did not or that you cannot remember. A. I have said I don’t remember. That is what I did say. Q. Will you swear that you did not? A. I simply swear that I do not remember. Q. Answer the question whether you did or not? That calls for an answer yes or no? A. I don’t remember, it is three or four years ago and I don’t recollect what transaction occurred at.that time. * * * Q. You can answer that question. Will you swear that you did not pay him anything % A. The best answer I can give to that question is I don’t remember paying him anything. Q. You must answer that question yes or.no. Will you swear that you did not ? A. Ho, sir, I cannot swear that I did not. * * Q. How I will ask you another question, didn’t you pay him ten per cent ? A. I don’t remember having done so. Q. Can you swear that you did not? A. Ho, sir. Q. Have you not sworn under oath that you did ? * * * A. I don’t remember. Q. Have you not stated under oath that you paid Mr. Fielding ten per cent ? A. I don’t recollect that I did. Q. Do you state that you did not ? A. Ho, sir.”</p> <p>The jury acquitted Fielding. Thereafter and on the 5th, 8th, 10th and 12th days of January, 1900, Doody was at the district attorney’s office and talked about the several contracts mentioned in his evidence given before the grand jury, but stated that he had forgotten whether he paid any money to said Fielding and others. On the 17th day of January, 1900, the grand jury indicted Doody for the crime of perjury. The indictment of defendant states with particularity the indictment of Fielding, and includes therein a copy of the Fielding indictment and then charges that on the trial of Fielding, under that indictment, “ It then and there became, and was material, among other things upon the part of the prosecution in said action, to enquire as to certain relations said to have thereto.fore existed between one Daniel Doody and the said Eobert W. Fielding, the defendant in said action, and to further enquire whether certain conversations had been theretofore had between the said Daniel Doody and the said Eobert W. Fielding in reference to parties as the representatives of said Daniel Doody bidding on work then about to be let and contracted for by the City of Brooklyn, the said Eobert W. Fielding being then and there a public officer, to wit: Deputy Commissioner of City Works in and for said City of Brooklyn, a part of whose duty it was to take part in the examination and making of such contracts, and in the auditing and allowance of claims and demands upon said City of Brooklyn as appears in the indictment hereinbefore set forth and to further enquire whether the said Daniel Doody had, theretofore, at some time prior to the filing of said indictment against the said Eobert W. Fielding, told the said Eobert W. Fielding the names óf certain persons who would, as the representatives of said Daniel Doody, bid upon work and contracts to be given out and made on account of the City of Brooklyn by said Robert W. Fielding as such Deputy Commissioner of City Works as aforesaid, and to further enquire whether he, the said Daniel Doody, had at some time prior to the filing of said indictment paid to the said Robert W. Fielding any portion of the money received by said Daniel Doody from the City of Brooklyn in payment of a claim of his, the said Daniel Doody’s, against the City' of Brooklyn, for repaving over the water main on New Utrecht avenue in the city of Brooklyn.” The indictment then sets forth the trial of said Fielding and that said Doody appeared on said trial as a witness and was duly sworn, and further charges, “ And did then and there being so sworn, falsely, feloniously, willfully and knowingly say and testify among other things in substance that he, the said Daniel Doody, did not then and there remember that he, the said Daniel Doody, had theretofore had any conversation with the said Robert W. Fielding in reference to parties bidding on work for and in the City of Brooklyn as the representatives of said Daniel Doody, and being so sworn as aforesaid the said Daniel Doody did, further, then and there falsely, willfully, knowingly and feloniously say and testify in substance that he, the said Daniel Doody, did not then and there remember that he, the said Daniel Doody, had at any time theretofore told said Robert W. Fielding the names of parties and persons who would as the representatives of said Daniel Doody, bid upon work and contracts to be given out and made on account of the City of Brooklyn by said Robert W. Fielding as such Deputy Commissioner of City Works as aforesaid; and the said Daniel Doody being so duly sworn as aforesaid, did then and there further falsely, willfully, knowingly and feloniously say and testify in substance that he, the said Daniel Doody, did not then and there remember that he, the-said Daniel Doody, had at any time prior to the filing of said indictment, paid to the said Robert W. Fielding any portion of the money received by him, the said Daniel Doody, from the. City of Brooklyn in payment of a claim of his, the said Daniel Doody’s, against the City of Brooklyn for repaving over the water main on New Utrecht avenue in the City of Brooklyn and that he, the said Daniel Doody, did not then and there remember whether lie had or had not" paid any portion of such money to him, the said Robert W -Fielding.'