Volume 73 — New York Appellate Division Reports

Appeal by the defendant, the Buffalo, Rochester and Pittsburgh Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 27th day of May, 1901, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 5th day of July, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles O. Hosier, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 25th day of November, 1901, upon the verdict of a jury convicting the defendant of the crime of attempting to commit rape, also from an order entered in said clerk’s office on the 22d day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes, also from an…

Appeal by the Rochester Trust and Safe Deposit Company ot Rochester, New York, as sole trustee for Frederica Sturges under the last will and testament of Sarah A. Brewster, deceased, from an order of the Surrogate’s Court of Monroe county, entered in said Surrogate’s Court on the 31st day of December, 1901, directing said trust company to pay to the petitioner Ida Graves Raymond, who is the sole residuary cestui que trust of the trust fund created by the will of one Sarah A.…

<p>Bond conditioned to pay for materials used in the execution of a city contract — coal used in generating steam, held to he covered hy it.</p> <p>Coal consumed in boilers used in generating steam power, which was essential to the performance of a contract to do certain city work in the construction of a retaining wall, is material furnished “ in or about the execution of such contract,” within the meaning of a bond given to secure the faithful performance thereof, which was conditioned that the contractor should ‘ ‘ well and truly pay for all material used and services rendered in the execution of such contract,” and that any person “ furnishing material or rendering services in or about the execution of such contract may maintain an action to recover for the same against the obligors * * * as though such person were * * * named therein.”</p>

Appeal by the plaintiff, Catherine Collins, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 3d day of September, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint upon the merits.

<p>A mortgagor who sells an equity of redemption in land to one who does not assume the mortgage remains primarily liable, although the vendee gives her bond to the holder of the mortgage for the payment thereof— property conveyed by the vendee to the holder of a deficiency judgment need not be applied to its payment before the filing of a creditor’s bill against the mortgagor — a voluntary conveyance is presumptively fraudulent as to creditors.</p> <p>Abby Potts, who had executed a mortgage upon a farm owned by her, conveyed the farm to one Jennie Huff by a deed containing no clause assuming the mortgage. Mrs. Huff subsequently executed a bond to the owner of the mortgage as collateral security for the payment thereof, and thereafter an action was brought to foreclose the mortgage which resulted in the entry of a deficiency judgment against both Mrs. Potts and Mrs. Huff, After executions on the deficiency judgment had been returned unsatisfied, Mrs. Huff conveyed to the assignee of the deficiency judgment certain premises in which she had an equity of redemption.</p> <p>In an action brought by the assignee of the deficiency judgment to set aside a conveyance made by Mrs. Potts to her son prior to the foreclosure of the mortgage, on the ground that such conveyance was fraudulent, it was Held, that, as Mrs. Potts was primarily liable for the amount of the deficiency judgment and Mrs. Huff was only a surety therefor, the former was not in a situation to insist that the plaintiff should have sold the premises conveyed to him by Mrs. Huff and have applied the proceeds upon the deficiency judgment before beginning the present action.</p> <p>Semble, that the rule that a judgment creditor must make a bona fide endeavor to collect his judgment against all of the judgment creditors before filing a creditor’s bill, assumes that all of the judgment debtors are liable in an equal degree and does not obtain if one of the judgment debtors is a surety and the other is primarily liable;</p> <p>That the fact that the conveyance by Mrs. Potts to her son was a voluntary one created the presumption that it was fraudulent.</p>

<p>Negligence — injury to a, canal boatman, passing at night to his boat over a railroad on the berme bank of the canal, by reason of a car standing upon the track being bumped against him—the questions of negligence and of contributory negligence rnre for the jury.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, a canal boatman, it appeared that the plaintiff’s boat was moored on the berme bank of the canal, adjacent to a flour mill and brewery, and that the defendant maintained for use, in conne'ction with the mill and brewery, a spur railroad track located on the canal lands; that on the evening of the accident the plaintiff went from his boat across the spur track to the city, and that about nine o’clock he started to return by the same route and that when he was. within five feet of a box car, which he had observed standing upon the track all day, he attempted to cross the track; that while he was doing so an engine-bumped some freight cars against the standing car, backing it upon the plaintiff and causing him to receive serious injuries. The night was dark and the* machinery in the mill and brewery were in operation, causing considerable noise. There were no lights on the box car or in the vicinity, and no warning-was given of the approach of the train, and the plaintiff testified that he did. not hear the noise of the cars or engine and was unaware of their approach.</p> <p>It did not appear by what authority the spur track had been laid upon the State lands, but it did appear that the track had been so maintained for many years. It also appeared that the only means of access to the city from boats moored at the berme bank was over the defendant’s track, and that for twenty-five years boatmen had used this route without interference.</p> <p>Held, that although the Constitution prevents the Legislature from selling or leasing the Brie canal, section 35 of chapter 388 of the Laws of 1894, giving the Superintendent of Public Works supervisory power over the canal lands and of any railroad within ten rods of the canal “to preserve the free and perfect use” of the canal, implied that a license or privilege may be accorded to a railroad company to construct its tracks and operate its cars upon the canal lands under the direction of the State authorities;</p> <p>That, therefore, the court must assume that the defendant was not a trespasser; That it was also deducible from the evidence that the plaintiff was not a trespasser in passing over the tracks;</p> <p>That, as the defendant must have known of the long-continued custom of the boatmen to pass over its tracks at the point in question, it was chargeable with the duty of exercising reasonable caution for their protection;</p> <p>That, upon the evidence, the question of the defendant’s negligence and of the plaintiff's freedom from contributory negligence should have been submitted to the jury.</p> <p>Davy, J., dissented.</p>

<p> Action for the conversion of money—a counterclaim for services rendered in the same transaction in which the defendant received the money from the plaintiff is proper. </p> <p>In an action to recover the sum of ninety-seven dollars, it appeared that the plaintiff, upon being accused of a crime, requested the assistance of the defendant and turned over to him the sum of one hundred and forty-two dollars. Out of that sum the defendant paid the plaintiff’s fine of twenty dollars, twenty-five dollars to the attorney who defended the plaintiff, and twenty dollars to another person who had interested himself in the plaintiff’s behalf, and retained the balance. The plaintiff only recognized as authorized the payment of the fine and of the attorney’s fee.</p> <p>Held, that, assuming that the action was in conversion, the defendant was entitled to interpose, as a counterclaim, a claim for the value of the services rendered by him to the plaintiff, as such counterclaim and the plaintiff’s cause of action originated in the same transaction.</p> <p>McLennan, J., dissented.</p>

<p>Appeal by the defendants, Charles E. Bell and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 1st day of October, 1901, upon the verdict of a jury for $175, and also from an order entered in said clerk’s office on the 1st day of October, 1901, denying the defendants’ motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, William M. De Garmo, Jr., from a judgment of the County Court of Livingston county in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 13th day of June, 1901, upon the verdict of a jury convicting the defendant of the crime of manslaughter in the first degree, and also from an order entered in said clerk’s office on the 13th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Walter Cary and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 2d day of December, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, adjudging certain tax certificates and tax deeds null and void.</p>

<p>Appeal by the plaintiff, John Wanamaker, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 30th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of November, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.</p> <p>The action was commenced in the Municipal Court of the city of Rochester, where the plaintiff obtained a verdict for the full amount demanded in the complaint. The defendant appealed to the County Court of Monroe county and demanded a new trial.</p>

Appeal by the defendants, Ella M. Billings and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 30th day of July, 1901, upon the decision of the court rendered after a trial at the Monroe Special Term.

