Volume 72 — New York State Reporter

<p>Appeal from a judgment in favor of plaintiff in each case.</p>

<p>Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for1 a new trial.</p>

<p>Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>1. Assignment fob creditors—Assignee—Accounting.</p> <p>Where an assignee for the benefit of creditors takes possession of leasehold property and the difference between the income and the expenses of' the administration of such property shows, from the beginning, that it would be a most extravagant and wasteful administration to keep possession of the leasehold, ana such retention is not at the request of creditors, but at the desire of the assignor, the assignee should be held liable for whatever loss has accrued in consequence of such wasteful and extravagant conduct.</p> <p>3. Same.</p> <p>But, while, in such case, he may be refused a credit for the excess so paid, he cannot be charged therewith, where it does not appear that such excess was paid from moneys of the estate.</p>

<p>Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff.</p>

<p>1. Reference—Accounts of guardian.</p> <p>Upon a reference on a judicial settlement, the referee may allow the executors of a deceased guardian, to whose account objections are filed, to file a supplementary account showing payments made since the first account was filed,</p> <p>2. Guardian and ward—Accounting—Costs.</p> <p>In such case, where an objection to the accounts of the executor, filed on account of the infant, is justified, rendering a reference necessary, the executor’s disbursements in the proceeding will not be allowed from the ward’s estate.</p>

<p>1. Criminal law—Sentence.</p> <p>The term of imprisonment, upon a conviction in a court of special sessions, must he definitely fixed and declared by the judgment.</p> <p>S. Same—Indeeintb sentence.</p> <p>A sentence of imprisonment for a period not exceeding 180 days does not definitely fix and declare.tlie term of imprisonment and is ineffectual te continue a prisoner in custody any length of time.</p> <p>8. Same—Habeas corpus.</p> <p>In case of such error, it is not within the legitimate purpose of a writ of habeas corpus to relieve the relator from his imprisonment.</p> <p>4. Same—Special sessions—Resentence.</p> <p>The court of special sessions ceases to exist for the purposes of a case when the judgment is pronounced and the certificate of conviction is made, and it cannot afterwards he reorganized for the purpose of resentencing the defendant in order to correct a defect in the original sentence. In such case, the relator is entitled to his discharge from custody.</p>

<p>Appeal from a judgment dismissing the complaint on the merits.</p>

<p>Action by Johanna Kuechenmeister against Vernon H. Brown, as tenant of house No. 202 West Forty-fourth street, in the city, of New York, and John Jacob Astor, executor of William B. Astor, as owner of said premises, for personal injuries. A judgment of the trial term of the court of common pleas, in which the action was brought, dismissing the complaint, was affirmed by the general term of that court. Afterwards a motion for a reargument was granted, and the reargument now comes on fo'r hearing in the appellate division of the supreme court, pursuant to Const. 1895, art. 6, section 2.</p> <p>The case was tried before a court and a jury. At the close of the plaintiff’s evidence, the court dismissed the complaint The action was brought to recover damages for personal injuries, and was sought to be maintained upon two grounds,—the maintenance of a nuisance and negligence. The plaintiff testified on the trial that on the 22nd day of January, 1892, about eight o’clock at night, it being dark and snowing, while walking upon the sidewalk in front of the premises occupied by the defendant, she stepped upon the cover of the coal hole; it flew away, and she fell down into the hole as far as her knees, and, in falling, received the injuries complained of; that the cover was lying by the hole, and the hole was all open. She then called the defendant as a witness, and he testified that he was the occupant of the premises, and had been a year before the accident; that there was a connection from the sidewalk to the cellar of the house; that he used the cellar for coal, and the coal hole to put the coal in the cellar ; that the coal-hole cover, and the means of securing the same, were all in perfect condition at and prior to the accident, and, if the cover was properly secured in its place, it would be impossible for any one to fall into the hole. He also testified that he examined the coal hole immediately after the accident occurred, and found the cover properly secured in its place. No other witnesses were sworn, and upon this evidence the decision of the court was made.</p>

<p>1. Contempt—Damages.</p> <p>The general term, on reversing an order refusing to punish defendant for contempt in giving a bond with fictitious sureties to discharge a mechanic’s lien, should not impose as a fine the amount of the bond, but should remit the matter to the special term for further procedure,</p> <p>2. Same.</p> <p>In such case, the fine must he limited to an amount sufficient to Indemnify the aggrieved party for the actual loss or injury sustained, so far as it is in excess of $250 and costs.</p>

<p>Appeal from an order vacating the assessment.</p>

<p>1. Municipal corporation—Officers—Removal.</p> <p>The superintendent of street improvements in the city of New YorK cannot he discharged from office on a mere notice of intended consolidation of his office with another office and request for his resignation.</p> <p>2. Certiorari—Review.</p> <p>Section 2141 of the Code does not authorize the appellate court to adjudicate the rights of the relator, in such case, upon any state of facts arising after the unlawful action was taken by which he was deprived of his office.</p>

<p>1. School teachers—Discharge.</p> <p>The teacher of a public school in the city of Brooklyn is an employe, not of the city, but of the board of education,'and.is not protected by chapter 577 of 189S.</p> <p>2. Same—Bight to trial.</p> <p>Chapter 556 of 1894 does not give the teacher, in such case, the right to a trial.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Evidence—Documentary—Correspondence.</p> <p>Where many of the letters, constituting the correspondence between plaintiff and defendant’s testator relative to a certain matter, have been ■*-* introduced by plaintiff and defendant without objection, other letters, embraced in such correspondence, are properly admissible.</p>

<p>Application by the St. Lawrence State Hospital for an order against Frederick Fowler, as committee of Christian Holsworth, insane.</p>

<p>Justice op the peace—Adjournment.</p> <p>A judgment cannot be entered on the day at which a cause is adjourned by consent without waiting one hour after the time appointed, unless the . parties agree to waive the practice of waiting one hour.</p>

<p>I. Justice’s coubt—Infants—Judgment.</p> <p>A judgment, rendered against an infant in a justice’s court without first appointing a guardian ad litem, will he reversed though no suggestion of the fact of infancy was made by the defendant or her attorney when they appeared before the justice.</p> <p>:2. Same—Objection on appeal.</p> <p>Such objection may be raised on appeal from the judgment.</p>

<p>1. Sat.e—Conditional—Fixtures.</p> <p>The title to fixtures, placed on the premises under contract of conditional sale, passes to the mortgagee of the premises, where the contract of sale is not filed.</p> <p>2. Same—Bona side mortgagee.</p> <p>A person is not a mortgagee in good faith, within' the meaning of section-1, chapter 315 of 1884, whose mortgage was given for a pre-existing debt without any new consideration, or with actual notice of the vendor's claim.</p>

<p>Appeal from an order denying plaintiff’s motion for a temporary receiver.</p>

<p>Appeal from a judgment on an order sustaining a demurrer to the complaint.</p>

<p>1. Appeal—Dismissal op complaint.</p> <p>Where the complaint is properly dismissed, the appellate court will not consider the point upon' which the dismissal was had, nor the reasons given by the trial court therefor.</p> <p>8. Master and servant—Termination op employment.</p> <p>The facts, in this case, were held to establish that, even if any contract of employment between plaintiff and defendant existed at any time, it was terminated by mutual consent.</p>

On April 6, 1893, the petitioner, Livingston Jaques, placed with Eollin Tracy, the appellant, a claim against one Hollins for collection. At this time he paid appellant $50 on account of prospective disbursements.