</p> <p>“ Whereas in truth and in fact, he, the said Daniel Doody, then and there well knew and remembered whether he, the said Daniel Doody, had or had not theretofore had a conversation and divers conversations with the said Robert W. Fielding in reference to parties bidding on work for and in the City of Brooklyn as the representatives of said Daniel Doody.</p> <p>“ And whereas, in truth and in fact, he, the said Daniel Doody, then and there well knew and remembered that he, the said Daniel Doody, had theretofore had a conversation and divers conversations with the said Robert W. Fielding in reference to parties bidding on work for and in the City of Brooklyn as the representatives of said Daniel Doody.</p> <p>“ And whereas, in truth and in fact, he, the said Daniel Doody, then and there well knew and remembered whether he, the said Daniel Doody, had or had not told said Robert W. Fielding the names of parties and persons who would, as representatives of him, the said Daniel Doody, bid upon work and contracts to be given out and made for and on account of the City of Brooklyn by said Robert W. Fielding as such Deputy Commissioner of City Works as aforesaid.</p> <p>“ And whereas, in truth and in fact, the said Daniel Doody then and there well knew and remembered that he, the said Daniel Doody, had told said Robert W. Fielding the names of-parties and persons who would, as representatives of him, the said Daniel Doody, bid upon work and contracts to be given out and made for and on account of the City of Brooklyn by said Robert W. Fielding as such Deputy Commissioner of City Works as aforesaid.</p> <p>“ And whereas, in truth and in fact, the said Daniel Doody then and there well knew and remembered whether he, the said Daniel Doody had or had not, at some time prior to the filing of said indictment, paid to the said Robert W. Fielding a portion of the said money received by him, the said Daniel Doody, from the City of Brooklyn in payment of a claim of his, the said Daniel Doody’s, against the City of Brooklyn for repaving over the water main on Rew Utrecht avenue in the City of Brooklyn.</p> <p>“ And whereas, in truth and in fact, the said Daniel Doody then and there well knew and remembered, that he, the said Daniel Doody, had, at some time prior to the filing of said indictment, paid to the said Robert W. Fielding a portion of the said money received by him, the said Daniel Doody, from the City of Brooklyn ill payment of a claim of his, the said Daniel Doody’s, against the Oity of Brooklyn for repaving over the water main on ISTew Utrecht avenue in the Oity of Brooklyn.</p> <p>“ And whereas, in truth and in fact, the testimony so given as aforesaid by him, the said Daniel Doody, on the day and year aforesaid, at the Borough, Oity and County aforesaid was in all respects willfully and knowingly false, perjured and untrue.</p> <p>“ And whereas,, in truth and in fact, the said Daniel Doody, on the nineteenth day of December, 1899, and at all other days and times, well knew that the testimony aforesaid so given by him, the said Daniel Doody, upon said trial as aforesaid, and so sworn to: by him as aforesaid, was in all respects willfully false, untrue and perjured.” .</p> <p>The trial of the indictment against the defendant Doody came: on to be heard in the Supreme Court on the 10th day of December, 1900, and on such trial the People offered in. evidence a copy of; the testimony of Doody before the grand jury; a copy of the .testimony of Doody on the first trial of Fielding; a copy of the testimony of Doody on the said trial of Willis and Phillips ; evidence of the statements made by Doody to the district attorney prior to the second trial of Fielding; a copy, of the testimony of Doody on the second trial of Fielding; .the statements of Doody to the district attorney subsequent to the second trial of Fielding, and evidence of the statements made by Doody to the former district attorney of the. county of Kings, and then rested.</p> <p>The defendant produced members of his family, employees and associates to testify to acts and conversations of the defendant occurring a short time previous to his trial, also several experts who testified in substance that Doody was suffering from paresis. The People then produced witnesses to rebut the evidence as to the condition of the defendant’s mind and memory, and an expert who testified that the defendant was not suffering from paresis and that the alleged evidences of such disease were, the results of, the defendant’s " shamming. The case was then submitted to the jury who found the defendant guilty as charged in the indictment. From the judgment of conviction this appeal was taken.</p>