<p>Amendment of a judgment which directs the payment of a sum stated less taxes, by directing that the cost of repairs and improvements be also deducted.</p> <p>Patrick Galligan, who had made an oral contract to devise a house and lot to Celia Galligan, died leaving a will by which he devised the house and lot to one Timothy Galligan. Celia Galligan then brought an action against Timothy G-alligan to compel the specific performance of the oral contract. The action resulted in a decision that the plaintiff was entitled to a deed of the house and lot and to recover of Timothy Galligan the sum of §600 for the use and occupancy of the property, less any amounts paid by him for taxes on the property -during his occupancy, the amount of such taxes to be determined upon an accounting unless the parties stipulated the amount thereof. Thereafter the plaintiff, without any accounting being had as to the taxes or a stipulation as to the amount thereof, caused a judgment, following the language of the decision, to be entered thereon.</p> <p>Subsequently, on motion of the defendant, an order was made setting aside the judgment and amending the decision so as to provide for an accounting as to the amount paid by the defendant during his occupancy of the property, for taxes and necessary repairs and improvements, unless the parties should stipulate as to the amount, and that the amount so determined should be -deducted.from the sum allowed for use and occupancy. The order appointed a referee before whom the, accounting should be had and provided for the entry of an interlocutory judgment.</p> <p>The defendant’s answer contained no allegation as to the payment of taxes or the making of repairs or improvements. No evidence upon that subject was. given at the trial, nor did the court make any findings of fact thereon. It did, however, appear by the affidavits of the defendant and his attorney that taxes, were in fact paid and repairs and improvements made.</p> <p>Held, that the omission in the original decision to provide for an allowance of the amount paid by the defendant for repairs and improvements was a mistake or inadvertence, not involving an error of judgment, and that it was competent for the court to correct such mistake.</p>

<p>Tax — supplementary proceedings to enforce—the motion cannot he made to a special county judge out of court.</p> <p>Under section 259 of the Tax Law (Laws of 1896, chap. 908), authorizing an application “to the court for the institution of proceedings supplementary to execution ” for the collection of an unpaid tax, it is necessary that the application shall be made to the court and the order instituting the proceeding be made by the court, and a special county judge has no power, upon an application made to him, to make such an order.</p>

<p> Receiving stolen goods—proof justifying a conviction thereof—competency of proof of the receipt of other stolen goods. </p> <p>What evidence given on the trial of an indictment, charging the defendant with having purchased a hide stolen by four boys, is sufficient to warrant the jury-in finding that the defendant purchased the hide with knowledge that it had been stolen, although it appeared that one of the boys, at the time of the sale, told the defendant that his father had removed the hide from a cow, considered. In such a case, evidence that some few days before the receipt of the hide in. question, the same four boys stole another hide and sold it to the defendant, and that at that time the defendant told the boys that he would buy all that they could bring, is competent on the question of the defendant's guilty knowledge as tending to show that the defendant placed no reliance upon the statement made by one of the boj'S that his father had removed the hide from a, cow.</p>

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

<p>Appeal by the plaintiff, Charles W. Waldron, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of October, 1901, upon the decision of the court, rendered after a trial before the court without a jury at the Erie Trial Term, dismissing the complaint upon the merits.</p>

<p>Removal of policemen in cities of the second class — the decision of the commissioner is not reviewable — remedy in case of dismissal in bad faith — the right to a pension in the city of Syracuse is not a vested right — motion to dismiss a writ of certiorari befm'e a retui n.</p> <p>The office of policeman, being a legislative and not a constitutional office, it was competent for the Legislature to provide in section 184 of the charter of cities, of the second class (Laws of 1898, chap. 182) that the decision of the commissioner of public safety in a city of the second class, dismissing a member of the police force, upon charges preferred against him, should be “ final and. conclusive and not subject to review by any court.”</p> <p>Such provision of the charter of second class cities is not unconstitutional as to a member of the police force of the city of Syracuse, in that it deprives him of rights in a certain pension fund which he had secured by virtue cf his appointment under the former charter of the city of Syracuse, as under such former charter his position was subject to a brdader power of removal than that contained in section 184 and as his appointment upon the police force did not give him any vested rights in such pension fund.</p> <p>A motion to dismiss a writ of certiorari, issued to review the action of the commissioner of public safety of a city of the second class in removing a member of the police force, on the ground that the decision was not reviewable, may be made and determined before any return is made to the writ.</p> <p>Semble, that if the commissioner of public safety should attempt to dismiss a member of the police force in bad faith or from improper motives and without any evidence justifying his action, the courts would entertain a proceeding to review the removal.</p>

<p>Appeal by the plaintiff, Henry W. Lynch, from a judgment of the County Court of Onondaga county in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the íth day of January, 1902, upon an order entered in said clerk’s office on the Jth day of January, 1902, reversing a judgment of the Municipal Court of the city of Syracuse entered upon the verdict of a jury for $1,000, unless the plaintiff stipulate to reduce the amount of damages to $300, in which case the judgment of the Municipal Court as so modified was to be affirmed, and also from the order of the County Court upon which said judgment appealed from was entered.</p>

<p>Appeal by the defendants, Laura M. Kimball and another, as executors, etc., of William S. Kimball, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the Yth day of January, 1902, upon the decision of the court rendered after a trial before the court without a jury at the Monroe Trial Term.</p>

<p>Appeal by the plaintiff, Edward R. Booth, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 28tli day of February, 1902, upon a nonsuit granted by the court at the Monroe Trial Term, after certain questions had been submitted to the jury and a verdict rendered in favor of the plaintiff.</p> <p>The judgment, which purports to have been entered upon the direction of the court granting a nonsuit, adjudges that the complaint be dismissed upon the merits. There appears to have been no formal order or decision directing that the motion for a nonsuit be granted and the complaint be dismissed.</p>

<p> Reformation of a contract —it may be obtained by a defendant in an action at law based thereon. </p> <p>In an action at law to recover the value of a quantity of hay, based upon a written contract, the defendant, upon proving that prior to the execution of the contract the parties arrived at an understanding in respect to the provisions thereof, but that, in reducing the contract to writing, through mutual mistake, they omitted some of such provisions, is entitled to have the contract reformed by inserting the omitted provisions where he has demanded such relief in his answer.</p>

Cboss-appeals by the plaintiff, Edwin G-. Thompson, and by the defendants, Samuel H. Easton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 10th day of December, 1900, upon the decision of the court rendered after a trial at the Onondaga Trial Term, a jury having been waived.

Appeal by the'defendant, Joseph Loehner, from a judgment of the County Court of Oneida county in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 12th day of February, 1902, upon the decision of the court, convicting the defendant of a misdemeanor in violating article 8, section 110 of chapter 415 of the Laws of 1897, known as the Labor Law.

Appeal by the defendant, Robert L. Fosburgh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 3d day of April, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the the 3d day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Contract of sale — no warranty pi'esumed—evidence of fraudulent representations and warranty, is not competent—independent agreement to take lack the thing sold,—a justices judgment sustained on a theory different from that on which the case was tried.</p> <p>Where, in an action brought in a Justice’s Court, it appears that the parties entered into a written contract, by the terms of which one of the parties rented to the other certain premises, in consideration of a colt, and the contract contains no language amounting to a warranty of the soundness of the colt, it must be assumed that none was intended.</p> <p>Semble, that oral evidence of negotiations preceding the execution of the contract, tending to show both fraudulent representations and a warranty, is incompetent.</p> <p>Where it appears that the defendant, upon being notified that the colt was unsound, told the plaintiff that he would give him fifty dollars for the colt in the fall, and would make it all right with him if the colt died prior to that time, such promise is founded upon a good consideration and, being collateral to and independent of the written contract, establishes a cause of action.</p> <p>Where, on an appeal from a judgment of a County Court, reversing a judgment rendered by a justice of the peace, it appeared that the justice’s judgment could not be sustained on the theory on which the case was tried in the Justice’s Court, but that it could be sustained upon a different theory, the Appellate Division considered that, under the rule requiring appellate courts, on appeals from justices’ judgments, to render judgment according to the justice of the case, without regard to technical errors or defects (Code Civ. Proc. § 3063), it was justified in reversing the judgment of the County Court and affirming that of the Justice’s Court.</p>

Appeal by Matthew Ryan, judgment debtor in supplementary proceedings, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 7th day of March, 1902, adjudging him guilty of a contempt of court and punishing him therefor.