<p>Appeal from a judgment in favor of plaintiff, entered on the decision of the court.</p>

<p>Limitation—Mistake—When accrues.</p> <p>The statute of limitations begins to run against a cause of action to re- „). form a deed on the ground of mistake at the time of the delivery of the deed, and not at the time of the discovery of the mistake.</p>

<p>Appeal from a judgment in favor of plaintiff.</p> <p>The action was brought to recover damages for injuries to a quantity of goatskins which were shipped from 'Havre, France, consigned to the plaintiff in New York. The shipment was made - under a bill of lading, executed in France, bearing the heading, “Through from Havre to New York,” wherein among other things, the defendant acknowledged the receipt of the skins in good order at Havre, to be forwarded by the steamer Wolf to London, and to> be there transshipped upon the steamer Canada for New York, subject to certain exceptions and conditions therein contained. Among these were the following: That defendant should not be liable for loss or damage resulting from sweating, rain, spray, or inherent deterioration, nor (under the through bill of lading) where the damage was done while the skins were not actually in the possession of defendant, or shipped on board its steamer. The skins were transported by the steamer Wolf from Havre to Southampton, thence by railroad to London, and thence by defendant’s steamer Canada to New York. Neither the steamer Wolf nor the railroad were owned or operated by the defendant, but by outside parties. When the skins reached the plaintiff in New York, it was claimed they had been considerably injured by having been wet. The trial court decided that the injury to the skins was not caused by any negligence or breach of duty on the part of the defendant, and that whatever injury there was resulted from causes for which the defendant was not responsible; that its liability was only for such injuries as resulted while the skins were actually in its custody in London or New York, or while being transported on its steamer from London to New York.</p>

<p>Dowek—Devise.</p> <p>A widow is not put to her election between a will and her right to dower in addition to the provision made for her in the will, where the testator directs his executors to distribute his estate among his widow and children in such a manner as in their judgment should be best.</p>

Action by Wiliam J. Reynolds against the mayor, aldermen, and commonalty of the city of New York, Joseph Moore, and the Mt. Morris Bank, to… Held: that on this ground alone the report should be set aside; the court saying that “we do not deem it important to inquire whether the decision of the referee was or was affected favorably to the plaintiff by his retainer. * * * The rule should be inflexible that such a fact will, ipso facto, avoid the report of a referee. .

<p>1. Municipal corporations—Officers—Removal.</p> <p>« Where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law.</p> <p>■ '2. Same.</p> <p>A roundsman in the employ of the dock department of the city of New York may he discharged without a hearing.</p>

<p>1. Judgment—Pleadings.</p> <p>Where an answer pleads affirmative matter constituting a defense, which is admitted by the reply, a dismissal on the merits is proper.</p> <p>2. Pleading—Amendment. '</p> <p>After an action is brought on for trial, it is not error to refuse to allow an amendment to the reply changing the issues. The plaintiff, upon discovering the mistake in his pleading, should apply to postpone the trial and make regular application on notice for leave to serve an amended reply.</p>

<p>Taxes—Corporations—Where assessible.</p> <p>Where, under section 6, of 1 Revised Statute 389, a corporation has its ; principal place of, business at Schenectady and its general executive and . financial business, which had been carried on at New York has been removed out of the city, leaving only a selling agency at New York, its Í. capital is taxable at Schenectady and not at New York.</p>

<p>Appeal from a judgment dismissing the complaint.</p> <p>The complaint alleges that defendant is a municipal corporation incorporated by and existing under chapter 8966 of the Laws • of Florida; that on the 20th day of March, 1890, one B. G. Oppenheim, plaintiff’s assignor, entered into á contract in writing with defendant, whereby defendant agreed to issue bonds to the extent of. $400,000, and to use the proceeds “ for the purpose of inaugurating a perfect system .of surface drainage and underground sewerage throughout the city of Key West;” that Oppenheim agreed to receive the bonds “from time to time as the board of commissioners of defendant should require;” that on the 12th day of June, 1890, the board drew on Oppenheim for $97,500; the sum he had agreed to pay for each $100,000 of the bonds; the draft was paid, and the money deposited to defendant’s credit, ‘ that defendant “ has already paid, laid out, and expended large amounts of the money already paid to it by said Oppenheim for curbing, grading, and paving the streets of said city,” and “has contracted for and made arrangements to use the entire sum of $400,000 aforesaid;” that by reason of the use made by defendant of the moneys it has received, and because of an alleged violation by defendant of its agreement with Oppenheim, it has become impossible for him to receive the other $800,000 of the bonds, and the bonds purchased and taken by him have become less marketable, and have been rendered an unprofitable investment and an insecure security for the money so paid for them; that by the terms of the agreement it was provided that, if defendant should not prepare the bonds, or should decide not to negotiate them, or should neglect to perform its part without any fault on the part of Oppenheim, then and in that case defendant should pay to him a sum equal to the commission of 2.4 per cent., “which, if not for the default of said defendant, said Oppenheim would otherwise-have earned under said agreement;” that defendant has failed and neglected to perform the conditions of the agreement on its part,. - which • neglect “ has not been caused, superinduced, or brought in any way by the fault of said Oppenheim;" that, by reason of the premises, defendant became indebted to Oppenheim in the sum of $7,200 ; that before the commencement of this action Oppenheim, in writing, assigned to plaintiff all his rights, title, and interest in and to that sum, for which, with interest from June 13, 1891, judgment is demanded. The amended answer admits that defendant is a municipal corporation under chapter 3966 of the , Laws of Florida, and alleges that whatever defendant did in the matters referred to in the complaint was lawfully done ; admits a contract in writing with Oppenheim, March 20, 1890, but denies all the allegations of the complaint as to the terms of that contract; alleges that whatever Oppenheim did in the matter of the block of bonds he purchased and paid for was in part performance-of his said agreement; denies that defendant has used any of the-moneys, proceeds of bonds, unlawfully or in violation of agreement with Oppenheim or witli any one else, and denies that defendant has made any arrangement o,r entered into any agreement for the use of the entire sum, or any part of the sum, of $400,000, “contrary to the stipulations, or any of them, of defendant in said contract in writing of March 20, 1890, between said Oppenheim- and defendant, or in disregard of the terms or provisions of the-law or laws of the state of Florida in said contract mentioned or referred to,” and denies each and every other allegation of the complaint. The amended answer further alleges a counterclaim in the amount of defendant’s damages because of Oppenheim’s failure to accept and pay for the second block of $100,000 of bonds, tendered March 2, 1891, in the city of New York, under the terms of his contract. The reply denies the allegations of the counterclaim.</p>

