Volume 72 — New York Supplement

<p>Appeal from Chemung county court.</p> <p>Action by Fred Le Valley and others against Johanna H. Overaclcer and another. From a judgment in favor of plaintiffs,, defendant Johanna H. Overaclcer appeals.</p> <p>On the 11th day of May, 1897, the appellant purchased of one John Bridgeman a lot at the comer of Washington avenue and Hoffman street in the city of Elmira. During the year 1897 a house was built on said lot. George W. MacOallum, a contractor and a son of appellant’s stepfather, Thomas MacGallum, did the work, either under a contract with the appellant or as agent for her. The plaintiffs are co-partners doing business in Elmira as plumbers and gas fitters, under the firm name of Le Valley, McLeod & Oo. At the request of said George W. MacOallum the plaintiffs performed work in said house and furnished material therefor. On the 6th day of May, 1898, there being a balance of $185 remaining unpaid to them on account of said work and materials, the plaintiffs duly filed a mechanic’s lien in the clerk’s office of the county of Chemung against ■said property and against said Johanna H. Overaclcer as the owner thereof. The said lien states: “The name of the owner of the real property against whose interest therein the lien is claimed is Johanna H. Overacker, and the interest of the said owner, as far as known to these lienors, is that she has title in fee to said premises. The name of the person by whom these lienors were employed is George W. MacCallum, who was acting as the agent for Johanna Overacker, the owner of the said real estate, and the said labor, services, and material wer.e furnished with her full knowledge and consent, and under her authority.” This action was commenced to foreclose said lien, said George W. MacCallum being joined with the appellant as a defendant, the complaint alleging that he is a tenant residing on said premises.</p>

In the matter of the opening of Fulton avenue from Spring Place to the boundary line of the Twenty-Third ward. Motion to confirm commissioners’ report.

Appeals from trial term, Queens county. Consolidated actions by Thomas H. Mulholland and by IVfary J. Mulholland against Edward J. McKeever. From judgments in favor of each of the plaintiffs, and orders denying defendant’s motion for a new trial, he appeals.

<p>A-ppeal from municipal court, borough of Brooklyn.</p> <p>Action by William A. F. Duff against Severio Gallo, impleaded with another. From a judgment in favor of defendant .Severio Gallo, plaintiff appeals.</p>

Applications by the people, on relation of Warschauer, Thompson, and Goldsmith, for mandamus against William Dalton, commissioner of water supply for New York City, for audit of claims for back pay on reinstatement of petitioners to civil service positions.

Action by Coceo Venanzio, by his guardian ad litem, Salvatore Venanzio, against Levi C. Weir, as president of the Adams Express Company. From an order denying a motion to set aside an order requiring security for costs, plaintiff appeals.

Action by .Kate Deveney against Lawrence J. Head, as executor of the last will of Mary Monohan, deceased. From an order granting a motion made by plaintiff to resettle the case on appeal, defendant appeals.

<p>1. Life Insurance—Age of Deceased—Sufficiency of Evidence.</p> <p>In an action on a life policy, where the sole issue was whether deceased .was born in 1836, or in 1846, as stated in his application, several witnesses for defendant company testified that deceased was born in a. certain parish in T., Ireland, and was the son of L. and wife, whose maiden name was P., but that there were several families' by the name of L. and P. residing in that parish. The parish priest testified to entries in the parish register showing that “deceased was the son of Daniel and Nora Lee, and was baptized in 1836,” and giving names of deceased’s brothers and sisters. For plaintiff, relatives of deceased testified that the first child of deceased’s parents died in infancy, and was baptized by the same name as deceased, and that they knew deceased’s brothers and sisters, and did not give their names as they appeared on the parish register. Meld, ■ that the evidence raised such an issue of fact as to whether deceased was not the second son baptized under the same name, or was the son of a different Daniel and Nora'Lee, that the verdict of a jury thereon for plaintiff would not be interfered with for insufficiency of evidence.</p> <p>2. New Trial—Newly-Discovebed Evidence.</p> <p>A new trial on the ground of newly-discovered evidence will not be granted, where the evidence is merely cumulative, and it is improbable that it would have changed the result had it been in' the case.</p>

<p>Partnership—Dissolution—Receivers—Security Pending the Action.</p> <p>Where in an action to dissolve an alleged partnership there is doubt as to plaintiff being a partner, and it is also questionable whether the application for a receiver discloses such a condition of the business as to require a receiver, the application should be denied; and, if the court interferes at all, it should be only to require security of the defendant in charge of the business that he would obey the orders of the court pending the action, and the judgment therein, as provided by Code Civ. Proe. § 1947.</p>

<p>Payment—Conflicting Evidence—Appeal.</p> <p>Defendant pleaded payment in full of bills on which he was guarantor. A check for part of the amount, indorsed “in full to date,” and a receipted bill for the full amount, were introduced. There was evidence that the receipt and check were fraudulently altered. The evidence was conflicting, field, that a verdict for plaintiff would not be disturbed.</p>

Action by Joseph Loader and Henry Loader, composing the firm of Joseph Loader & Son, against the Brooklyn Chair Company, a corporation. From a judgment in favor of defendant, plaintiffs appeal.