<p>Appeal by the defendant, Fee Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 11th day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Solomon D. Rosenthal, guardian ad litem for the defendant, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of February, 1902, denying his motion to be made a party to the action. The defendant is an adult, and the order appointing a guardian ad litem, for her was made upon the ground that she is insane.

Appeal by the defendants, Panaghiote Yarelopoulos and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of April, 1902, overruling the defendants’ amended demurrer to the complaint upon the ground that said demurrer was frivolous.

Appeal by the plaintiff, Bartholomew Dunn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of Novemb er, 1901, upon the report of a referee. The action was brought to recover a balance alleged to be due for work, labor and services performed by the plaintiff, under a contract for the removal of rock and earth from a number of lots owned by the defendant.

Appeal by - the defendant, Margaret Donnelly, as trustee under the last will and testament of John E. Kaughran, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of May, 1902, striking out a demurrer interposed by said defendant to the complaint.

Appeal by The City of New York, from an order of the Supreme ■Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of August, 1901, confirming in part and refusing to confirm in part the report of commissioners of estimate appointed in the proceeding.

Appeal by the defendant, John F. Makley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1902, denying the defendant’s motion ta require the plaintiff to give security for costs.

Appeal by the defendant, Benjamin T. Rhoads, Junior, as general manager and as attorney in fact, representing all of the underwriters at the People’s Fire Lloyds, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 10th day of March, 1902, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of January, 1902, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 28th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of December, 1901, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by The People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of February, 1902, sustaining a writ of habeas corpus theretofore allowed in the action, and directing the discharge of the relator from the custody of the defendant.

<p>Appeal by The Empire City Fire Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of April, 1902, granting a peremptory writ of mandamus against The Empire City Fire Insurance Company and its acting officers and directors for the inspection of the books of the said company.</p> <p>The petitioner avers that he is the holder of about one-fourth of the capital stock of the Empire City Fire Insurance Company, and that from the reports of the company, which show a decrease in surplus and an increase in losses, and from its failure to continue the payment of dividends, he became alarmed for the security of his investments, but his request for specific information as to the financial management and condition has been refused; that he had made a formal offer to purchase all the stock of the company at par or above the market quotation, but such offer to the president and directors was not considered; that subsequently three serious fires in Norfolk, Va., in .Waterbury, Conn., and Paterson, N. J., occurred and he requested access to the books of the company, but was refused. In opposition to the motion made by the petitioner for a peremptory writ of mandamus for inspection of the books of the company, affidavits were submitted particularly with a view to showing that the petitioner Coats is not the real party in interest, but that he is acting for other persons who are bent on getting possession of the company for the purpose of throwing it into liquidation. Thus it is stated, and not denied, that Coats for many years has been employed as a stenographer by Price, who, with Baker, is endeavoring to get control of the company; and it is averred that within three months there was transferred to Coats upon the books of the company no less than $40,000 worth of stock, some of which had passed through Baker’s hands, who, it is conceded, has been actively engaged in purchasing the stock of this company, writing letters to stockholders derogatory of the company and offering them exceptional prices, and to the president himself the sum of $5,000 and an assured position in other work for stock transfers. The purposes of Price are disclosed by his letter to the president of the company in which he says he represents “the largest single owner ” and is desirous of obtaining control and is in a position to purchase all of the stock provided upon terms attractive to his principals, and he had recently purchased the Eagle Fire Insurance Company. In connection with such operations, particularly concerning the Hanover Fire Insurance Company, proof was offered that Price had been characterized and condemned in the Weekl/y 'Underwriter, an insurance periodical, as an avowed wrecker; and that the purchase and subsequent liquidation of the Merchants’ Fire Insurance Company, of which Price held stock, was similarly severely denounced by an insurance commissioner. There is but one affidavit in reply, which is by Price, and therein he asserts that Baker is not his agent, that all reference to him (Price) in the affidavits is irrelevant, that he does not intend to wreck the 'company, and that statements to that effect are untrue.</p> <p>The Special Term granted a peremptory writ to the petitioner' -commanding the company to exhibit to him “ and his attorney and -accountants all the books of accounts, vouchers and records and other papers * * * and all minutes * * * covering the period ffirom September 1, 1901, to the time of such exhibition, and to permit them and each of them freely to examine the same and to take extracts therefrom * * * from day to day during ordinary business hours and in such manner as not to interrupt more than necessary the business of the said corporation.” From the order so entered the insurance company appeals.</p>

Appeal by the plaintiff, S. Liebmann’s Sons Brewing Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, Wilhelm Lauter, entered in the office of the clerk of the county of New York on the 23d day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrer to the separate defense contained in the answer to the amended complaint, interposed by the defendant,…

<p>Appeal by the defendants, Marcus Witmark and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of April, 1902, denying the said defendants’ motion for leave to interpose a supplemental answer.</p>

Appeal by the plaintiffs, Justus Heilbronn and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Mew Yórk Trial Term.

Appeal by the plaintiff, Katharine Corcoran Herne, individually and as executrix, etc., of James A. Herne, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1902, denying the plaintiff’s motion for an injunction pendente lite restraining the defendants “from making any contracts for the production of the play ‘ Sag Harbor ’ at any but first class theatres,…

<p>Appeal by the defendant, Henry Heide, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of January, 1902, upon the verdict of a jury for §1,000, and also from an order-entered in said clerk’s office on the 11th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, August Prillen, from a judgment of the Court of Special Sessions of the Peace of the city of New York, entered in the office of the clerk of said court on the 31st day of January, 1902, upon the decision of the court convicting the defendant of a violation of section 343 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466).

Appeal by the defendant, Frank L. Froment, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of October, 1901, upon the decision of the court rendered after a trial at the New York Special Term, which judgment granted an injunction restraining the defendant from interfering in any manner with plaintiff’s property Ho. 48 Fast Seventy-fourth street, in the city of New York, and directed…

Appeal by the plaintiff, Oliver L. Jones, from, a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 23d day of December, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of December, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Landlord and tenant — counterclaim, in an action for rent, of damages for a preach of covenant by the landlord — right of a tenant in possession to refuse to pay rent —effect of a judgmeiit in summary proceedings against the tenant — waiver of damages.</p> <p>In an action brought to recover two installments of rent due under a lease which contained the following provision: “ The house and outbuildings to be wired for electric lights and fixtures furnished by the party of the first part,” the defendant, who was in possession of the demised premises at the time the installments of rent sought to be recovered became due, in his answer alleged as an equitable defense and counterclaim that prior to the execution and delivery of the lease it was agreed that the plaintiff should procure the introduction of an electric current into the wires and fixtures furnished by her so that the house and outbuildings could be illuminated by electricity; that this provision of the agreement had not been inserted in the lease through the fraud of the plaintiff, and that the defendant executed such lease by mistake, believing that the clause had been inserted therein.</p> <p>He further alleged that the plaintiff had not carried out such agreement. The relief demanded was the cancellation of the lease and the recovery of money damages, but the case was treated as though the defendant had also asked to have the lease reformed. Upon the trial the defendant conceded that he was dispossessed from the premises for non-payment of rent, and also expressly waived “ electric power damages.” The trial justice dismissed the counterclaim.</p> <p>Meld, that the judgment dismissing the counterclaim should be affirmed;</p> <p>Laughlin, J., dissented.</p> <p>That when the defendant conceded that he had been dispossessed for the non-payment of rent the trial justice was obliged to dismiss the counterclaim, as a judgment rendered in summary proceedings for non-payment of rent is conclusive between the parties as to the existence and validity of the lease, the occupation by the tenant, and that rent is due, and is a bar to an action brought by the tenant against the landlord to cancel the lease, even if this question were not litigated or considered in the summary proceedings (per McLaughlin and Patterson, JJ.):</p> <p>That the counterclaim was also properly dismissed for the reason that the violation by a landlord of a covenant contained in the lease will not relieve the tenant from the obligation to pay rent while he remains in possession of the premises (per McLaughlin and Patterson, JJ.);</p> <p>'That, in such a case, the tenant may maintain an action against the landlord to recover the damages resulting from the breach of the covenant, or he may counterclaim the same in an action brought by the landlord to recover the rent, hut that, as the defendant had, upon the trial, expressly waived “electric power damages,” which were the only damages claimed by him, the plaintiff was entitled to recover the rent reserved in the lease. (Per McLaughlin, Patterson and Ingraham, JJ.)</p>