The action was originally brought by Sebastian Sommer, as administrator of the goods,.etc., of his mother, Diadema Sommer, deceased, to recover balance of rent alleged to be due. said decedent under a lease of premises in which she had a right of dower executed to the defendant under its former name of the Burr Brewing Company, by the four joint owners of the fee, and to which her name was affixed “by W. H. Burr, Her Atty. in Fact,” Sebastian Sommer having died, the present…

<p>Appeal from an order, and an interlocutory judgment thereon, sustaining a demurrer to the answer.</p>

<p>Appeal from a judgment, entered on a verdict directed by the court in favor of plaintiff.</p>

<p>Appeal from a judgment dismissing the complaint. ■</p>

<p>1. Principal and agent—Following proceeds.</p> <p>Where one occupies the relation of agent to another, and in that relations makes an investment for such other, with the money of its principal, the principal is entitled to, not only to the property bought, but to the proceeds of that property, so long as it can be traced and identified.</p> <p>2. Same.</p> <p>Where a broker has bought stocks or securities for his principal upon & margin, or upon any other contract, by virtue of which he is entitled to hold the property so bought as security for advances or loans made to his principal, he is not required to take the certificates or the bonds in the name of his principal, or to keep the securities which he originally purchased separate from the other stock of the same kind belonging to himself, but he sufficiently fulfills Ms obligation if he keeps on hand stock and securities of the same kind as those which he has purchased for his principal, ready to be delivered when it is his duty to do so.</p> <p>8. Same.</p> <p>The principal, when he seeks to recover his securities bought for him by the agent, is not called upon to put his finger upon the identical certificates, and he able to say that those were the ones purchased for him, but be sufficiently identifies them if he shows that the agent purchased that particular kind of securities and lias the necessary amount in his hands, which he can deliver upon demand.</p> <p>4. Same—Mingling trust funds.</p> <p>Where one, occupying a fiduciary relation to another, has mingled the trust funds with his own funds, drafts which he makes for his own purposes upon the common fund will be deemed to be drawn from his owb share, and the presumption will be that he intended to keep the trust funds intact to answer the legitimate claims made upon it.</p>

On the 28th of June, 1895, an order was made by a judge of the court requiring the defendant to appear at chambers on the 8th day of July, 1895, for examination before trial, and to be there examined as a witness at the instance of the plaintiff as to the issues in the action, and directing the order and affidavit on which it was granted to be served upon the defendant within the state, on or before July 2, 1895.

<p>1. Pleading—Complaint—Negligence.</p> <p>A complaint for injuries from a disease contracted in washing infected clothing should allege the name and nature of disease, if known.</p> <p>2. Bill of particulars—Negligence.</p> <p>When a complaint, in such case, alleges the facts constituting such negligence and misconduct, a bill of particulars for special damages need not allege these facts.</p> <p>3. Pleading—More definite and certain.</p> <p>' Where the complaint is not sufficiently specific as to the name, nature, character, or other description of the disease, an order requiring it to be made more definite and certain should be granted.</p>

<p>Appeal from an order, vacating a judgment entered against defendant by default after service of summons by publication.</p>

<p>Appeal from a judgment for plaintiff, entered on a verdict under direction of court.</p>

<p>Appeal from an order denying a motion for a new trial on the ground of newly-discovered evidence.</p>

<p>1. Negligence—What is.</p> <p>The driver of a truck is required to exercise that degree of diligence and care which is expected of a person of ordinary prudence and capacity under like circumstances.</p> <p>2. Damages—Excessive.</p> <p>A verdict warranted by the evidence, which awards damages for personal injuries, will not be disturbed as excessive, where the court cannot say, as matter of law, that the amount discredits the verdict, upon any legal aspect of the case.</p>

<p>Appeal—Conflicting evidence.</p> <p>A judgment, rendered upon conflicting evidence respecting both the terms of a contract and the adequate performance of the work, will not be disturbed on appeal.</p>

<p>Appeal from a judgment in favor of plaintiff,</p>

<p>1. Mortgage—Foreclosure—Jurisdiction.</p> <p>Where the affidavit upon which an order to publish against the mort- , gagor, in action to foreclose a mortgage, is made, does not give the county" judge jurisdiction, the proceeding for that reason is entirely void against the mortgagor.</p> <p>8, Same—Redemption.</p> <p>Where, in such case, the mortgagee buys in the premises upon the foreclosure sale and takes a deed from the sheriff, it effects no change in the relation between himself and the mortgagor.</p> <p>3. Same.</p> <p>Where the mortgagee purchaser, in such case, conveys the premises to another, the deed, under the statute, operates to pass to the grantee only the interest which the mortgagee had in the premises at the time the deed was made and no more.</p> <p>4. Same.</p> <p>A conveyance from the mortgagor in such case, conveys the equity of redemption, which has never been foreclosed, and vests the grantee with the title to the property precisely as the mortgagor had it.</p> <p>Same.</p> <p>In such case, as against the right of redemption, the statute of limitations does not begin to run until the mortgagee has entered into possession, and the action is not barred until the mortgagee or those claiming under him have continuously maintained an adverse possession of the mortgaged premises for twenty years, after a breach of the condition of the mortgage.</p> <p>(8. Same—Adverse possession.</p> <p>Where, in such case, in an action to redeem from a mortgage land purchased by the mortgagee at a sale in a void foreclosure proceeding, it appeared that the mortgagee did not take actual possession of the land, that it was unoccupied and uninclosed, and remained so until the title of the mortgagee had been conveyed by mesne conveyances to defendant’s grantor who entered on and began to improve the land, there was, until such entry, no possession adverse to the mortgagor and those claiming under him, within the provisions of §370 of the Code, and the claim that the cause of action is barred by the statute of limitations is not well founded.</p> <p>t?. Same—Statute oe limitations.</p> <p>Where the statute of limitations is in question the material matter is the possession, and whether that possession has been taken under a claim of right hostile to the adverse party, without regard to what the particular claim is.</p> <p>8. Same—Champerty.</p> <p>To avoid a deed under the champerty act, the claim must be under title.</p> <p>9. Same.</p> <p>In such case, a deed by a mortgagor of his equity of redemption after the sale in a void foreclosure proceeding is not within § 147 of 1 Revised Statute 739, where each title goes back to a common grantor and seeks to establish its validity by showing a descent from him in right line.</p> <p>10. Appeal—Judgment by appellate court.</p> <p>Where plaintiff, in an action to redeem from a mortgage, appeals from an adverse judgment, and it appears that she is entitled to the relief prayed for, and also to an account of the rents and profits, expenses, improvements and taxes, and the facts necessary to enable the appellate court to pass on these questions are not before it, the case is not within the provisions of § 1023 of the code.</p>