Appeals by the claimants, George R. Cole and others, from an order of the Supreme Court, made at Dutchess County Special Term and entered in the office of the clerk of the county of Putnam on the 9th day of June, 1900, reversing and setting aside the fourth separate report of the commissioners of appraisal herein in certain respects.

Appeal by the defendants, the Nassau Electric Railroad Company and another, from a judgment of the Supreme Court in each of the above-entitled actions in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 28th day of August, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Benjamin W. Brady, from á judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 5t'h day of October, 1901, upon the verdict of a jury, and also from an' order entered in said clerk’s office on the 26th day of September, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of New York, from' a judgment of the Supreme Court in favor of the plaintiffs and of certain of .the defendants, entered in the office of the clerk of the. county of Richmond on the 5th day of June, 1901, upon the decision of the court rendered after a trial at the Richmond Special Term.

<p>Negligence — evidence as to the similarity of afcetus of which the witness was delivered, to that of the party injured—contradicting a party’s own witness — scope of hypothetical questions.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, a married woman, in which the plaintiff alleges that the injuries produced a miscarriage,' a witness who had .suffered a miscarriage herself and who had attended others who had undergone a similar experience and had seen the foetus of which she had been delivered, as well as that of which the plaintiff had been delivered, may testify that the foetus in the plaintiff’s case was similar to that in her own case.</p> <p>A party calling a witness is generally precluded from impeaching his general reputation for truth and may not impugn his credibility by general evidence tending to show him to be unworthy of belief, but he is not precluded frcim proving the truth of any particular fact by any other competent testimony even though it be in direct contradiction tó what such witness may have testified.- This is true, not only where it appears that the witness was innocently mistaken, but even where the evidence may collaterally have the effect of showing that he was generally unworthy of belief.</p> <p>It is not necessary that the facts alleged in a hypothetical question shall be established beyond all controversy; it is enough if they are supported by some evidence. In asking hypothetical questions for the purpose of Obtaining the ' opinions of experts, counsel may assume facts as they claim them to exist, and ; an error in the assumption does not make the interrogatory objectionable if. it is within the possible or probable range of the evidence.</p> <p>A hypothetical question is not improper simply because it includes only part' of the facts in evidence; or because it is based upon the assumption that the examining counsel’s theory of the facts is the correct one.</p>

Appeal by the defendant, Harry M. Smith, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered-in the office of the clerk of the county of Kings on the 20th day of December, 1901, directing an accounting before a referee therein named.

Appeal by the plaintiff, Salvatore Peggo, 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 Dutchess on the . 2d day of August, 1901, denying the plaintiff’s motion to amend . the judgment entered in the action.

<p> Error in admitting incompetent evidence, when disregarded. </p> <p>On an appeal from a judgment rendered after a trial before a referee or court without a jury, an error in receiving incompetent evidence may be overlooked where competent evidence was given to establish the essential facts upon which the judgment is based.</p>

Appeal by the defendant, The Brooklyn Union Gas 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 6th day of July, 1901, upon the verdict of a jury for $3,250, and also from an order entered in said clerk’s office on the 12th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Frederick Morich and Paul Morich, individually and as executors, etc., of Paul Morich, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 18th day of April, 1901, upon the decision of the court rendered after a trial at the Nassau Special Term. ■

Appeal by the defendant, Milo M. Belding, Jr., from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rockland on -the 21st day of May, 1901, upon' the verdict of a jury, and also from an order entered'in said clerk’s office on the 1st day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Delaware, Lackawanna and Western 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 26th 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 24th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Louis Gray, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the-county of Kings on the 26th day of July, 1901, upon the verdict of a jury, and also from an order bearing date the 6th day of September, 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, the Nassau Electric 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 15th day of June, 1900, upon.the verdict of a jury for $2,250, and also from an order entered in said clerk’s office on the 26th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

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 Westchester on the 6th day of July, 1901, upon the verdict of a jury for $20,000, and also from an order entered in said clerk’s office on the 18th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Katherine Y. Whitaker, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 13th 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 16th day of December, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Arsen Arsene and another, trading under the firm name of A. Arsene & Son, 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' 3d day of January, 1902, appointing a receiver in this action.

<p>Nuisance—a dynamite magazine located within 1,000 feet of a number of inhabited houses.</p> <p>A dynamite magazine located on the outskirts of an unincorporated village, adjacent to a public highway leading to the village, at a point where there áre a number of inhabited houses within a radius of 1,000 feet thereof, constitutes a private nuisance, the maintenance of which will render the owner thereof liable for personal injuries sustained by a person sitting in a house nearly 1,000 feet distant from the magazine in consequence of the explosion of the dynamite.</p> <p>Woodward, J., dissented.</p>

Appeal by the defendants, William Brookfield and another, as receivers of the Hecker-Jones-Jewell Milling Company and of all its property and assets within the southern district of New York in the second judicial circuit of the United States, 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 April, 1902, denying the defendants’ motion for a bill of particulars.