<p>Appeal by the plaintiffs, Harry Content and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1902, vacating and setting aside an injunction order theretofore granted in the action, and denying the plaintiffs’ motion for a continuance of said injunction pendente lite.</p>

Appeal by the relator, Thomas H. Melledy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1902, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the relator, Thomas H. Melledy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of March, 1902, denying the relator’s motion to resettle an order entered in the office of the clerk of the county of New York on the 19th day of March, 1902, denying a motion for a peremptory writ of mandamus.

Appeal by the relator, Thomas Gf. Coyne, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of March, 1902, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, Felix Agnus, as manager and trustee of the “ Baltimore American and Commercial Advertiser ” newspaper, from an order of the Supreme Court, made at the New York Special Term and entered' in the office of the clerk of the county of New York on the 25th day of February, 1902, denying the said defendant’s motion to vacate and set aside a judgment in favor of the plaintiff entered in the action on the 4th day of February, 1902.

<p>Marketable title — omission from a lot, described by its number, of a portion thereof as it is described by metes and bounds—fifty years’ possession of a lot built upon is sufficient evidence of title.</p> <p>Upon the submission of a controversy as to whether the title to a lot in the city of New York, which the plaintiff had agreed to convey to the defendant, was marketable, it appeared that in 1848 the lot was conveyed to one Kennedy, by a lot number, including the whole of the premises, but was described by metes and bounds, which did not include a triangular strip of land six feet three inches by twenty-three feet eight inches, by twenty feet nine and three-quarter inches, located in the rear of the lot. This omission constituted the defendant’s sole objection to the title.</p> <p>It further appeared that, at the time of the conveyance, the lot, including the strip in question, was entirely inclosed; that in 1848 Kennedy erected a two- . story building upon the rear portion of the lot, including the strip in question; that Kennedy and his descendants retained possession of the premises up to 1897, when his granddaughter, who had succeeded to the title, conveyed the premises to the plaintiff.</p> <p>During the period which had elapsed since Kennedy acquired title to the lot, the strip of land in question had never been claimed by any person except Kennedy, his descendants and the plaintiff. It did not appear that there were in existence any heirs of Kennedy’s grantors, or any other person who could make a claim of title to such strip.</p> <p>Held, that the title to the premises was marketable, and that the defendant should be required to specifically perform his contract.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of December, 1901, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 23d day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louis Perlstein, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of December, 1901, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 18th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Wenzel Flor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the Jth day of March, 1902, and also from an order entered in said clerk’s office on the 3d day of April, 1902, resettling said first-mentioned order adjudging the defendant guilty of contempt of court, and directing that he be committed to the common jail in the city of New York.

Appeal by the defendants, the Baltimore and Ohio Railroad Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of June, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of June, 1901, denying the defendants’ motion for a new trial made upon the minutes and for a reargument of said…

Appeal by the defendants, Susanna Dietrich and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, construing the will of Peter Fuchs, deceased.

Appeal by the defendants, Mary A. Stephens and others, from •certain portions of a judgment of the Supreme Court in favor of the plaintiff and the defendant Wheeler, entered in the office of the clerk of the county of New York on the 24th day of March, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, construing the last will and testament of Richard N. Peterson, deceased.^

Appeal by the defendant, The Farmers’ Loan and Trust Company, as substituted trustee under the last will and testament of Caroline Wildberger, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Few York on the 15th day of February, 1902, upon the decision of the court, rendered after a trial at the Few York Special Term.

<p>Appeal by the defendants, William H. Earle and Frank T. Earle, as executors, etc., of William P. Earle, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 7th day of December, 1901, upon the decision of the court rendered after a trial at the New York Special Term.</p>

Appeal by the plaintiff, Catherine McCann, as administratrix, etc., of Simon McCann, deceased, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 11th day of February, 1902, setting aside the verdict of a jury in favor of the plaintiff for $5,500, and granting a new trial of the action.

Appeal by the defendant, Hattie Baumeister, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25tli day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes,

<p>Appeal by the plaintiff, John G. O’Keeffe, as receiver of the property of the Matt Taylor Paving Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Yew York on the 14th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Yew York Trial Term.</p>

<p>Appeal by the defendant, The Sun Printing and Publishing-Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of January, 1902, upon the verdict of a jury for $5,250, and also from an order entered in said clerk’s office on the 23d day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the Security Mutual Life Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of February, 1902, granting the plaintiff’s motion for a bill of particulars.</p>

■ Appeal by Mary B. Cheney and Dotha B. Hillyer, as executrices, etc., of Frances L. Bushnell, deceased, and another, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 14th day of March, 1902, determining the cash value of the interest of Emily Cheney Learned as a beneficiary under the last will and testament of Frances L. Bushnell, deceased, and assessing the tax thereon.

<p>Action for deceit —fraudulent representation that a landlord would consent to an assignment of a lease — one of the assignors of the lease having no knowledge of the fraud is liable —proof of scienter —punitive damages — measure of damages — an assignee not a pa/rty to summary proceedings cannoi'be removed thereunder.</p> <p>In an action for deceit it appeared that the defendants Herman Solomon and Lena Solomon, who were man and wife, conducted a butcher maiket under a lease which authorized them to conduct that business on the demised premises, but which provided that it should not be assignable without the consent of the landlord; that, at a time when the lease had about three years to run, the plaintiff purchased the business and store fittings from the defendants, in reliance upon a representation made by the defendant Herman Solomon, with knowledge that such representation was false, that the landlord would consent to an assignment of the lease. The landlord refused to consent to the assignment of the lease and declined to receive any rent from the plaintiff. The defendants having failed to pay the rent, the landlord instituted summary proceedings against them to recover possession of the premises, which resulted in a final order for their removal. The plaintiff was not a party to the proceeding, but vacated the premises upon being notified to do so.</p> <p>Meld, although the plaintiff, not being a party to the summary proceedings instituted by the landlord, could not have been removed from the premises under the final order made in those proceedings, that nevertheless the lease was thereby terminated and the plaintiff was not obliged to remain on the premises until he had been legally evicted;</p> <p>That, as it appeared that the property and lease belonged to both the defendants, and that they shared equally in the proceeds of the sale to the plaintiff, Mrs. Solomon was liable with her husband, notwithstanding that it did not appear that she made any false representations to the plaintiff or heard those made by her husband to him;</p> <p>That, upon the question of scienter, it was competent for the plaintiff to show that shortly before the sale of the property to him the defendants sold the property to one Bollman, and that by the direction of the defendants, Bollman, accompanied by the defendants’ son, went to the agent of the landlord to obtain his consent to the assignment of the lease, and that the agent of the landlord refused such consent and stated that the landlord did not want the butcher business continued upon the premises;</p> <p>That the defendants were chargeable with the knowledge obtained by their son on such visit with regard to the landlord’s attitude concerning the assignment of the lease;</p> <p>That it was error for the court to instruct the jury that if they found that the false representations were made willfully and with knowledge that they would not be carried out they might award punitive damages.</p> <p>Semble, that the measure of the plaintiff's damages would be the difference between what the plaintiff paid for the property purchased by him and the value of what he received, together with the value of the lease and good will over and above the rent reserved, and also any special damages properly pleaded for expenditures in moving and storing the chattels for a reasonable time until other premises could be secured.</p> <p>' Semble, that in actions for deceit only compensatory damages can be recovered, except where the wrong involves some violation of duty springing from a relation of trust or confidence, or presents other extraordinary or exceptional features clearly indicated and calling for an extension of the doctrine.</p>

Appeal by the defendant, William L. Morton, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to matters set forth as a separate defense and counterclaim in the answer.