On the 6th day of February, 1889, the defendant John Sehubaclc entered into a contract with Barron & Barron for the building of two houses on two lots of land at the corner of Ninth avenue and Eighty-Ninth street, for the price of $43.000, to be paid by seven installments; six at different stages in the erection of the building, and the seventh, $13,000, on its completion.

<p>Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial.</p>

<p>Lppeal from a judgment for plaintiff, and from an order denying motion for a new trial.</p>

<p>1. Witness—Credibility.</p> <p>The rule that a fact testified to by a disinterested witness, who is not discredited, which is not in conflict with other evidence, is to be taken as legally established, and cannot be disregarded by the court or jury, is not applicable where the person who can contradict the witness, if his testimony is false, is not living.</p> <p>2. Same.</p> <p>The rule that the uncontradicted testimony of a disinterested witness is to he believed, is always subject to the limitation that the evidence is not improbable.</p> <p>3. Executors—Disputed claim.</p> <p>Both claims, in their entirety, were held, in these cases, to have been properly disallowed.</p>

<p>Appeal from an order denying a motion for reference.</p>

<p>1, Parties—Mortgage—Foreclosure.</p> <p>The necessary parties to a foreclosure suit are the mortgagor and mortgagee, and those who have obtained rights or interest in the land subsequent to the mortgage.</p> <p>8. Same.</p> <p>Hostile rights prior to the mortgage are not to be settled in foreclosure suits. So held, where a remainderman, after a devise to a father for life, remainder to his children in fee, mortgaged his interests and died pending an action to foreclose, and the other children claim that, by the mortgagor’s death his interest lapsed, that the whole remainder was in them, and asked to be made defendants to the foreclosure suit that they might set up their rights against the mortgagee. *</p>

<p>1. Pledge—Possession.</p> <p>The delivery of the possession of pledged goods is absolutely essential in order to constitute a pledge.</p> <p>2. Same—Replevin.</p> <p>Where there is neither actual nor symbolical delivery of goods pledged» the pledgee cannot maintain replevin to recover them from the assignee of the pledgor.</p> <p>8. Same—Legal title.</p> <p>In order to maintain such action, the pledgee must have the legal title, or a right to the possession of the goods.</p>

<p>1. Evidence—Parol.</p> <p>The contract, in this case, when supplemented by the plans referred to, was held not to be ambiguous so as to admit parol evidence.</p> <p>3. Contract—Breach.</p> <p>Where, in an action to recover a sum alleged to be due on a contract of sale to defendant of plaintiff’s interest in two buildings “being erected” by a certain railroad company, there is no disputed question of fact, and the agreement between the parties, with the plans, makes out an intelligible contract, a breach of which the plaintiff has failed to show, there is no question to go to the jury.</p>

<p>1. Duress—Threat to commit suicide.</p> <p>A threat by a man to his wife that, unless she signs certain papers, he will be arrested for embezzlement and will commit suicide, does not constitute duress.</p> <p>2. Deed—Cancellation—Fraud.</p> <p>In an action to cancel a deed on the ground that plaintiff was induced to execute it by false representations of her husband, acting- as defendant’s agent, and that plaintiff did not know the nature of the instrument, the evidence was held insufficient to show fraud.</p> <p>3. Same—Consideration.</p> <p>An agreement by a corporation to waive a large money claim against an employe who was accused of embezzlement, and to retain him in its employ, is sufficient consideration for a deed executed by the employe’s wife.</p>

<p>1. Principal and agent—Liability.</p> <p>An agent of the vendor who, because of misrepresentations may be liable in damages, cannot, upon rescission, be held liable for the purchase price which his principal, and not he, has received.</p> <p>3. Same—Sale—Rescission,</p> <p>The right to disaffirm a contract is waived when the defrauded party does an act which unequivocally treats the contract as subsisting after the-facts giving the right to rescind have come to his knowledge. So held, where a purchaser'of stock in a company, who, as an inducement to the purchase, is given employment by it and continues, for a long time after obtaining knowledge of the facts, in the employment and fails to take any steps towards disaffirmance.</p>

<p>1. Municipal corporation—New York City—Commissioner op public works.</p> <p>- To establish a municipal liability, the act complained of must he only within the scope of the power of the corporation conferred upon it by statute. If the act is committed outside of the authority and power of the corporation thus conferred, the corporation is not liable, though its officers may have expressly directed its performance.</p> <p>S. Same.</p> <p>Section 27, chapter 189 of 1893, does not confer upon the copimissioner ' of public works of the city of New York, as incidental to the preservation from pollution and defilement of the sources of the water supply of the city, the power to arrest or quarantine persons in order to prevent pollution of such supply.</p>

<p>Appeal from a judgment in favor of plaintiff.</p>

<p>Appeal from an order of the surrogate affirming an appraisement and determination of a transfer tax.</p> <p>Appeal by the executor of the estate of Eugene A. Livingston,, deceased, from an order of the surrogate’s court of New York county entered on the 8th day of January, 1896, affirming an order of said court entered the 19th day of November, 1894. The testator, a resident of this state, left a will, by the third clause of which he gives and devises all the rest and residue of his property, both real and personal, remaining after the payment of certain legacies contained in prior clauses, to his executors, upon certain trusts, for the benefit of four of his children. By the fourth clause, after the termination of these trusts, he devises and bequeaths all of said property to such of his five children as shall be-living, and to the issue of such as shall be dead. In a later part, of the will he empowers his executors, “ in their discretion,” to pay certain mortgages upon the real "property out of the personalty. This the executors did, the payment amounting to $52,297.96. The order appealed from, in assessing the transfer tax upon the residuary personal estate, makes no deduction for this payment, but assesses the tax upon the whole of said estate, of $67,283.40.</p>

<p>Municipal corporations—Clerks—Removal.</p> <p>By § 1664 of the Consolidation Act, the commissioner of jurors may at pleasure remove his assistants, clerks and messengers, without a hearing.</p>