Appeal by the defendant, John E. Corwin, from a judgment of the County Court of Orange county in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 3d day of April, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of April, 1901, denying the defendant’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>Power of sale — when it does not indicate an intent to charge legacies upon the real estate.</p> <p>The 1st clause of a will provided, “ After my lawful debts are paid, I give to my niece Margaret Ennis, my niece Mary Byan and to my grandniece Agnes Carberry, all my real estate at Far Bockaway, Borough of Queens, State of New York, being situated on the westerly side of Central Avenue, between Mott and Cornaga Avenues, to hold the same as tenants in common, to them, their heirs and assigns forever.” The testatrix then made several bequests aggregating §3,800. She then devised her residuary estate to her grandniece. The next and concluding clause was as follows: “X. I hereby authorize my executors, or whoever of them may qualify, to sell or mortgage my real estate if in their judgment it is necessary to carry out the purpose and object of this will.”</p> <p>The value of the testatrix’s personal property was $4,339.71. Her debts amounted to §500, and the executor incurred legal expenses amounting to more than §500 in opposing a contest of the will.</p> <p>In an action brought by one of the devisees mentioned in the 1st clause of the will to partition the real estate devised therein, the trial justice dismissed the complaint on the ground that the clause containing the power of sale showed that it was the intention of the testatrix to charge her real estate with the payment of the legacies and that this power was imperative inasmuch as the proof indicated that the personal property would be insufficient to pay the debts and legacies.</p> <p>Held, that the partition suit could be maintained;</p> <p>That the power of sale was discretionary in its terms and that there was nothing in the extrinsic circumstances of the case to show an intention on the part of the testatrix to charge the legacies upon her real estate;</p> <p>That the limitation “ after my lawful debts are paid,” contained in the 1st clause of the will, did not extend to the payment of the legacies.</p> <p>Goodrich, P. J., dissented.</p>

Appeal by the defendant, Morris Sohleissner, 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 11th day of February, 1902, upon the decision of the court rendered after a-trial at the Kings County Special Term, decreeing to the plaintiff a separation from the defendant and awarding her alimony at the rate of twenty dollars per week.

<p>Insolvent building and loan association — right of a member called upon to pay a note to it, to have the amount to be paid him on his stock approximately determined and credited.</p> <p>Where a member of- an insolvent building and loan association, who is indebted to the association upon a note secured by a number of shares of the stock of the association, will be entitled to receive a dividend from the assets of the association upon the amount of the payments made by him on his stock, the fact that the amount of such dividends cannot be presently definitely ascertained . does not entitle the receiver of the association to demand immediate payment of the full amount of the note and interest and oblige the member to await the final distribution of the corporate assets by the receiver before he can be allowed anything on account of his claim against the association.</p> <p>In such a case the amount of the dividend to which the member will be entitled should be approximately determined and deducted from the amount due upon the note. The fact that it is difficult, provided it is not impossible, to mMce such an approximation,, will not defeat the member’s right to the offset.</p>

Appeal by the defendants, The Long Island Railroad Company 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 Kings on the llt-li day of July, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the defendant, The Village of Port Chester, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 14th day of January, 1902, upon the decision of the court rendered after a trial at the Westchester Special Term overruling a demurrer to the complaint.

Appeal by the defendant, John McKay, from an order of the Court of Special Sessions of the second division of the city of New York, entered on the 22d day of November, 1901, adjudging the defendant to be the father of a bastard child born to one Emily Funk.

<p>Appeal by the defendant, Bushanna Goodwin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 8th day of January, 1890, upon the decision of the court, rendered after a trial at the Queens County Special Term, annulling the marriage between the parties to the action.</p>

Appeal by the plaintiffs, Jacob Fritz 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 Hew York on the 20tli day of Hovember, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term. This appeal was transferred from the first department to the : second department.