Appeal by the relator, Albert T. Patrick, individually and as an executor, etc., of William M. Rice, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1902, denying the relator’s application for a writ of prohibition absolute and quashing and dismissing an alternative writ of prohibition theretofore issued in the action.

Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from an order of the Supreme Court, made at the New York Special Term, bearing date the 7th day of February, 1902, and entered in the office of the clerk of the county of New York, denying the defendant’s motion to modify a judgment in favor of the plaintiff, entered in said clerk’s office on the 17th day of January, 1902, upon the verdict of a jury, by striking therefrom the item of $5,553.33,…

<p>Appeal by the plaintiff, Alexander Frankenstein and another^ from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of April, 1902, confirming the report of a referee upon an accounting by a receiver of real estate in a foreclosure action and directing the distribution of the funds in such receiver’s hands.</p>

Appeal by tlic defendants, Henry H. Jackson and others, as executors and trustees under the last will and testament of Peter A. H. Jackson, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April, 1902, denying the defendants’ motion to vacate an order for the examination of the defendant Adrian H. Jackson before trial.

Appeal by the plaintiff, Mary W. Lennan, as executrix, etc., of John M. Lennan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of May, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 13th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Moses Kinzler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, E. Clifford Potter, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of January, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Eminent domain — land designated as a street on a map made and filed by the owner thereof—when, after it has been built upon and fenced for fifty years, the owner acquires a title and is entitled to a substantial award therefor.</p> <p>In 1850 William Jarvis, who owned a plot of land in what is now the city of New York, caused a map thereof to be made, on which the plot was laid out into streets and lots. The map showed three lots, numbered respectively 111, 112 and 113, located at the northwest corner of Waverly place and Prospect street. Waverly place, as laid out upon the map, was fifty feet in width.</p> <p>November 30, 1850, Jarvis and wife conveyed the three lots to Albert Ayres by a deed containing the following description: “All that certain lot, piece or parcel of land situate, lying and being in the town of West Farms, County of Westchester and State of New York, being the lots known and designated by the numbers 111, 112, 113, on a map entitled ‘ Map of Fairmount, Upper Morrisania, County of Westchester, and State of New York,’ made by Andrew Findlay, surveyor, dated Westchester, June 26th, 1850, and filed in the office of the Clerk of the County of Westchester, at White Plains, the premises hereby conveyed being bounded and described as follows on said map: On the southeasterly side by Prospect Street as laid down on said map, 100 feet; on the southwesterly side by Waverly Place as laid down on said map, 150 feet; on the northwesterly side by lot number 110 as laid down on said map, 100 feet; and on the northeasterly side by lot number 114 as laid down on said map, 150 feet, be the said dimensions more or less.”</p> <p>October 28, 1851, Ayres and his wife conveyed a portion of the property to William Hayward. The description in the deed stated that the premises conveyed were a part of lots Nos. Ill, 112 and 113, designated on the map, and then continued: “ The premises hereby conveyed being bounded as follows on the said map: Beginning at a point on the westerly side of Prospect Street distant 50 feet northeasterly from the northerly corner of Prospect Street and Waverly Place; from thence running northwesterly and parallel with said Waverly Place 150 feet; thence southwesterly and parallel with Prospect Street aforesaid 50 feet to Waverly Place; thence southeasterly along and parallel with said Waverly Place, 150 feet to Prospect Street; thence northeasterly along and parallel with said Prospect Street 50 feet to the place of beginning.”</p> <p>In 1852, before, so far as appeared, Waverly place had ever been opened or used by the public, or by the adjoining lot owners or any of the other lots had been sold by Ayres, Hayward built a house and fence upon his premises, which house and fence extended into Waverly place, as laid down upon said map, two feet and seventy-three one-hundredths of an inch. The premises as so inclosed and built upon have been occupied by Hayward and his grantees up to the present time.</p> <p>February 5,1880, the authorities of the city of New York filed a map indicating that Waverly place, as shown on the Findlay map, had been discontinued and closed.</p> <p>Thereafter they laid out a street which coincided with Waverly place as originally laid out on the Findlay map, and in 1897 a proceeding was instituted to acquire the fee of the street, in which the commissioners made a nominal award of one dollar to Hayward’s successor in title for the fee of the strip which had been built upon and inclosed by Hayward.</p> <p>Held, that Hayward’s successors in title were entitled to a substantial award for the strip in question;</p> <p>That the description in the deed from Jarvis and wife to Ayres, and in the deed from Ayres and wife to Hayward, was sufficient to include the fee of Waverly • place as laid out upon the map;</p> <p>That the occupation of the two feet and seventy-three one-hundredths of an inch of Waverly place by the building of a house upon it and the fence inclosing it, was adverse to the original grantor and the grantees of other lots, and that as to those persons such adverse possession had ripened into title;</p> <p>That as the strip in question had never been actually laid out, or used by any one as a street, the public never acquired any rights in the strip in question.</p> <p>O’Brien, J., dissented.</p>

Appeal by the plaintiff, Annie M. Merrill, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of December, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 10th day of December, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Rosa Montresor Garrone, as administratrix, etc., of Angelo Garrone, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of March, 1902, vacating the taxation of the defendant’s costs and setting aside a judgment theretofore entered in favor of the defendant for the recovery of such costs.

<p>Appeal by the defendants, Carrie A. Fithian and George W. Smith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of March, 1902, denying the said defendants’ motion, made February 25,1902, to vacate and set aside a sale of real property under a judgment of foreclosure and to set aside the judgment so far as the same purported to foreclose a mortgage upon the property of the appellants, as legatees under the will of William Moore, deceased.</p>

<p> Partnership—authority cf one partner to bind his copartners—right of one who, in ignorance of the copartnership, makes a deposit with one partner for faithful service in the firm business, to recover it from the copm'tners. </p> <p>Each, member of a firm is the general agent of the firm in relation to all of the business conducted by it and can bind the firm by what he says and does within the scope of such business.</p> <p>Where one of the members of a firm, engaged in the business of conducting a hotel, with the knowledge and acquiescence of the other members of the firm, assumes the management of the hotel and obtains, from a person employed by him to act as steward and manager of a restaurant connected therewith, a deposit of §1,000 upon an agreement to return the same whenever the employee should give thirty days’ notice of an intention to retire from the employment, his copartners are liable to the employee upon the agreement, notwithstanding the fact that the employee did not learn of the existence of the partnership until after the death of the managing partner.</p>

<p>Appeal by the defendant, Clinton Beckwith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1902, vacating an order for the inspection of the firm books of 0. Peterson & Company, composed of the defendants Peterson and Beckwith and one Quackenbush.</p>

<p>Appeal by the defendant, William Weisenberger, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of the said court on the 11th day of April, 1901, upon the verdict of a jury, convicting him of the crime of receiving stolen goods, knowing the same to have been stolen, under section 550 of the Penal Code, and also from an order entered in said clerk’s office on the 11th day of April, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Partnership — action for its dissolution—it cannot be urged, for the first time on appeal, that the action was also for the partition of real property held by the partners as cotenants.</p> <p>In an action brought to secure the dissolution of a copartnership existing between the plaintiff and the defendant, and for an accounting and a sale of the partnership property, it appeared that the real estate upon which the partnership business was conducted was owned by the plaintiff and the defendant, and had been originally acquired by them as tenants in common under conveyances from different grantors. The plaintiff contended that suph real estate had, by the acts of the parties in dealing with it, become partnership propeity and might be sold under a judgment rendered in the action, while the defendant contended that such real estate was still held by the parties as tenants in common, and that it could not be sold in the present action.</p> <p>JSTo rights of creditors were involved, and upon the trial the court found, upon sufficient evidence, that the defendant’s contention was correct and refused to direct a sale of the real estate.</p> <p>Upon an appeal taken by the plaintiff from the judgment, it was Held, that the judgment should be affirmed:</p> <p>That the defendant would not be heard to urge for the first time upon such an appeal that the action could be sustained as one for a dissolution of the partnership and also for a partition of the real estate.</p> <p>Semble, that the action was not capable of being sustained as one for a partition of the real estate.</p>