<p>Appeal from a judgment dismissing the complaint.'</p>

<p>1. Peincipal and surety—Release—Extending time op payment.</p> <p>The taking of a new security from the debtor without agreeing to give him time does not discharge a surety,</p> <p>8. Same.</p> <p>The fact that the collateral may not be enforceable until a definite time in the future, does not operate to extend the time of payment of the principal debt or suspend the right to sue upon the original security,</p> <p>3. Same.</p> <p>Where it has been held that the time of payment of the original debt has been extended by the receipt of collateral security, there has beeu an express or implied agreement to that effect.</p>

<p>1. Master and servant—Rules.</p> <p>The rules; promulgated by a railroad company, must be such as, if faithfully observed, will give reasonable protection to the employes.</p> <p>3. Same.</p> <p>Where the proximate cause of the accident is not due to the failure of the company to make a proper rule, but to the neglect of a duty imposed by the company uj)on a conductor, the company is not liable.</p>

<p>Appeal from a judgment on a verdict directed for the plaintiff.</p>

<p>Municipal cobpobation—Policeman—Removal.</p> <p>A charge against a policeman for neglecting to make an arrest for a violation of the excise law was held, in this case, to be sustained by the evidence.</p>

<p>1. Libel—Bribery.</p> <p>To charge a person with raising a large sum of money to be used for tlie purpose of “buying votes” and “debauching the ballot,” and “other dishonorable expedients” to bring about the election of a candidate for office, charges him with the commission of a crime.</p> <p>2. Same—Malice.</p> <p>The fact that a publication is made without any attempt to ascertain its correctness, will justify a jury in finding that the publisher committed the libel with a wanton and reckless indifference and actual malice sufficient to sustain exemplary damages.</p> <p>3. Same—Absurdity of charge.</p> <p>In such, case, the right to recover exemplary damages is not affected by - the fact that the charge was so ridiculous upon its face that none of the friends of the plaintiff could believe it to be true.</p> <p>4. Same—Damages—Mental suffering.</p> <p>Before the jury would be justified in awarding exemplary damages, they must find from the evidence in the case that actual malice existed.</p> <p>5. Same.</p> <p>In determining the amount of damage, where publication is libelous per se, the jury has the right to consider the mental suffering which may have been occasioned to the plaintiff by the publication.</p>

<p>1. Trial—Motion for direction of verdict.</p> <p>Where a defendant makes a motion for the direction of a verdict .without specifying any ground, and the motion is denied and he excepts to the ruling, and a verdict is rendered against him, he cannot maintain the exception, unless he makes it appear that the defect existing at the time the motion was made was one which could not have been obviated if the plaintiff's attention had been called to it. ,</p> <p>2. Master and servant—Appliances,</p> <p>The master.must use reasonable care to see that the tools and appliances which he furnishes to his servants to use about the business are in a reasonably safe condition for the purpose for which they are intended to be used.</p> <p>8. Same.</p> <p>It is his duty, not only to provide reasonably safe appliances in the first place, but to examine and inspect them from time to time and use ordinary skill to discover and repair defects in them.</p> <p>4. Same—Notice.</p> <p>In order to establish the master’s negligence, it is not necessary to prove actual notice of the condition of the appliance, it is sufficient if it appears that the appliance has been in a defective condition so long that, with reasonable care, the master might have discovered its condition in time to have remedied it before the accident happened.</p>

<p>Corporation—Receivers—Injunction.</p> <p>An action to foreclose a mortgage, executed by a corporation, is not an action to recover a sum of money, which the court may restrain after the appointment of a temporary receiver.</p>

<p>Appeal from a judgment, entered upon a verdict of the court, dismissing the complaint on the pleadings,</p>

<p>Appeal from a judgment dismissing the complaint, with costs.</p>

<p>1. Municipal corporation—Ordinances—Veto.</p> <p>Under section 5, chapter 1, title 3 of Long Island City charter, (chapter 461 of 1871) the veto power is not limited to legislative acts.</p> <p>2. Same—Legislative act.</p> <p>An ordinance, determining the lowest bid' for furnishing materials under a contract, is a legislative act, and must be submitted to the mayor under the charter of Long Island City.</p> <p>3. Same—Passage over veto.</p> <p>Under said charter, an ordinance passed over the mayor’s veto at the meeting to which it was returned is void.</p>

<p>Appeal from so much of the order of the special term as denied the adult defendants their right to costs and an additional allowance.</p> <p>The proceeding was instituted under the provisions of the Code of Civil Procedure to acquire title to real estate in the city of Kew York. It is conceded that the defendants were, for various reasons, under legal" disability to convey the title of the property taken. It is apparent, therefore, that no offer to purchase the property could be -made by the plaintiff, under section 8S72 of the Code. The same section provides that, if no offer was made, the court should direct that the defendant recover of the plaintiff the costs of the proceeding, and might also grant an additional allowance of costs, not exceeding 5 per cent, lipón the amount awarded.</p> <p>The question is whether this latter provision applies to a case, where under the former provisions of the section, no offer could be made.</p>

<p>Appeal from a judgment on a verdict directed for plaintiff.</p>

Proceedings for a writ of certiorari to review the action of the . police commissioners, in removing relator as an officer of the police force.

<p>Appeal from a judgment dismissing the complaint for insufficiency of facts. _ ,</p> <p>The action was brought upon a written agreement of the parties, wherein it was provided that the defendant was engaged in the manufacture of artificial ice in the city of New York, and would have an output of from seventy-five to one hundred tons per day, and the intention was to dispose of this ice, and deliver the same to various customers; that the plaintiff was engaged in forwarding and trucking merchandise, and agreed to take such ice from defendant’s,plant, and deliver the same to various persons in the city, and when requested, to store the same in ice boxes or bunkers situated in the buildings of said customers, and to furnish the necessary new wagons, properly painted and lettered, with good horses and harnesses, together with the necessary appliances and proper help, sufficient to deliver the said ice with reasonable dispatch, and that the defendant would pay the plaintiff on the first day of each month for the'ice that he delivered during the previous month, at the rate per ton therein specified, and'that, in case of the failure of plaintiff properly to deliver the ice as therein .agreed, the defendant should give written notice to the plaintiff, and thereafter, if the plaintiff was unable to perform the work properly, the defendant had the right to arrange for the delivery of said ice, and charge any excess of expenses over the prices therein agreed upon to the plaintiff; that the agreement was to continue for two years from May 1, 1892, and the defendant should have the option of buying the horses, trucks, harnesses, etc., from the plaintiff after the first year of the term of the agreement. This agreement stated it was made between the parties, and it was signed and sealed by both of them. The complaint set out this agreement, and further alleged that, pursuant to the agreement, the plaintiff purchased the necessary horses, harnesses, trucks and appliances, and fully prepared itself to receive and deliver the ice, and entered upon the performance of the agreement, —and that there wore, and ever since had been, customers sufficient to take the 100 tons daily,—and that the pi an tiff was fully prepared to receive,and deliver the iee, was ready to do so, and so presented itself to. the defendant; that on the first day of May, 1892, it began to receive and deliver the ice, and continued to do so up to January 1,1893, but though there were customers for at least the 100 tons of ice daily, and although the defendant had agreed to produce seventy-five to one hundred tons a day for such 'delivery, he failed to do so, and only produced on an average about twenty-five tons per day for such delivery, and on or about January 1, 1893, stopped producing any ice for such delivery, and the plaintiff was therefore unable to get any ice for delivery, and so the defendant was guilty of a breach of the agreement, and by reason thereof the plaintiff suffered damages in the sum of $41,550, for which it sought to recover judgment at the trial. Before any evidence was taken the defendant moved for a dismissal of the complaint, on the grounds: (1) That while the agreement ■ ■obliged the plaintiff to receive the ice manufactured by the defendant for delivery, and to deliver the same to customers, there-was no corresponding obligation imposed on the defendant by the agreement to deliver any ice to the plaintiff, and the plaintiff could not recover damages for the failure of the defendant to deliver that which the contract did not require it to deliver; (2) that the agreement was void for want of mutuality, there being no obligation on the part of the defendant to deliver ice to the plaintiff: {3) the agreement was void for uncertainty, for the reason that no definite quantity of ice was specified. The court granted 'the motion and the plaintiff accepted to such ruling. From the judgment entered on this decision, the appeal is taken.</p>