<p>1. Constitutional Law—Inconsistent Remedies—Due Process op Law.</p> <p>Consol. Act, § 992, as amended by Laws 1893, e. 660, provides that a person may have an action for damages caused by the widening or opening of a street by order of the commissioners, and that the remedy by action should not be given, but the summary remedy of mandamus substituted. An amendment in 1893 added the provision as to the substitution of the remedy by mandamus. Eeld, that the amendment would control, and,section 992 was not unconstitutional, as amounting, by reason of its inconsistency, to a provision for the taking of property without due process of law.</p> <p>2. Same—Street Improvement—City Debt—Appointment op Commissioners.</p> <p>An order for the appointment of commissioners of estimate and apportionment for the widening of a street will not be refused because the cost of the improvement may exceed the limit of the city debt declared by Const, art. 8, § 10, where the official report of the comptroller shows that the city debt has not reached the limit, and that the cost has not yet been determined, and that it is impossible at the time to estimate it, and where affidavits indicate that there will be an ample margin to pay for all city indebtednesses.</p>

<p>1. Rape—Evidence—Sufficiency.</p> <p>On a prosecution for rape, testimony of the prosecutrix as to the commission of the offense, corroborated by that of a sister who was near where the crime was alleged to have been committed, with statements by accused from which the jury might find some confession of guilt, is sufficient to warrant a conviction.</p> <p>2. Same—Withdrawal of Objections.</p> <p>Where, on a prosecution for rape, no evidence has been admitted, over accused’s objection, from which an assault on prosecutrix’s sister could be fairly inferred, a contention by accused that he was forced to withdraw his objection to such evidence, to present his cause fairly to the jury, because evidence had already been admitted to prove such crime, is without merit.</p> <p>3. Same—Res Gestae.</p> <p>On a prosecution for rape, evidence as to accused’s condition when he came to the house is competent as res gestee of the assault afterwards made.</p>

<p>On motion for reargument.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Ranold H. Macdonald against Caroline E. Manice. From an order vacating a warrant of attachment, plaintiff appeals.</p>

Action by Mary Curtin against the Metropolitan Street Railway Company. Plaintiff alleged that she was thrown to the ground with great force, so as to seriously injure her spine, strain and bruise her back, and inflict severe internal injury, “some of which injuries she is informed and believes are of a permanent character.” From an order denying a motion for a bill of particulars, defendant appeals.

Action by Adolph Rivelson agajnst Joshua Silverstein and others. Prom a-judgment in favor of defendants, plaintiff appeals.

Suit by H. Koehler & Co. against Patrick J. Kennedy and others. From an order continuing an injunction and appointing a receiver pendente lite, defendants appeal.

Action by the diocese of Buffalo against the New York Central & Hudson River Railroad Company. Appeal from an order denying application for an injunction pendente lite.

^Action by Lancelot M. Berkeley, as substituted trustee under the will of Patrick H. Kennedy, deceased, against Mary Kennedy, as administratrix of the estate of Michael Kennedy, deceased, and others. . _ From an order vacating an order vacating a judgment, and _ opening the default of Jane Kennedy, defendant, she appeals.

Action by Henry Kune against the Fitzgerald Bros. Brewing Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Action by the trustees of the freeholders and commonalty of the town of Southampton against Nathan C. Jessup. Judgment for plaintiff.</p>

<p>Personal Injuries—Street Railways—Assault on Passenger—Municipal Court—Jurisdiction.</p> <p>Where plaintiff boarded the front platform of defendant’s car while it was in motion, and was then seized by the gripman, and thrown into the street, an action for damages was for the neglect of a duty which was owing to the plaintiff as a passenger, and was not a mere action for personal assault, so as to deprive the municipal court of jurisdiction.</p>