<p>Negligence — collision between a hook and ladder truck and a street railroad car—a fireman riding on the former killed thereby —the fact that his widow received a pension is not to be considered— the probability of his promotion may be considered —proof of the salaries of higher positions is incompetent.</p> <p>In an action to recover damages resulting from the death of the plaintiff’s intestate, it appeared that a hook and ladder truck traveling westerly over Fifty-third street in the city of New York attempted to cross Madison avenue at a time when one of the defendant’s south-bound cars was approaching the intersection; that the intestate, a fireman, who was riding on the south side of the truck, about the middle thereof, seeing that a collision was imminent, jumped from the truck to avoid danger; that the car struck the truck and precipitated it upon the intestate, inflicting injuries upon him from which he died.</p> <p>Beld, that the jury were justified in finding that the intestate was free from contributory negligence;</p> <p>That the court properly charged the jury that in assessing the damages they should not take into consideration the pension 'which the decedent’s widow was receiving under the provisions of the Greater New York charter;</p> <p>That, as it appeared that there were higher positions in the fire department than that which the intestate occupied at the time of his death, the jury had a right to consider his prospect of advancement and the probability of his obtaining a higher position and earning a greater salary, but that the plaintiff was not, entitled to show the specific salaries which were attached to the higher positions.</p> <p>O’Brien, J., dissented.</p>

<p>Certiorari issued out of the Supreme Court, and attested on the 7th day of May, 1898, directed to Bernard J. York and others, composing the board of police commissioners of the police department of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings in relation to the dismissal of the relator from the police force of the city of New York.</p>

<p>Injunction to restrain a party from entering into the service of another in violation of his contract to serve the plaintiff— not proper where the services are neither special, unique nor extraordinary — effect of the servant’s recognition of a corporation organized to succeed his original master.</p> <p>Persons, having the agency for the sale in the United States of the wines manufactured by a French firm, who employ a salesman to sell their goods for a, term of five years under a written agreement by which the salesman agrees that during such term he will not accept a position with any other wine dealer, are not entitled, in the event of the saleman’s announcing his intention of accepting a position with a rival wine dealer during the prescribed period, to an injunction restraining him from so doing, where it does not appear that the-services rendered by the salesman in question were of a special, unique or extraordinary character, but on the contrary it does appear that his employers, employed a large number of other persons to perform similar duties.</p> <p>Semble, that the recognition, by a party contracting to render services to a firm, of a corporation organized to succeed it binds him to continue to render the services to it.</p> <p>Patterson, J., dissented.</p>

<p>Appeal by the defendant, William R. Willcox, as commissioner of parks for the boroughs of Manhattan and Richmond in the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1902, granting the plaintiffs’ motion for an inj xmatiowpendente lite.</p>

Appeal by the defendant, Maria Anna Herter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of January, 1902, upon the report of a referee.

Appeal by the defendants, Peter F. Kane and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1902, denying the defendants’ motion to set aside and vacate a judgment theretofore entered in the action and for a new trial on the ground of surprise and newly-discovered evidence.

<p>Amendment on the trial as to the State in which the defendant was incorporated— action for libel—proof of a publication after the action was begun—statute of . another State making the act charged a crime — it must be pleaded.</p> <p>The judge presiding at the trial of an action may allow a mistake in the complaint, which charges that the defendant is a New York corporation, when, in fact, it is a New Jersey corporation, to be corrected by amendment.</p> <p>In an action of libel it is error for the court to admit in evidence articles, published in the defendant’s newspaper after the commencement of the action, referring to the same general subject mentioned in the articles upon which the action was based.</p> <p>Where the articles upon which the action was based charged the plaintiff with having committed adultery in the State of New Jersey, proof of a New Jersey statute, not pleaded in the complaint, making adultery a crime, is not admissible.</p>

Appeal by the petitioner, John J. Shaughnessy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1902, denying the petitioner’s motion for a peremptory writ of mandamus.

<p>Appeal by the plaintiff, James Cordon Bennett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1902, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

<p>Appeal by the relator, Matthew A. Tully, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1902, dismissing a writ of habeas corpus and remanding the relator to the custody of the warden of the county penitentiary of the county of New York.</p>

<p>Equity — action to recover stock pledged, an accounting of the dividends declared, thereon, and a determination of the amount of the pledgor's debt—no tender is necessary before suit—a transfer of stock is subject to equities therein—the six years’ Statute of Limitations applicaMe to a right to redeem—where an accounting is necessary the ten years’ statute applies—what laches will not defeat the action.</p> <p>George A. Treadwell, being the owner of a certificate for 100 shares of stock, in 1888 indorsed the same in blank and delivered it to one Thomas as agent for one Bennett as security for an account. In 1893 Thomas, without the consent of Treadwell, sold the stock to one Burgess at private sale. Thereafter in June, 1893, Burgess assigned the stock to one Clark. In August, 1893, Treadwell made a demand upon Clark for the possession of the certificate, which demand was refused. September 16, 1893, Clark surrendered the certificate to the corporation which issued it and obtained a new certificate to himself in place thereof. November 9, 1899, Treadwell brought an action in equity to recover the possession of the certificate of stock upon payment of the amount of his debt to Bennett, and to secure an accounting of dividends which had been earned on the stock and paid to the defendants, and also “in case said corporation be dissolved that he should recover the said dividends from the defendant William A. Clark with interest, and should further be entitled to participate as a stockholder in the proceeds of any sale * * * of the defendant company.”</p> <p>The corporation which issued the certificate of stock, Bennett, Thomas, Burgess and Clark were all made parties to this action.</p> <p>Held, that the plaintiff was entitled to maintain the action, as the relief which he sought, namely, the certificate of stock and the interests accompanying it, could only be obtained in an action in equity;</p> <p>That, as it appeared that the amount for which the stock had been pledged was in dispute, it was not necessary for the plaintiff to pay oi tender the amount before bringing suit, but that it was sufficient for him to offer in his complaint to pay the amount;</p> <p>That the rule respecting commercial paper, in the hands of third persons not chargeable with notice of equities existing between the original parties, does not apply to certificates of stock even if indorsed in blank;</p> <p>That the right of a pledgor to redeem is founded upon contract and in law is governed by the six years’ Statute of Limitations, which begins to run from the time of the denial of the pledgor’s right by the pledgee or those in privity with him;</p> <p>That, assuming that in the present case the six years’ Statute of Limitations began to run when Thomas assigned the certificate to Burgess, the Statute of Limitations did not constitute a bar to the maintenance of the present action, for the reason that the various assignments of the certificate and its surrender and cancellation, and the existence of the dispute as to the amount due on the original pledge, made it necessary for the plaintiff to bring an action in equity to secure the measure of relief to which he was entitled;</p> <p>That the ten years’ Statute of Limitations was applicable to such action in equity and that the earliest date which could be fixed as the time when it began to run was when the plaintiff learned that the certificate of stock was in the possession of Clark;</p> <p>That, independent of the question of the Statute of Limitations, the plaintiff had not lost his right to maintain the action by reason of laches.</p> <p>Ingraham, J., dissented.</p>