<p>1. Insurance—Lies policy—Assignment.</p> <p>A policy of insurance, effected, by a person upon his own life, is assignable like an ordinary chose in action, and the assignees entitled, upon the death of the assured, to the full sum payable, without regard to the consideration given by him for the assignment or to his possession of any insurable interest in the life of the assured.</p> <p>3. Appeal—Harmless error.</p> <p>The vacation of an order for the examination of a witness before trial is without prejudice, where the witness is present at the trial and is not examined.</p>

<p>1. Negligence—Icy sidewalk.</p> <p>To entitle a person injured in a public highway to recover for injuries sustained because of a defect or obstruction in the highway, it is necessary to allege and prove that the obstruction, which caused the injury, was unlawfully placed in the street by the defendant or his servants, or that it was negligently left by him unguarded.</p> <p>3. Pleading—Complaint—Negligence.</p> <p>, A complaint, which alleges that the defendant allowed snow and ice t® melt on her premises, the water from which flowed over the adjacent sidewalk, and froze, rendering the walk icy, by reason of which plaintiff was injured, does not state a cause of action against the defendant for the injury.</p>

<p>Motion for a new trial on exceptions ordered to be heard in the first instance at the appellate division.</p>

The action was brought to recover rent under a lease. The real property leased was owned by plaintiff and defendant Healey as tenants in common. May 30, 1891, these owners joined in a lease of the property to defendants, who were copartners, and one of whom, Healey, was a part owner of the property.

<p>Municipal corporation's—Notice to sue.</p> <p>Notice of an intention to sue a city for personal injuries, under section 1, chapter 572 of 1886, is sufficiently filed by being delivered in the office of the city counsel to one who is acting for an assistant in making the examination of the plaintiff regarding the same claim.</p>

<p>1. Attorney and client—Removal of attorney.</p> <p>Upon a motion 'to require an attorney to dissolve his connection with his client in all actions in which he is acting for him as attorney and give up the papers in those actions upon which he has a lien for his services, it is</p> <p>" error to order him to do so without providing for the settlement of all matters Between them and for fixing the amount due him and for its payment.</p> <p>2. Same—Reference.</p> <p>In such a case, the court may refer the matter to a referee, to fix the value of the attorney's fees in such other actions.</p>

<p>Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>1. Evidence—Presumptions—Legitimacy.</p> <p>The burden of proving legitimacy is on the party asserting it.</p> <p>2. Same.</p> <p>Testimony as to declarations in respect to the birth and parentage of a party, made by persons now deceased, are admissible in regard to matters of pedigree, where they emanate from deceased persons connected by blood or marriage with the family of the persons whose pedigree is under investigation.</p> <p>3. Same.</p> <p>The refusal of the surrogate to receive testimony under a formal offer “ to prove by the neighbors that the claimant was illegitimate,” is not error.</p>

<p>Parties—New defendants.</p> <p>Where, in an action to declare that plaintiffs were not personally liable on an agreement signed by them as individuals, and plaintiffs' only interest in the controversy was to relieve themselves from liability, they are not entitled to an order bringing in, as the defendant, the association of which they were officers.</p>

<p>1. Former adjudication—Matters determined.</p> <p>The estoppel of a former judgment extends to every material matter within the issues which are expressly litigated and determined, and also to those matters which, though not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were, or were not, actually litigated or considered.</p> <p>2. Same.</p> <p>Where a vendor, by the terms of his contract, agreed to pay off a mortgage on the land conveyed, and, on his failure to do so, the purchaser sued for specific performance of the agreement, and the vendor answered, alleging that the contract was procured by fraud of the purchaser, and asked that it be canceled, hut he did not appear on the hearing of the case and judgment was rendered against him that he perform his contract and pay off the mortgage, which iie subsequently did, the issue of fraud was not tried or determined in that action for the reason that the defendant therein failed to appear on the trial.</p> <p>3. Contract—Rescission.</p> <p>If a party defrauded elects to rescind a contract, he must do so promptly after discovering the fraud, and if, with knowledge of the fraud, he im any measure carries out the contract or received a benefit under it, Ms. election is made and his right to rescind is gone.</p> <p>4. Same.</p> <p>In such- case, it is as much his duty to resist compulsory compliance with the terms of the contract as it is to refrain from voluntary compliance.</p> <p>5. Estoppel—Fraud.</p> <p>The fact that the vendor in such case suffers the judgment to be taken against him without appearing on the trial and afterwards performs the-judgment, waives the alleged fraud on the part of the purchaser in procuring the contract and estops him from afterwards suing the purchaser foil a recission of it.</p>

<p>Appeal from a judgment, dismissing the complaint, and also from an order denying a motion to set aside such dismissal and grant a new trial.</p>

<p>1. Certiorari—Corporation—Misnomer.</p> <p>Where the writ of ceriiorwri names “The Trustees of the New York and - Brooklyn Bridge,”as “The Board of Trustees of the New York and Brooklyn Bridge,” it is not a fatal misnomer and will not defeat the proceeding, where there is no doubt as to the identity of the corporation.</p> <p>2. Brooklyn Bridge—Policemen—-Removal.</p> <p>Section 1, chapter 710 of 1894 relates merely to procedure and does not' preclude the courts from reviewing a decision of tire trustees, discharging a • • policeman from determining the sufficiency of the evidence.</p>