<p>1. Action—Compromise by Agreement—Consideration—Action by Assignee.</p> <p>Where, before the return day of a summons, defendant paid plaintiff a less sum than demanded, together with costs, on an agreement that the suit would be discontinued, but subsequently plaintiff took judgment, whereby defendant was obliged to pay additional costs, etc., an assignment by defendant of the cause of action, resulting from plaintiff’s breach of the agreement, entitled the assignee to maintain an action thereon, irrespective of the consideration for the assignment.</p> <p>8. Same—Pleading.</p> <p>A complaint alleged that plaintiff, having been sued by defendant for the recovery of a certain sum claimed to be due, paid defendant a less sum on an agreement that the suit would be dismissed, but that subsequently defendant took judgment, whereby plaintiff was obliged to pay additional costs, etc. Meld that, as the complaint contained no admission that the original debt existed, but only that a sum was claimed, the rule that a payment by a debtor of a 'sum less than the debt will not extinguish a claim for the balance did not render the complaint demurrable as failing to state a cause of action.</p>

<p>Appeal from trial term, Queens county.</p> <p>Action by John Schwan against the city of New York. From á judgment in favor of defendant, plaintiff appeals.</p>

Action by Katharine V. Whitaker against the Staten Island Midland Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

In the matter of the estate of Nathan F. Graves. From an order setting aside an order assessing a transfer tax on a bequest to trustees for the purpose of founding and maintaining a charitable institution (70 N. Y. Supp. 727), both the executors and trustees and Erastus C. Knight, as comptroller of the state, appeal.

<p>1. Landlord and Tenant—Former Lease—Execution by Attorney—Sufficiency of Evidence.</p> <p>Plaintiff testified that defendant held real property under a verbal lease between themselves. This the defendant denied, and introduced a written lease to him, executed on behalf of C., from whom plaintiff had purchased the property, dated prior to such purchase. This lease was signed in the name of plaintiff and P., purporting to be attorneys for that purpose, both names being signed by P., and plaintiff’s without his authority, knowledge, or consent. C. had executed a power of attorney under seal to plaintiff and P., but neither this instrument nor any evidence of its nature was produced. There was some evidence tending to show that 0. repudiated this lease, and that defendant was so informed in writing. Held, that the evidence was insufficient to establish the written lease.</p> <p>3. Same—Cross-Examination—Discrediting Lease—Exclusion of Evidence.</p> <p>Questions asked defendant on cross-examination for the purpose of discrediting the lease and to indicate a doubt in his mind as to its validity, as to whether he inquired into P.’s authority to execute the lease, and as to whether he had any knowledge of such authority, were improperly excluded.</p> <p>8. Same—Examination of Witnesses—Bona Fides of Lease—Circumstances of Execution—Exclusion of Evidence.</p> <p>It was improper to exclude questions asked P., the assumed attorney, as to whether his principal ever saw or had any notice of the lea'se; when she learned of it, and if she did not inform defendant that she would not ratify it; why he signed the lease in C.’s name; if plaintiff knew this; if so, when did he learn it; and generally as to the circumstances attending the execution of the lease,—such inquiries being pertinent to the good faith of the lease.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Michael J. Dady against John H. O’Rourke, impleaded ‘ with the Hamilton Trust Company. From an order denying defendants’ motion to fix the amount of a written undertaking to stay the execution of a judgment in favor of plaintiff, defendant O’Rourke appeals.</p>

. Action by Estelle L. Jarvis against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff and an order •denying a new trial, defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by William H. Brock against James Surpless and others. From an order directing plaintiff to disclose account books belonging to a foreign corporation not a party to the action, the plaintiff appeals.</p>

<p>Appeal from municipal court, borough of Brooklyn, First district.</p> <p>Action by Marie Molt against Kate Baumann. From a judgment in plaintiff’s favor, defendant appeals.</p>

<p>Appeal from municipal court, borough of Queens, Second district.</p> <p>Action by Elmore T. Reilly against William Connors. From a judgment for plaintiff in the municipal court, defendant appeals.</p>

Proceedings on the proposed opening and laying out and construction of Nineteenth street, in the city of Niagara Falls, across the tracks of the New York Central & Hudson River Railroad Company and other railroad companies. From a decision of the common council of the city of Niagara Falls to take the street across the tracks, and from its determination that such opening is a public necessity, the railroad companies appeal.

Summary application by Abram H. Dailey and others to compel John M. Wellbrock, an attorney, to pay over money. From an order of the special term of the supreme court appointing a referee to report the facts with his opinion, John M. Wellbrock appeals.