<p>Penalty for the sale, by the producer, of adulterated milk—proof is wcesswy that a sample was taken from the mixed milk of the herd of cows — taking a sample from the poorest of fifteen cans examined is unjust.</p> <p>A civil action brought against a producer, as distinguished from a mere seller, of milk, to recover the penalty prescribed by the Agricultural Law (Laws of 1893, chap. 338, as amd.) for selling adulterated milk, cannot be maintained without proof of compliance with section 12 of the Agricultural Law, which provides: “ In taking samples of milk for analysis * * * where the same is delivered by the producer * * the said commissioner of agriculture or assistant or his agent or agents shall within ten days thereafter, with the consent of the said producer, take a sample in a like manner of the mixed milk of the herd of cows from which the milk first sampled was drawn and shall deliver the duplicate sample to the said producer and shall cause the sample taken by himself or his agent to be analyzed. If the sample of milk last taken * * * shall upon analysis prove to contain no higher percentage of milk solids or ho " higher percentage of fat than as the sample taken (referring to the first sample), * -x- * then no action shall lie against the said producer,” etc.</p> <p>Semble, that where a milk wagon contains thirty cans of milk, and an inspector employed by the Agricultural Department examines fifteen cans, it is manifestly unjust for him to take samples from the poorest one of them.</p>

Appeal by the plaintiff, James A. Mulligan, as administrator, etc., of James Mulligan, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 17th day of June, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiff, Nathan Simonowitz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of February, 1902, granting the defendant’s motion for a new trial upon the ground of newly-discovered evidence.

<p>Appeal by the defendants, the Metropolitan Street Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of June, 1901, upon the verdict of a jury for $25,000, and also from two orders, each bearing date the 29th day of May, 1901, and entered in said clerk’s office, denying two respective motions for a new trial made upon the minutes.</p>

Appeal by the petitioner, James Martin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of April, 1902, denying the petitioner’s motion for an order directing the respondent to pay over to him certain moneys collected by said respondent as an attorney, with interest.

Appeal by the plaintiff, Julia Krauss, from an order of the Supreme Court, made at the ¡New York Special Term and entered in the office of the clerk of the county of ¡New York on the 14th •day of May, 1902, granting the defendant’s motion for a bill of particulars.

Appeal by the plaintiff, Rudolph Hilbrand, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of March, 1902, upon the report of a referee, awarding to the plaintiff a sum less than that for which the defendant had offered to allow judgment to be taken.

Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 13th day of May, 1902, declaring that there had been a mistrial of the cause and restoring the same to the day calendar.

<p>Examination of the defendants to enable plaintiffs to frame their complaint — not granted, to determine exactly what an accounting mil show, where the facts known, enable the plaintiffs to frame a complaint for an accounting.</p> <p>Stockholders of the American Malting Company brought an action against the members of the stock brokerage firm of Moore & Schley and one Bicks, an employee of that firm, to compel them to account to the corporation, which, was also made a party defendant, for secret profits alleged to have been realized by them during the organization of the corporation.</p> <p>After the service of the summons the plaintiffs made a motion for leave to-examine the individual defendants before trial, on the ground that such an examination was necessary to enable the plaintiffs to frame their complaint.</p> <p>From the moving affidavits it appeared that Moore & Schley were active in the-organization of the corporation and that, at the first meeting of the directors thereof, a large majority of the capital stock was issued to the defendant Eiclts. in consideration of his procuring conveyances of the property which the corporation sought to acquire and furnishing the corporation with a working-capital; that all of the stock so delivered to Bicks was not needed for the purposes mentioned, and that instead of returning the stock to the corporation a. portion thereof was issued to Moore & Schley, and the remainder was retained by Bicks. The plaintiffs’ theory'was that it was the duty of the individual defendants to return to the corporation the stock not used in the purchase of property and in the furnishing of a working capital.</p> <p>The object sought by the examination before trial was to obtain accurate information as to the amount expended by Moore & Schley in the purchase of property and in reference to the disposition of the stock of the corporation which, was not needed for that purpose.</p> <p>Held, that the plaintiffs were not entitled to the examination;</p> <p>That it appeared that the plaintiffs were in possession of the necessary facts to-enable them to frame a complaint for an accounting in equity for an accounting, and that it was not necessary for them to allege with definiteness or certainty what the accounting would show.</p>

<p> Payment of a decedent’s savings bank account to a foreign administrator, after letters of administration have been issued, in the State of New York. </p> <p>A resident of Hudson county, N. J., who died in that county leaving surviving her two minor children who also resided there, had at the time of her death about eighty-three dollars on deposit with a savings hank in the city of New York. The surrogate of the county of New York issued letters of administration upon her estate and some five months thereafter the surrogate of Hudson county, N. J., issued letters oí administration upon her estate to another person.</p> <p>Thereafter the savings bank in the city of New York, without knowledge of the appointment of the New York administrator, paid the amount of the deposit to the New Jersey administrator upon his presenting the pass book and a certified copy of his letters.</p> <p>Held, it not appearing that there were New York creditors whose claims would otherwise be lost, that the New York administrator was not entitled to maintain an action against the bank to recover the amount of the deposit.</p> <p>Patterson and O Brien, JJ., dissented.</p>

<p>Appeal by the defendant, Dietrich Tietjeu, from an order of the Supreme Court, made at the Few York Special Term, bearing date the 3d day of March, 1902, and entered in saio. clerk’s office, adjudging the defendant guilty of a contempt of court and fining him fifty dollars and the costs of the motion, to be paid to the plaintiff’s attorney within twenty days, and in default thereof providing for his commitment to the county jail in the county of Few York.</p>

Appeal by the plaintiff, George M. Miller, as trustee under the last will and testament of Edmund H. Miller, deceased, and by the defendants, George M. Miller and Edward S. Rapallo, as executors, etc., of Edmund H. Miller, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, George M. Miller, as trustee under a certain contract dated October 15, 1877, and also in favor of the defendant Frederic R. Coudert, Jr., as ancillary administrator with…

Appeal by the defendants, Samuel Marx and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of April, 1902, denying the defendants’ motion to compel the plaintiff to accept service of an order extending the defendants’ time to answer or otherwise plead to the complaint.

■ Appear by the plaintiff, Beatrice Presswood King, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of February, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 3d day of February, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 13th day of February, 1902, upon the decision of the court rendered after a trial at the Richmond Trial Term before the court without a jury-</p>

<p>Equity —jurisdiction of, over an action against the directors of an association, to recover for false representations which induced the plaintiff to purchase its stock — what complaint authorizes both legal and equitable relief—receivers of the association are not necessary parlies — action for deceit—it does not abate by the plaintiff’s death.</p> <p>The complaint in an action alleged that the defendants were directors of a savings and loan association, whose articles of incorporation provided that its funds should be invested in first mortgages upon improved real estate in an amount not exceeding sixty per cent of the appraised value; that the directors violated the articles by investing the funds of the association in second mortgages instead of first mortgages; that the defendants printed the articles of association and certain annual reports for general distribution as prospectuses to induce and effect the sale of its stock; that in reliance upon such statements, which were in fact false, the plaintiff’s testatrix purchased three shares of prepaid stock for §199; that the association had been adjudged insolvent and that receivers thereof had been appointed; that the defendants had organized a realty corporation which had taken over from the receivers all the assets of the corporation, nominally at fifty cents on the dollar; that no payment in cash was made to the receivers, but that they had taken back a second mortgage on certain real estate payable in three years without interest; that by reason thereof the amount and time when the plaintiff would realize anything upon the stock was problematical and uncertain, and, consequently, that he had no complete and adequate remedy at law.</p> <p>'The prayer for relief was that the defendants should indemnify the plaintiff and make good their false representations and repay the plaintiff the money so invested by the testatrix.</p> <p>Held, that a demurrer to the complaint should be overruled;</p> <p>That courts of equity and courts of law have concurrent jurisdiction in actions brought against directors of a corporation, by persons who have purchased stock therein in reliance upon fraudulent representations made by the directors, to recover damages for the fraud;</p> <p>That the complaint stated a cause of action in equity, and that the plaintiff was justified in resorting to equity for relief for the reason that the complaint alleged that the plaintiff had no adequate remedy at law and that he did not demand as relief simply the amount invested by his testatrix, but prayed for indemnity, which consisted of the value of the stock as the defendants represented it to be, less such sums as might come to her estate through the final adjustment of the association’s business, and for the further reason that in equity the fraudulent intent of the defendants need not be proved while at law it must be;</p> <p>That the complaint also demanded legal relief as the prayer thereof was sufficient to permit the plaintiff, if he should so elect, to take a judgment on default for the sum of money invested by his testatrix (per Goodrich, P. J.);</p> <p>That the receivers of the association were not necessary parties to the action (per Goodrich, P. J.);</p> <p>That the cause of action was founded simply upon the deceit of the directors and that there was no other cause of action alleged (per Goodrich, P. J.);</p> <p>That the cause of action did not abate by the death of the plaintiff’s testatrix (per Goodrich, P. J.).</p>