<p>Lien of the owner of land upon horses straying from the highway upon it — effect of a.statement by such owner that the property would be disposed of according to law.</p> <p>In an action to replevin two horses owned by the plaintiff, it appeared that the horses had strayed from the highway upon the defendants’ premises, and that the defendants took possession of them under a claim that they were entitled to a lién thereon. After the d'efendants took possession of the horses, the plaintiff demanded the return thereof, but did not make a legal offer to redeem them.</p> <p>The defendants claimed to have acted under sections 120 and 121 of the Town Law. (Laws of 1890, chap. 569), by which sections they were required, if the animals were not redeemed within five days, to file their notice of lien. Before the expiration of the five days the plaintiff had instituted the replevin action. Held, that a judgment in favor of the plaintiff should he reversed;</p> <p>That the defendants w;ere entitled to a lien upon the property under the provisions of the Town Law;</p> <p>That the fact that, after the seizure of the horses, one of the defendants told the plaintiff that he had telephoned to a justice of the peace and that the property would he disposed of according to law, did not preclude the defendants from • defending their acts in the premises, on the basis of the Town Law.</p>

<p>Appeal by the- defendant, The Crystal Water Company of Edge-water, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 4th day of December, 1901, upon the decision of the court rendered after a trial at the Richmond Special Term.</p>

Appeal by the defendants, Abraham Quackenbush 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 Richmond on the 18th day of October, 1901, upon the decision of the court rendered after a trial before the court without a jury at the Richmond Trial Term.

<p>Appeal by the plaintiff, John E. Andrus, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 19th day of December, 1900, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits.</p> <p>The action was brought to establish a right of way in the plaintiff through a strip óf land owned by the defendant, The National Sugar Refining Company, and to enjoin the defendant from obstructing the same by means of a railroad siding.</p> <p>The language of the conveyances conferring the alleged right of way is as follows:</p> <p>“ Reserving to the parties of the first part, their heirs and assigns forever, a right of way over so much of the above-described premises as lies between the above-mentioned westerly line of the R. R. Co.’s land and another line to be drawn parallel with said R. R. Co.’s land and 17 feet distant westerly therefrom.”</p> <p>The plaintiff has succeeded to the rights of Rich and Scrymser, the original patentees from the State, referred to in the opinion, in the lands in question.</p>

<p>Criminal trial— charge as to the right of the jury to consider the punishment of the offense — change that if the witnesses for the prosecution a/re believed, the accused, is guilty — who should show that an error is or is not prejudicial—grounds for the reversal of a conviction.</p> <p>The judge, presiding at the trial of a person charged with the crime of keeping a disorderly house, after stating to the jury that juries in criminal cases often hesitate to convict, because they fear some undue punishment will be inflicted upon the criminal, and that it is improper for'them to do so, continued as follows: “ Now, this crime charged here is a misdemeanor, and it being a misdemeanor, is, of course, not of the character of those trials which you have heard here, which have involved charges of crime far different and far more severe in their punishment than the crime now charged.”</p> <p>Held, that the statement was calculated to lead the jury into the very error which the judge cautioned them against, and also permitted them to infer from the fact that the crime was a misdemeanor with but a comparatively light punishment, that a different rule applied from that which obtained upon the trial of more heinous offenses which admitted of severer punishments.</p> <p>In such a case it is error for the court to charge: “ Now, when you have determined what the truth is in this case, you have determined the whole thing. When you have determined who it is that tells the truth, you have determined the guilt or innocence of these parties," as the evidence given by the witnesses for the prosecution might be believed by the jury and yet not be sufficient to remove a reasonable doubt as to the guilt of the defendant.</p> <p>Upon an appeal from a judgment of conviction the defendant need not show that he was prejudiced by errors committed upon the trial, but it is incumbent upon the prosecution to show that the defendant could not possibly have been injured by them.</p> <p>Upon such an appeal the court may, in its discretion, set aside the conviction because of statements made by the trial judge in his charge, even though such statements did not lay down an absolutely erroneous rule of law, provided that the appellate court can see that such statements improperly influenced the jury.</p>

<p> Assault on a ma/rried woman—proof that the man charged therewith was not lining with his wife is incompetent—exemplary damages. </p> <p>In an action brought by a married woman to recover damages for an assault and battery, committed by the defendant under such circumstances as warranted a finding that the defendant’s purpose was to effect a rape, it is error to allow the plaintiff to show, on the defendant’s cross-examination, that the latter was not living with his wife at the time the offense was committed.</p> <p>In such a case the jury may properly award exemplary damages.</p> <p>Bxrschberg, J., dissented.</p>

<p>Appeal by the defendant, William M. Dudgeon, as executor of and trustee under the last will and testament of Richard Dudgeon, deceased,- from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of January, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

<p>Appeal by the defendant, Bridget Cronin, individually and as administratrix of the estate of Michael Cronin, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 18th day of March, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of March, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action is brought to recover goods sold by the plaintiff’s intestate to the defendant.</p>

Appeal by the defendants, Harry Taylor 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 Nassau on the 6th day of April, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, reforming a certain contract made between the plaintiff and the defendant Harry Taylor.