<p>1. Mortgages—Execution— Fraud—Intoxication.</p> <p>Where a mortgagor, who had subsequently executed a deed to the premises, claimed that the mortgage was fraudulently obtained, and that he was so intoxicated at the time of its execution as not to realize the nature of the transaction, but the mortgage and deed were both in evidence, and the signature to the mortgage resembled that to the deed, and was even more legible, while the mortgagor testified that his writing, when intoxicated, was scarcely legible, and there was in evidence a letter, written by the mortgagor two days before the date of the mortgage, admitting his indebtedness to the mortgagee, the evidence sustained findings that the mortgagor was competent to understand what he was doing, and that the mortgage was given for valuable consideration.</p> <p>ii. Same—Evidence—Payments.</p> <p>Where, in an action to foreclose a mortgage, there was no defense of payment set up in the answer, it was not error on cross-examination of plaintiff to exclude evidence that the mortgagor had paid plaintiff money since the date of the mortgage.'</p> <p>Woodward and Sewell, JJ., dissenting.</p>

<p>1. Appeal and Error—Preservation of Error—Reception of Evidence.</p> <p>Alleged error in tlie reception of evidence will not be considered on appeal, where it was received without objection on the trial.</p> <p>2. Judgment—Improper Relief—Premature Bringing of Action.</p> <p>‘Where, in an action for the repair of a wagon and for damages to a sleigh, the defendant admitted the liabilities, but alleged that plaintiff had agreed to wait for his pay for the wagon until defendant’s suit against the city for causing the accident in which it was injured had been settled, it was error to render judgment for defendant; the proper remedy being a dismissal of the complaint as to the first cause of action, and judgment for plaintiü as to the second.</p>

Action by the Carter White Lead Company against Lewis H. Pounds. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Mary Edlich against Augusta Gminder. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Certiorari by the people, on the relation of George Scheel, against John Guilfoyle, as commissioner of buildings for the borough of Brooklyn, to review the action of respondent in removing relator from the position of inspector of buildings.</p>

Action by Frederick G. Winn against the New York Central & Hudson River Railroad Company. From a judgment setting aside verdict for plaintiff and dismissing complaint, plaintiff appeals.

Action by Ella L. Hurrell against Henry J. Hurrell, individually and as executor of the last will and testament of Lucy Hurrell, deceased: From a judgment in favor of defendant, plaintiff appeals.

<p>Appeal from court of special sessions of Second division of city of New York.</p> <p>Peter Colletta was convicted of assault, and appeals.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by John Mullady against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1. Attachment—Action on Bond—Measure op Damages.</p> <p>The measure of the owner’s damages in a suit on an attachment bond is not the value of the property sold under execution in the same action, but only the costs awarded on vacation of the attachment warrant, and interest on the value of the property for the time it was held under the attachment; it not appearing that in vacating the attachment the court held it void ab initia.</p> <p>8. Same—De Minimis Non Curat Lex.</p> <p>In a suit on an attachment bond, where a judgment for plaintiff was correct, except in failing to allow him interest on $400 for 15 days, the error was too insignificant to furnish ground for reversal.</p>

Action by Caroline Quade against Peter Bertsch, individually and as executor and trustee under the will of William Broistedt, and others. From a judgment for defendants, plaintiff appeals. This is an appeal from the judgment of the special term in an action brought to declare certain portions of the will of William Broistedt, deceased, invalid, in that they unlawfully suspended the ownership of personal property.

<p>Injury to Servant—City Ordinance—Violation by Master—Obvious Risk— Assumption by Servant.</p> <p>Plaintiff, a workman for three months in defendant’s employ, slipped and fell through an opening for an elevator. There were no guard rails about the opening. Plaintiff was familiar with the spot, and accustomed to use the elevator in going to and from the platform from which he fell. A city ordinance required such opening to have guard rails. Held, that the absence of rails in violation of the ordinance was an obvious risk, the danger from which plaintiff assumed by continuing in defendant’s employ.</p>

<p>Appeal from Westchester county court.</p> <p>Action by Walter L. Burt against William H. Gatlin. From an. order setting aside a verdict in plaintiff’s favor and granting a new-trial, he appeals.</p>

<p>Practice—Additional Parties—Effect op Previous Adjudication.</p> <p>An order making the wife of defendant a party to- an action to recover a balance due to plaintiff, as trustee of defendant’s wife, under a separation agreement which the husband seeks to have canceled, should not be reversed on the ground that defendant has no chance of success in his effort to have the agreement canceled, because of a previous decision in another phase of the same controversy, where such decision did not expressly decide the precise question raised in the present litigation.</p>

<p>1. Justices of the Peace—Judgment by Default—Verified Complaint— Proof of Service.</p> <p>Laws 1881, c. 414, as amended by Laws 1889, c. 472, § 1, provides that the summons and a verified complaint in an action before a justice of the peace shall be attached together, and a personal service thereof made, and the official certificate of the constable making the service shall be sufficient evidence thereof; and section 4 prescribes that, in case the defendant fails to answer the complaint at the time of the return of the summons, he shall be deemed to have admitted the allegations of the complaint, and the court shall, on filing the summons and complaint, with due proof of service, enter judgment for the plaintiff and against the defendant, without further proof. Held, that a justice of the peace was without jurisdiction to enter a judgment for the plaintiff on the defendant’s default, where the constable’s certificate only related to the service of the summons, and not to the verified complaint.</p> <p>2. Same—Waiter op Service—Demurrer.</p> <p>The filing of a demurrer to a verified complaint in an action before a justice of the peace will not be deemed an admission of the service of the complaint on the defendant, where the demurrer was not signed by the defendant, but by his attorney.</p>