<p>1. Negligence—Electric railroad company.</p> <p>An electric railroad company is liable for injuries by its wires, whether , the street has been opened liy legal proceedings or not, in case it is publicly used.</p> <p>2. Same.</p> <p>To put a cable or wire in the bed of a gutter on a public street for a distance of thirty feet or more and raise it suddenly, without taking any means to notify persons on the street of its presence or the intention to lift it, is clearly negligent as to any one lawfully upon the street, who is injured thereby while in the exercise of due care himself. So held, where, while an electric railroad company was raising on poles a feed wire, a small hoy, starting to cross the street, steeped across the wire, which lay in the gutter, just as it was suddenly, without any notice of its presence or intention to lift it, raised, with "such force that the boy was thrown . many feet in the air.</p>

<p>1. Bills and notes—Presumption.</p> <p>Upon the production of a note by the plaintiff, there arises a presumption that he is the owner of it.</p> <p>2. Same.</p> <p>From the mere fact of a delay to sue a strictly legal claim where the statute of limitations has not run against it, no presumption of payment can he raised.</p> <p>8. Same—Evidence.</p> <p>In an action on a note, proof that the maker, in a conversation with one of the payees, claimed to have paid it and to have a receipt therefor, which he did not produce when requested to do so, is not competent to establish payment.</p> <p>4. Same.</p> <p>The evidence, in this case, was held insufficient to prove payment.</p> <p>5. Appeal—Harmless error.</p> <p>Where the evidence given to prove a defense is entirely insufficient, a new trial will not he granted for errors in the admission of evidence oifered merely to rebut such defense.</p>

<p>Appeal from a judgment, entered, on a verdict in favor of plaintiff.</p>

<p>Municipal corporation—Fire board—Inspector.</p> <p>- A removal of an inspector of combustibles by the fire board for issuing permits for the sale of fireworks in violation of the rules of the board will not be disturbed, where it appears that such inspector, though he acted on reports of surveyors appointed hy the board, negligently accepted meager and insufficient reports and issued permits for tenement houses and other houses, which were probably occupied by persons other than the applicants.</p>

<p>Appeal from a judgment for plaintiff, and from an order denying a motion for a new trial made on the minutes.</p>

<p>1. Wills—Cokstbuctioiv</p> <p>The will, in this case, was construed to provide (1) that the husband and daughter shall have the income to the estate during their joint lives, and, upon the death of either, that the survivor shall, for the rest of her or his life, have the share of the decedent; (2) that, after the expiration of these life estates, the estate shall go to the daughter’s issue, at the age of 21; and (3) that, in default of such issue, it shall go to the cousins of the daughter, who are the nieces and nephews of the testatrix,</p> <p>2. Same.</p> <p>A gift or devise to a person at his majority, or a direction of payment or transfer to him at that time, imports a condition subsequent not precedent, which permits the vesting of the estate or interest and merely defeats it on , the nonfulfillment of the condition.</p> <p>3. Same.</p> <p>Where nothing is interposed between an infant and his enjoyment of the possession of an estate, except his own minority, he has a vested interest,</p> <p>4. Lis pendens—Effect of.</p> <p>A person cannot, after the filing of a lis pendens, obtain a title from a party to the'action which will defeat the judgment, though the conveyance is made under a power in a will.</p>

<p>Appeal from a judgment for defendant, entered on a decision dismissing the complaint on plaintiff’s opening.</p>

<p>1. Evidence™Admission oe Improper-Remedy.</p> <p>In an action for damages to land caused by water leaking from a city reservoir, and also for permanent injury caused by the location of the reservoir, evidence of depreciation in value of the land from proximity to the reservoir is clearly inadmissible.</p> <p>2. Same.</p> <p>In the absence of a motion to strike it out or an instruction to disregard it, it is impossible to say that the error was cured by an instruction that the erection of the reservoir gave plaintiff no right of action, and that his-right of recovery was limited to the injury to the rental or usable value of the land to the commencement of the action and such permanent injury thereto as had been caused by leakage from theyeservoir.</p>

<p>Motion for a new trial on a case and exceptions, ordered to be heard in the first instance in the appellate division.</p>

<p>Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.</p>

<p>% Contract—Reformation—Evidence.</p> <p>In an action to reform, a written contract, parol evidence of a mistake-therein must he most clear and convincing.</p> <p>2. Same.</p> <p>The evidence, in this case, was held not to justify the reformation of thecontraet.</p> <p>3. Judgment—Vacation.</p> <p>Though an assignment of a mortgage does not express the agreement a® it was understood by the assignors, they are not entitled to have the judgment foreclosing said mortgage vacated and to he permitted to serve an answer where the assignee parts with her interest in reliance upon the covenant of guaranty and refrains from bidding at the sale, in further reliance thereon, and it is impossible for the parties to be restored to their original position.</p>

<p>Motion for a resettlement of the order of reversal.</p>

<p>Appeal from a judgment in -favor of plaintiff,, entered on a trial by the court without a jury.</p>

<p>1. Appeal—Objections waived.</p> <p>Where a demurrer to a counterclaim is treated by the court and counsel as sufficient in form, it will not be held insufficient on appeal. . .</p> <p>3. Pleading—Counterclaim—Demurrer.</p> <p>A demurrer may be taken to a counterclaim containing denials, the effect of which is to negative the existence of any relation between the defendant and the plaintiff and thus show that "the cause of action relied upon as a counterclaim cannot have arisen out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim and cannot have been connected with the subject of the suit.</p>

<p>. Appeal from a judgment in favor of plaintiffs.</p>

<p>Appeal from, an interlocutory judgment overruling a demurrer to the complaint.</p>

<p>1. Ejectment—Defense.</p> <p>The plaintiff’s right to recover, in an action of ejectment, cannot be defeated by the fact that the defendant has abandoned possession of the premises after the action was brought.</p> <p>S. Adverse possession—Constructive.</p> <p>Section 369 of the Code does not apply to a grant to a railroad company of land under water, consisting of a series of strips extending a distance of 140 miles, but the adverse possession will in such case he confined to</p> <p>, the portion,actually occupied by the grantee</p> <p>3. Tenants in common—Eights of cotenants.</p> <p>Where a railroad company, pending an action to remove its tracks from certain land, acquires an undivided interest in the laud, a judgment directing the removal of the tracks is erroneous, as neither party has a right to exclusive possession.</p>

<p>Appeal from a judgment for plaintiff, entered upon the decision of the court without a jury, and from an order amending the complaint on the trial.</p>