<p>Appeal by the -defendant, Albert W. Brown, as receiver of the property of Richard A. McNeely, 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 13th day of February, 1902, denying said defendant’s motion to vacate or modify an order theretofore entered in the action appointing a receiver of the rents and profits of the mortgaged premises described in the complaint in the action.</p>

Appeal by the plaintiff, Delia Swanton, as administratrix, etc., of ■ Eobert Swanton, Junior, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Eichmond on the 10th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the . 10th day of March, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, George S. Ingraham and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 17th day Of February, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining demurrers to the complaint.</p>

<p>Appeal by the plaintiff, Anna Maria Peters, from a judgment of the Supreme Court in favor of the defendant Frederick F. Eden, entered in the office of the clerk of the county of Kings on the 8th day of January, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint as to said defendant.</p>

Appeal by the petitioner, Margaret Greenwood, from a decree of o the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 19th day of June, 1901, denying probate to an instrument purporting to be the last will and testament of Annie Brewster, deceased.

Appeal by the defendant, Gustav Dreyer, from a final order in summary proceedings to recover the possession of real property, made by the Municipal Court of the city of New York, borough of Brooklyn, and entered on the 14th day of January, 1902.

Appeal by the defendant, Albert Adelmann, from a judgment of the Municipal Court of the city of Few York, borough of Queens, in favor of the plaintiff, entered on the 12th day of March, 1902.

<p>Conversion of clams planted by a third person in Jamaica, bay on land leased by the State to one who had not staked it out — the lessee may remove, but cannot appropriate, the clams.</p> <p>Where the State of New York leases a plot of land under the waters of Jamaica bay for the purpose of the cultivation of shell fish and, before the land has been staked out as required by the lease, a third person, in ignorance of the existence of the lease, plants a quantity of clams upon the plot, the lessee may remove them or compel the third person to remove them, but he has no right to appropriate them to his own use.</p>

<p>Appeal by the plaintiff, James S. McQuillen, from a; judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 17th day of February, 1902, upon the decision of the court, dismissing the complaint upon the merits.</p>

Appeal by the defendant, Claude V. Gentry, from a judgment of the Municipal Court of the city of New York,, borough of Brooklyn, in favor of the plaintiff, entered On the 20th day of November, 1901, upon the decision of the court.

<p>Statute of Limitations — effect of payments by executors on claims against the estate— payments made by executors with, the consent of all parties in interest on claims barred by the statute—right of subrogation, of parties advancing money to the executors, to the claims paid therewith.</p> <p>Partial payments made by executors upon a promissory note, which was a valid claim against the testator’s estate at the time of his death and at the time when such payments were made, will prevent the Statute of Limitations from running against the note for a period of six years from the time of each payment.</p> <p>Where executors apply moneys borrowed upon their promissory note to the payment of valid claims against the estate, the note- is a personal liability of the executors and cannot be enforced against the estate directly. In such a case the executors are entitled to be reimbursed out of the estate to the extent of the borrowed moneys which they have applied to the payment of valid claims against the same, and this being so the person who advanced the moneys is entitled, in the event of the failure of the executors to repay the same, to be subrogated to the rights of the executors and to compel payment of his claim out of the estate.</p> <p>Where the executors, with the consent of the adult beneficiaries under the will, pay a claim against the estate which was known to all parties to have been barred by the Statute of Limitations, with moneys borrowed for that purpose and give their promissory note to the lender, the money so loaned is not a valid obligation against the estate, but is a valid obligation against the beneficiaries on whose behalf it was borrowed in proportion to the amount which each has received from the estate.</p> <p>An action is maintainable, under sections 1837 to 1860 of the Code of Civil Procedure, to establish the claims of such claimants, to subrogate them to the rights of the creditors of the estate, who have been paid with the money advanced to the executors by such claimants, to have their claims adjudged to be liens upon the real property belonging to the estate, and if the proceeds thereof be insufficient to be paid by ¡the devisees and legatees under the will of the decedent.</p> <p>An executor or administrator has no authority to allow or pay a claim barred by the Statute of Limitations, nor will a partial payment by an executor or administrator on a claim so barred revive the demand against the estate.</p>