<p>Street Railroads—Injury to Traveler on Track—Evidence.</p> <p>Plaintiff’s intestate was run over and killed by defendant’s street car, and this action was brought on the theory that such intestate was lying on or near the track in an unconscious condition when struck, and that the defendant was negligent in running its car at an excessive rate of speed and in failing to discover the deceased. Deceased, while somewhat intoxicated, alighted from another car, about a quarter of an hour before the accident, near the place thereof, but there was no evidence as to the rate of speed of the car which struck him, or that he was lying in an unconscious condition on or near the track. Held, that the evidence was insufficient, and plaintiff’s recovery properly denied.</p>

<p>Action by Sophie G. Parker, as executrix of the will of Asa W. Parker, deceased, against Morris F. Beer and another. Submission of controversy. Judgment for defendants.</p>

<p>1. Wills—Probate—Validity—Action to Contest—Procedure.</p> <p>Where an action is brought to set aside a will, under Code Civ. Proe. § 2053a, providing that the judgment therein shall determine the validity of the will and be final, the statute gives the defendant the right to- have its validity determined, and he may proceed on plaintiff’s default, though no counterclaim is pleaded.</p> <p>2. Appeal—Party in Default.</p> <p>Under Code Civ. Proc. § 1294, providing that a party aggrieved may appeal, except where the judgment was rendered on his default, a plaintiff who refused to proceed in his action, under section 2653a, to test the validity of a will, cannot appeal from the judgment entered therein against him.</p> <p>S. Estates—Value—Allegation—Extra Costs.</p> <p>Where, in an action to determine the validity of the probate of a will, the allegation of the complaint that the personal property of the estate is $150,000 is not denied, such allegation should be deemed true, and an allowance of $1,000 extra costs to the defendant, supporting the will as executor, is within the discretion of the trial court.</p>

Action by the Long Island Bottlers’ Union against the Bottling Brewers’ Protective Association. From an order refusing to vacate an order for the examination of defendant’s treasurer, defendant appeals.

Petition by Lillian P. Heaney, as general guardian of Charles W. Miller, an infant, for a final settlement of the account of the Union Trust Company of New York as administrator of the estate of Charles W. Miller, deceased. George A. Heaney was appointed special guardian of the infant pending the proceeding. From a decree of the surrogate’s court dismissing the petition, both guardians appeal.

<p>1. Execution—Imprisonment of Debtor—Term—Discharge.</p> <p>An execution issued on a judgment recovered for services performed by a working woman, which commands the officer, if sufficient property cannot be found, to commit the debtor to the jail, and directs the keeper to- hold defendant until he pay the judgment or be discharged according to law, is not void, under Code Civ. Proc. § 3221, providing that a defendant so arrested must be discharged after having been confined 15 days, since a discharge by reason of such statute is a discharge according to law.</p> <p>2. Same—Expiration of Term—Duty of Sheriff.</p> <p>Where a defendant is imprisoned on an execution issued under Code Civ. Proc. § 3221, providing that a defendant so arrested must be discharged after having been so confined 15 days, it is the duty of the sheriff to discharge such prisoner at the expiration of 15 days without any order or proceedings on the prisoner’s part.</p>

<p>1. Husband and Wipe—Agency—Improvement op Her Property.</p> <p>Where materials for building on a wife’s lot are sold and charged toller husband, who was also building on his own lots, evidence that she knew the building was being constructed, and that it was hers, and had once seen her husband order lumber of plaintiffs for one of his houses, does not establish her liability as an undisclosed principal, or that her husband acted as her agent in making the purchases.</p> <p>•2. Same—Testimony op Husband—Competency.</p> <p>In an action against a wife to recover for materials sold and charged to her husband and used in a building on her lot, it is error to exclude the question asked him by defendant whether she ever requested him- or told him to purchase from the plaintiffs any of such materials.</p>