<p>Appeal from a judgment dismissing the complaint.</p>

<p>1. Fraudulent conveyances—Action to set aside.</p> <p>In an action, in the nature Of a judgment,creditor’s action to reach the property of the judgment debtor, or its proceeds, and have it applied in satisfaction of the judgment creditor’s claim, the judgment creditor can take the same proceedings against personal, that lie can real, property, and it makes no difference whether the conveyance by which the debtor lias disposed, „or attempted to dispose, of his property is void because fraudulently made, or void for any other reason, so long as it is void against the proceeding creditor.</p> <p>%. Same—Appropriate relief.</p> <p>If the judgment creditor, in such action, fails to ask for the apnropriate relief, is is no reason why he should be denied all relief.</p> <p>:S. Equity—Judgment.</p> <p>The rule that, when equity has obtained jurisdiction of the parties and the subject-matter of the action, it may adapt the relief to the exigencies of the case, even to the extent of rendering a personal judgment, in order to prevent a failure of justice, applies when the general basis of fact upon which equitable relief is sought has been made out, but for some reason it becomes impractible to grant such relief, or where it would be insufficient.</p>

<p>Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.</p>

The action relates to lots six and seven, of township thirty-eight, of Totten & Crossfield’s purchase, in the town of Long Lake, Hamilton county, N. Y. Negotiations were had between Webb and Morrison with reference to the purchase at Smith’s Lake, upon which the lands were located, on the 15th and 16th of June, 1891, and Webb claims such negotiations related to the whole of Morrison’s interest in the whole of the two lots, and that they resulted in an agreement to purchase…

<p>1. Pleading—Complaint—Creditors’ bill.</p> <p>Where the complaint, in an action to set aside a transfer of property by a decedent, alleged that said decedent died insolvent; that, before his death, he transferred most of his property to defendant, with intent to defraud his creditors; that, by his last will, defendant was appointed his executrix; that she qualified and is now acting; that she claims the property so transferred to her as her own; that decedent left no other property with which to pay his debts, and asked that such transfer be adjudged, fraudulent and void, and that the property be applied in payment of ail creditors of the decedent, the averments of the complaint are sufficient to bring the case within chapter 487 of 1889.</p> <p>2. Same—Joinder op causes op action.</p> <p>In such case, both the assignee and the representative of the assignor should be before the court, and the objection that there is an improper joinder of actions and that the defendant as executrix is not properly in court, are not «well taken.</p>

<p>, 1. Insurance—Lite—Beneficiary.</p> <p>Where, in an action on a life insurance policy, it appears that the first policy issued named plaintiff's wife as beneficiary, and the policy was delivered to her and the premiums paid by her and plaintiff, and afterwards his wife died and the agent of the company told him that a new policy should be issued, which was done, and the beneficiary therein specified was “Estate,” the word “Estate" refers to the estate of the beneficiary named in the original policy.</p> <p>2. Trial—Objection.</p> <p>The objection that the loss was not proved upon blanks provided by the company, if it is to he insisted upon, should he made when the proofs of loks were first Submitted to the company, and cannot be raised on the trial of the action.</p>

<p>Appeal from, a judgment, entered on a verdict for plaintiff,, and from an order denying a motion for a new trial.</p>

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

<p>1. Building contract—Interference by owner.</p> <p>Owners cannot, by reason of a provision in a building contract that the work is to be done at the convenience of the owners, refuse to permit the contractor to do certain work on the building until after the time for the completion thereof, and then claim, in an action for the contract price, that the contractor failed to complete the building within the time agreed.</p> <p>2. Same—Liquidated damages.</p> <p>Where such contract fixes a certain sum as liquidated damages for each day’s delay in completing the work within the time agreed, and it appears that the owners prevented the contractor from completing the work within such time, though the owners are not responsible for the whole delay, they cannot recover for any portion thereof.</p> <p>3. Same.</p> <p>In such case, where the contractor allows the contract day to go by, at the request of the owners, he can only be made responsible for neglect and cannot be held under the contract. •</p> <p>4. Same.</p> <p>Where the contractor is absolved from the obligation of comoieting the building on the day fixed by the express action of the owners, such obligation cannot be renewed except by express contract.</p>

The action was brought for an accounting by plaintiffs, as trustees under the will of Evelyn G. Marshall. The testatrix had three daughters, one of whom was of unsound mind. By her will the testatrix divided her estate into three equal parts.

<p>Appeal from an order, vacating an inj'uncting enjoining defendants from requiring plaintiff to pay rent assessed for the use o£ property appurtenant to a wharf privilege.</p>

<p>1. Trusts—Deposit in savings bank.</p> <p>A deposit in a savings bank, made by the depositor in his own name, in trust for another, even when the book is retained, in the absence of attendant circumstances indicating a contrary intent, creates a trust in favor of the beneficiary.</p> <p>2. Same.</p> <p>The fact that the depositor drew the interest during his life time is not inconsistent with an intention to create a trust.</p> <p>3. Same. .</p> <p>Nor does the fact that the money deposited is to go to the beneficiary only on the depositor’s death, render the transaction a testamentary disposition.</p> <p>4. Presumption—Payment.</p> <p>The mere payment of money is not evidence of a loan, but raises a presumption that it was made in satisfaction of an antecedent debt.</p>

<p>Appeal from an interlocutory judgment overruling demurrer to a subdivision of the answer.</p>

<p>W ill—Construction.</p> <p>Where a testator devises several estates in fee and also one to the executor in trust for his son, with power to convey to the son in fee and also a general power to sell the whole estate, termination of the trust in favor of i the son by a deed to him does not preclude an exercise of the general ■ power of- sale.</p>

<p>1. Corporations—Receiver.</p> <p>A court of equity has no power to appoint receivers for corporations except as conferred liy statute.</p> <p>2. Same.</p> <p>Such court is without jurisdiction to appoint a receiver of a solvent corporation in contemplating dissolution, for the purpose of preventing crodtors from collecting their claims hy action.</p>

Action by Edward M. Muller against the Scandinavian & Finlanders’ Emigrant Company, Limited, and others, to set aside an assignment for the benefit of creditors. Judgment for plaintiff! ■Another creditor then moved for a reargument, and to set aside the judgment for want of consideration.

Judgment for costs for defendant on appeal to the, general term. Thereafter plaintiff recovered judgment, and moved to set off a judgment for costs against the second judgment The judgment for costs had in the meantime been signed.

Certiorari by the people on the relation of Connolly against Murray and others, constituting the board of excise, to compel said board to grant a liquor license,

<p>Excise—Refusal of license.</p> <p>Mandamus will lie only, where the refusal to license is placed on grounds which are clearly arbitary or illegal, and not where the discretion of the board has been exercised and not abused.</p>