Appeal by the contestant, Robert E. Hopkins, Jr., an infant, by his special guardian, from a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court outlie 17th day of August, 1901, admitting to probate a certain paper propounded as the last will and testament of Robert E. Hopkins, deceased.

Appeal by the relator, Charles Clifton, from an order of the County Court of Queens county, entered in the office of the clerk of the county of Queens on the 6th day of Hay, 1902, dismissing the writs of habeas corpus and certiorari theretofore issued in the action and remanding the relator to the custody of the sheriff of Queens county.

<p>Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Orange county in favor of the defendant, entered in the office of the cleric of the county of Orange on the 13th day of February, 1902, upon the decision of the court sustaining the defendant’s demurrer to an indictment for a misdemeanor under subdivision 1 of section 384h of the Penal Code of the State of New York.</p>

<p>Appeal by the defendants, Bernath Krausz, as marshal of the city of New York, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 26th day of April, 1901, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 29th day of April, 1901, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the New York and North Shore Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 19th day of October, 1901, upon the verdict of a jury for $5,000, and also from an order bearing date the 18th day of October, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Tillie Conklin and another, as executors, etc., of Mary Gravelius, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of April, 1901, upon the report of a referee. '

<p>Negligence— liability of the owner of a building, being altered for a new use, to an employee of one contractor injured by reason of its dangerous condition caused by the negligence of another contractor.</p> <p>An owner of a building who employs a contractor to transform it from a warehouse into a sugar refinery is not liable to a person in the employ of a corporation engaged to do the electrical work in the building for injuries sustained by such employee while the building was entirely given up to the work of alteration, in consequence of his falling through a hole in a floor of the building his view of which was obstructed by an accumulation of rubbish, where there is no evidence that the owner exercised any control whatever over the building, or, at least, over that portion of it in which the injured employee was at work.</p>

<p>Appeal by the plaintiff, Frank Kueckel, from a judgment 'of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of November, 1901, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the defendant, William G. Triest, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Kings on the 6th day of June, 1901, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 22d day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Town of Mount Hope, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of May, 1902, denying the defendant’s motion to change the place of trial of the action from the county of Kings to the county o<f Orange, for the convenience of witnesses.</p>

<p>The title to real estate purchased for the benefit of three persons taken in the name of one of them — right of the other two to compel the third person to account — the use of the word “copartnership” in a complaint to enforce the agreement is not conclusive as to the cha/racier of the transaction.</p> <p>The complaint in an action, brought by the sole devisees under the will of Abram Wakeman against the heirs at law of John J. Latting and Anna Somarindyck, the devisee under the will of John W. Somarindyck, alleged that in 1875 Wakeman and Latting, being the owners of a parcel of real property which was subject to a mortgage for §15,000, “entered into an agreement of copartnership with one John W. Somarindyck, whereby it was mutually understood and agreed that the parties thereto should engage in real estate speculations, the said Wakeman and said Latting to act as attorneys and agents under the said agreement and to use their discretion and give their advice concerning the propriety of all investments, and said Somarindyck to furnish the requisite funds for such investments, the title to all of said property to be taken in the name of Somarindyck in trust for the benefit of Wakeman and Latting, and it was further understood and agreed by and between the parties thereto that said Somarindyck was to be reimbursed for his advancements in respect to all purchases, either by cash repayments or by sale, all surplus arising upon such sale, after payment of all legal interest and expenses, to be turned over to said Wakeman and Latting, and upon such reimbursement the property to be conveyed to said Wakeman and Latting. ”</p> <p>It further alleged that “under the terms of copartnership ” an agreement was entered into between Wakeman, Latting, Somarindyck and the mortgagee, pursuant to which an amicable action to foreclose the mortgage was brought and was prosecuted to a judgment of foreclosure and sale; that “in accordance with the said copartnership contract” Wakeman and Latting agreed with Somarindyck that upon the said foreclosure sale the property should be bought by Somarindyck for §16,000, very much less than the value thereof, but “should be held by him in trust for the said Wakeman and the said Latting as collateral security ” for the payment to Somarindyck by Wakeman and Latting of the amount expended by Somarindyck in the purchase of said property “and legal interest on said amount, and should be reconveyed to the said Abram Wakeman and the said John J. Latting, or their heirs or assigns, upon payment of said amount and interest,” and in case of non-payment thereof Somarindyck should have the right to sell said property and to retain said amount and interest, but to return the surplus, if any, to Wakeman and Latting or their heirs, assigns or devisees; that, in pursuance of such agreement, the property was sold in foreclosure and bid in by Latting' in the name of Somarindyck for §16,000 and a referee’s deed procured and recorded; that various transactions were had between Wakeman and Somarindyck, under and in pursuance of such copartnership agreement, and said Somarindyck conveyed-the property involved therein to said Wakeman, or his successors in interest, after the payment of the advances by him, with interest thereon; that, in 1880, §5,000 was paid to Somarindyck on account of his claim, being an award in condemnation proceedings instituted by a railroad company, which sum and interest should be credit.ed to plaintiffs; that in 1896 Somarindyck died, and that in 1898 the defendant Anna Somarindyck conveyed a portion of said premises and received a consideration therefor largely in excess of §16,000; that since 1878 said defendant has rented said premises, the rents of which, less the taxes and assessments, should also be credited to plaintiffs, and that said Wakeman and Latting fully performed all the covenants on their part in said copartnership agreement contained.</p> <p>The plaintiffs demanded judgment that the residue of the property be declared to be held by the defendant Anna Somarindyck in trust, one-half for the plaintiffs and one-half for the other defendants, and that the defendant Anna Somarindyck be directed to convey the property accordingly and to account to the plaintiffs and the other defendants.</p> <p>Upon an appeal from a judgment, dismissing the complaint apparently upon the ground that, as the complaint alleged the agreement between the parties to be a partnership agreement, no action could be brought thereon by the plaintiffs as devisees of Wakeman until an accounting of the partnership affairs had been had, the real estate in the meantime retaining the character of personal property,</p> <p>Meld, that the judgment should be reversed;</p> <p>That the use in the complaint of the term “ copai’tnership ” to characterize the agreement between the parties was not conclusive as to the true nature thereof;</p> <p>That from the terms of the agreement as set out in the complaint it was evident that John W. Somarindyck was interested in the profits only to the extent of reimbursement for the amount which he might expend in the purchase of real estate together with interest on that amount, and that this was not sufficient to constitute him a partner;</p> <p>That the facts set forth in the complaint, if established, were sufficient to entitle the plaintiffs to an accounting from the defendant Anna Somarindyck as trustee.</p>

Appeal by the defendant, The City of New York, from that portion of an interlocutory judgment of the Supreme Court, partly in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 16th day of September, 1901, upon the decision of the court, rendered after a trial at the Richmond Special Term, overruling the defendant’s demurrer to che third and fourth causes of action set forth in the complaint.