<p>1. Justices op the Peace—Jury Trial—Demand tor Jury.</p> <p>Under Code Civ. Proc. § 2990, providing that at the time of joining issue a party may demand a jury trial, and section 3008, providing for the issuing of a new venire, without specifying the time when it must be issued, a demand for a jury trial, made when the issue is joined, relates to any subsequent trial of the action rendered necessary by disagreement of the first jury, unless the demand is waived.</p> <p>9. Attachment—Undertaking—Rights op Surety. .</p> <p>In an action against a surety on an attachment bond, it was error to permit him to show that there was a chattel mortgage upon the attached property. ■</p> <p>S. Evidence—Best and Secondary Evidence.</p> <p>It was error to admit in evidence a copy of a mortgage, without first proving the loss of the original, or inability to produce it, when ther^ was a specific objection that such copy was not the best evidence.</p>

Action by Michael Deluise against the Long Island Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Municipal Corporations—Civil Service Commission—Rules—Construction—D r APTSM AN.</p> <p>Laws 1899, c. 370, authorizes the municipal civil service commission to make rules, which by section 6 shall have the force and effect of law. Section 11 requires that the positions in the classified service shall be arranged in four classes, one of which is the competitive class. Rule 37 of the commission reads as follows: “Positions in the competitive class, are graded according to the fixed limit of compensation as follows: Fourth grade. * * * Draughtsman. Annual compensation of more than $1,320, but not more than $1,800.” Held, that such rule was a mere classification of employés according to their salary, and not a rule fixing the salary, or a declaration that every person holding the position of draftsman should receive a salary between $1,320 and $1,800, so as to enable such an employé to collect $1,320 per annum from the city.</p> <p>3. Same—Department op Public Improvements—Powers.</p> <p>Under Greater New York Charter, § 1543, providing that the number and duties of employés of all departments, with their respective salaries, shall be such as the heads of the respective departments shall designate and approve, the power to fix the salary of a draftsman in the department of public improvements is in the head of that department.</p> <p>3. Same—Statutes—Repealing Clause—Scope.</p> <p>Laws 1899, c. 370, § 29, consisting of merely general words of repeal, and mentioning salaries of city employés only incidentally to classification, does not destroy the salary scheme of Greater New York Charter, 9 1543.</p>

<p>1. Street Railways—Merger of Companies—Legality—Question—How Raised.</p> <p>Where, in an action to restrain a street railway company from constructing its track on a certain street on the ground that it has not the consent of a sufficient proportion of the property owners, it appears that another company is merged in such company, and that each had consent of different owners to build a road on such street, and the legality of such merger is questioned, such question cannot be determined in such action, but must be dealt with in an action brought for that purpose.</p> <p>2. Same—Consent of Property Owners—Several Companies—Consolidation —Rights under Merger.</p> <p>Where two or more street railway companies are organized to build a railway on the same street, and each obtains the consent of different property owners, on the merger of such companies the consolidated company succeeds to the rights given by all such consents.</p> <p>8. Same—Injunction—Prima Facie Case—Estoppel.</p> <p>Plaintiff, owning property on a certain street, sought to restrain defendant from constructing a track along such street on the ground that it had failed to obtain consent of the owners of one-half the property bounded on the street, as required by the railroad law. Defendant alleged it had such consents, and attached a list thereof to the answer. Plaintiff proved his ownership of abutting property, and that in 1896 defendant applied for commissioners, under Const, art. 3, § 18, and Railroad Law, § 94, to determine whether a railroad ought to be constructed on such street, alleging its inability to obtain the requisite number of consents, and that such proceeding was still pending in the court of appeals. Plaintiff then rested. The list of recorded consents attached to the answer as a bill of particulars, on which defendant relied, included consents granted to another company, which merged with defendant after such application for commissioners was filed, and the consolidated list included a sufficient number of owners. Held, that the pendency of the application for commissioners did not estop defendant from claiming that since the consolidation it had a sufficient number of consents, and hence plaintiff’s proofs did not establish a prima facie case for injunction.</p> <p>4, Same—Right to Lay Track.</p> <p>Where a street railway company has received and recorded consents of the owners of one-half in value of the property bounded on a street, executed in the manner prescribed in Railroad Law, § 91, such consents are sufficient, on the face of the papers, to justify it in entering on the street and laying its tracks.</p> <p>5. Same—Recorded Consent—Defect—Burden of Proof.</p> <p>Where a street railway has received and recorded consents of abutting property owners to lay its track on a street, the burden is on a .party claiming a consent to be ineffectual to show wherein it is defective.</p> <p>0. Same—License—Irrevocable.</p> <p>Under Const, art. 3, § IS, providing that no street railroad shall be authorized except on consent of the owners of one-half in value of the property bounded on the street, or on the determination of commissioners where such consents cannot be obtained, a consent properly executed and recorded is not a mere license, revocable at will, but conveys permanent rights, binding on the owner and his grantees.</p> <p>7. Same—Consent of Owners—Time of Execution.</p> <p>The consents of the owners of a majority of the property bounded on a street to the construction of a street railroad thereon, as provided in Railroad Law, § 91, may be executed and recorded at different times.</p> <p>8. Same—Failure to Record—Effect as to Subsequent Grantee.</p> <p>Where a street railroad company fails to record the consent of a property owner to the laying of the track until after such owner has conveyed such property, such consent is not thereby invalidated, but the grantee of such property is not estopped to assert any rights which may have come to him under his deed.</p> <p>9. Same—Nonconsent—Effect—Damages.</p> <p>Where a street railroad company has obtained consent to lay the track from the requisite number of property owners, a nonconsenting owner of abutting property may maintain an action for his damages, but cannot prevent the construction of the road.</p>

Action by Karl Sesselmann against the Metropolitan Street Railway Company. From a judgment in defendant’s favor, and from an order denying a new trial, plaintiff appeals.

Certiorari by the people on the relation of the New York Central & Hudson River Railroad Company to review a determination of the board of railroad commissioners allowing the Niagara Falls Streep Railway Company to cross the tracks of the New York Central & Hudson River Railroad Company in the city of Niagara Falls.

<p>Appeal from, special term, Kings county.</p> <p>Action by James Armstrong against the Borden’s Condensed Milk Company and others to foreclose a mechanic’s lien. From a judgment in favor of plaintiff, the Otto E. Reimer Company appeals.</p>

<p>1. Railroads— Statutes—Application—Presumption.</p> <p>Where the complaint alleges and answer admits that defendant in 1899 was, and still is, a domestic railroad corporation, and there is no contention that the defendant is not within the purview of Laws 1895, c. 1027, relating to mileage books, the court must assume that the statute applies.</p> <p>2. Same—Mileage Books—Contract—Consideration.</p> <p>Laws 1895, c. 1027, provides that railroad companies, on application, shall issue mileage books good for 500 or 1,000 miles, which shall entitle the holder to the same rights and privileges “to which the highest class ticket issued by such corporation will entitle him.” Defendant, on issuing a book to plaintiff, required him to sign a contract that it would be accepted for transportation only for journeys wholly within the state. Held, that such contract was without consideration and void, since it was the duty of defendant to issue the book without other conditions than those prescribed by the statute.</p> <p>3 Same—Construction op Contract.</p> <p>Where, pursuant to Laws 1895, c. 1027, a railroad company issues a mileage book, and attaches a contract that it shall be accepted for transportation only for journeys wholly within the state, such contract should be construed to mean that it will be accepted for only so much of a journey as lies within the state.</p>

Action by Sarah Louisa Squire and another against George R. Trimble and another, committee of the person and estate of Seth P. Squire, incompetent, to recover certain money received by him as administrator with the will annexed of John H. Ludlam, deceased.

Proceedings on the application and petition of the board of trustees of the village of White Plains for the opening and laying out of a highway in such village. From an order granting a motion by the board to discontinue the proceedings, the board appeals.

<p>Appeal from surrogate’s court, Dutchess county.</p> <p>In the matter of the final and judicial settlement of-the account of Catharine A. Swade as administratrix of Sarah M. Swade, deceased.. Prom a decree of the surrogate court settling the account, one of the heirs appeals.</p>

Summary proceedings by Anna M. Sirey against Cecilia Braems to recover possession of leased premises. From a judgment in favor of the plaintiff, defendant appeals.

<p>Subrogation—Volunteer—Mortgage—Premature Payment.</p> <p>Where an intestate left mortgaged realty and no personalty, and the widow, being unable to speak English, unfamiliar with business, and told by the mortgagee demanding immediate payment that he would sell the property if not paid at once, borrowed money, and paid the mortgage a year before it was due, believing it necessary to protect the interest of her children and her own dower, she was not a volunteer, but entitled to subrogation.</p>

Action by Annie Reilly, as administratrix of Patrick Reilly, deceased, against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from trial term, Kings county.</p> <p>Action by James M. Finder, as administrator of Arthur Finder, deceased, against the Brooklyn Heights Railroad Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Action by Arthur C. Brady against the Monarch Shoe Company.</p>

<p>Action by John N. Clark against Thomas A. Ennis and another. From an order denying defendants’ motion to vacate an order for the examination of the defendants for the purpose of enabling plaintiff to frame his complaint, defendants appeal.</p>

<p>In the matter of the application of the city of Mt. Vernon for the appointment of commissioners, etc.</p>

<p>Action by Thomas S. Coombs against the city of Mt. Vernon.</p>

<p>Action by Merritt J. Congdon against the Westcott Express Company.</p>

<p>, Action by John M. De Vore against the city of Auburn.</p>

<p>Action by Jesse G. Edwards against the city of Mt. Vernon.</p>

<p>Action by Lotta S. M. Dobson and another against the Dr. B. J. Kay Medical Company.</p>

<p>Action by the Farmers’ Loan & Trust Company, as trustee, against the New York & Northern Railway Company and others and Artemas H. Holmes.</p>

<p>Action by F. Bell Fenwick against William T. Mitchell and the Metropolitan .Street Railway Company.</p>

<p>Action by James K. Fuller against the city of Mt. Vernon.</p>

In the matter of the appraisal of the property of Caroline Remsen Gihon, deceased, under the act in relation to taxable transfers of property. Action by Francis M. Carpenter, treasurer of Westchester county, and Erastus C. Knight, comptroller of the state of New York, against William Gihon, F. G. Le Roy, and Haley Fiske, executors.

<p>Action by Joseph Greenwald, Albert Hildebrandt, Isaac Alderman, and Daniel Greenwald against Augustus G. Wales, as sheriff of Broome county.</p>

<p>Action by John Holl against William S. Long and others.</p>

<p>Action by Luke H. ■> Joyce against Henry D. Joyce and wife, commenced on the 22d day of September, 1900, to recover from the defendant Henry D. Joyce the sum of $1,000, with interest from April 4, 1900, and to have said sum declared a lien upon a certain house and lot situate in the city of Buffalo, N. Y., described in the complaint, the premises sold, and out of the proceeds that there be paid to the plaintiff said sum and the expenses of sale, together with the costs of this action; it being alleged that said sum was wrongfully obtained from the plaintiff by said defendant on or about said 4th day of April, 1900, and was expended in payment for said house and lot, which he purchased, the deed of which was taken in his name. The defendant by his answer admits receiving said sum of money from the plaintiff, and that he applied the same in payment of the purchase price of said premises, hut denies that he obtained it wrongfully, and alleges that it was a gift to him by the plaintiff, who is his father, in consideration of love and affection, and that it became his money and property, and that he had the right to expend it in the purchase of said house and lot in the manner in which he did. The defendant Catherine Joyce is the wife of Henry D. Joyce, and is made a party defendant only for the purpose of foreclosing her dower right in the premises. The learned trial court found the facts substantially as alleged by the defendant, and the only question presented by this appeal of plaintiff is whether or not the proof justifies such decision.</p>

Suit by Emma C. Kene, as executrix, etc., of Cornelius E. Kene, deceased, against Rosalie Hill and others. From an order appointing a receiver in supplementary proceedings, certain defendants, as trustees, appeal. William L. Snyder, for appellants. William P. Burr, for respondent.

<p>Action by Bernard Kreizer against Yoshizo ICitaoka.</p>

<p>Action by Eveline Leland, as administratrix, etc., of George Leland, deceased, against George A. Hearn and others.</p>

<p>Action by James L. Mack and another against the John Single Paper Company, Limited.</p>

<p>Action by Catherine McCann, as administratrix, etc., against the New York & Queens County Railway Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Action by Laura H. Meeker, as administratrix, etc., against C. R. Remingston & Son Company.</p>

<p>Action by William B. Mowbray against George R. Sheldon. From an order requiring security for costs, plaintiff appeals.</p>

<p>Action by the New York Infant Asylum against the city of Mt. Vernon.</p>

<p>Action by the New England Waterworks Company against the Farmers’ Loan & Trust Company. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Action by Eunice Niemoller against Naomi Duncombe.</p>

<p>In the matter of the application of John B. O’Hara for a writ of mandamus.</p>

<p>Action by the Patrons of Industry Fire Insurance Company against George W. J. Delong.</p>

<p>Proceeding by the people of the state of New York against the Granite State Provident Association.</p>

<p>Proceeding by the people of the state of New York, on the relation of Oscar Zollikofer, against Thos. L. Feitner and others.</p>

<p>Action by Beatrice Roberts against the Brooklyn Heights Railroad Company.</p>

<p>Action by Sam Saffier against Yon Motchkol. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Action by Mary Roystone, administratrix, etc., of Frank P. Roystone, deceased, against the Brooklyn Heights Railroad Company.</p>

<p>In the matter of the application of the Schenectady Railway Company.</p>

<p>Action by Patrick Sherlock against William Sherlock.</p>

<p>Action by Emma J. Sheldon against the Fidelity Trust & Guaranty Company of Buffalo.</p>

<p>Action by William Sproat, an infant, by Elizabeth Stapleton, his guardian ad litem, against the Brooklyn Heights Railroad Gompany.</p>

<p>Action by Martha H. Starbuck against Matilda E. Starbuck and another.</p>