Volume 74 — New York Appellate Division Reports

Appeal by the plaintiff, Nicholas Smith, by his guardian ad litem,.Catherine Smith, from a judgment, of the Supreme Court in favor . of the defendants, entered in the office of the clerk of the county of Nassau on the 8th day of May, 1901, upon an order of the Supreme Court made at the Nassau Trial Term and entered in the office of the clerk of the county of Nassau on the 8th day -of May 1901, vacating and setting aside the verdict of a jury .in favor of the plaintiff for…

Appeal by the plaintiff, Andrea Lauro, 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 27th day of June, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of June, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Sarah Jane Talmage, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 8th day of ¡November, 1901, upon the decision of the court, rendered after a trial at the Queens County Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendant, the North German Lloyd Steamship Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of January, 1902, upon the verdict of a, jury rendered by direction of the court.

Appeal by the defendants, George W. .Hyatt 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 Westchester on the 29th day of- October, 1901, upon the verdict of a jury,, and also from an order entered in said clerk’s office on the 12th day of November, 1901, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal, by the plaintiff, Laura A. Weiant, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Rockland on the 3d day of January, 1902, changing the place of trial of the action from the county of Rockland to the.county of Westchester, and staying the trial thereof until the final determination of an appeal to the Court of Appeals in another action between the same parties.</p>

<p>Construction of bridges ^-compensation of municipal officers rendering services in connection therewith — each municipality acts in its corporate capacity — city of Mount Vernon.</p> <p>Under chapter 269 of the Laws of 1897 and the amendments thereof, which provide, “ Whenever the highway commissioners having power in the premises under this act shall decide that the public convenience requires a bridge to he constructed over the stream or rvaters dividing a city from a town or any incorporated village in said town, the same shall he constructed under and according to the provisions of the Highway Law for the construction of bridges between towns, being article five of chapter nineteen of the General Laws, the common council of the city being the highway commissioners of said city, and the board of village trustees of any incorporated village in the town being the highway commissioners of said village,” neither the corporation counsel of the city of Mount Vernon, nor the members of the common council of that city, nor the highway commissioner of the town of Pelham are entitled to any extra compensation for services rendered by them in the construction of a bridge across the Hutchinson river, which forms the boundary between the town of Pelham and the city of Mount Vernon, built pursuant to those.acts.</p> <p>The theory of the various acts on the subject is that the municipalities act through their highway commissioners, and there is no authority for employing any one, except in the construction of the bridges under contracts therefor. Each municipality may, however, acquire real estate necessary for approaches within its jurisdiction and include the cost thereof in the cost of the bridge.</p>

<p> Coupons—when detached, they are no longer subject to conditions contained in the bond, and mortgage. </p> <p>Interest coupons in the following terms: “Albany and Hudson Railway and Power Company will pay to the bearer hereof, at its financial agency in the city of New York¡ Twenty-five dollars (§25) in gold coin on the first day of A. D. .1 , being six months’ interest on its Mortgage Bond No. ,” accompanying corporate bonds, secured by a trust mortgage- which provides that the “coupons shall always be transferable by delivery," become negotiable instruments when detached from the bonds, and conditions contained in the bond and mortgage are thereafter inapplicable thereto.</p>

Appeal by the plaintiff, Evangelista Trapasso, as administrator, etc., of Vincenzo Renda, deceased, 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 18th day of December, 1900, 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 26th day of December, 1900, denying the plaintiffs motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Catharine Eccardt, from an. interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of November, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to the separate defense set up in the answer.</p>

Appeal by the plaintiff, Frank O. Clukies, from, an interlocutory judgment of the Supreme Court in favor of the defendant Otto T. Bannard, as receiver of the New England Loan and Trust Company, entered in the office of the clerk of the county of Kings' on the 23d day of December, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining a demurrer to the complaint.

<p>Certiorari issued out of the Supreme Court and attested on the 23d day of September, 1901, directed to Edward McCue and others, composing the board of assessors of the city of Rew York, and others, commanding them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings in relation to the assessment and taxation of certain property owned by the relator on Flatbush avenue, in the borough of Brooklyn, city of Rew York, county of Kings.</p>

Appeal by the defendants, John McKesson, Jr., and others, com-' posing the firm of “ McKesson & Robbins,” 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 17th day of April, 1902, as resettled by an order entered in said clerk’s office on the 29th day of April, 1902, overruling said defendants’ answer as frivolous and granting judgment as demanded in the complaint.

Appeal by the plaintiff, The City of Mount Vernon, 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 Westchester on the 18th day of April, 1902, denying the plaintiff’s motion for an injunction pendente lite.

Appeal by the defendant, the New York and Queens County 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 Kings on the 22d day of June, 1900, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 30th day of June, 1900, denying the defendant’s motion for a new trial made upon the minutes.

Appeal.by the defendant, Ada A. Jones, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of June, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term.

<p>Appeal by the relator, William Hughes, 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 14th day of May, 1902, denying the relator’s motion for a peremptory writ of mandamus, requiring the respondent to grade the said relator as a detective sergeant of police on the police force of the city of Hew York, with the rank and pay of sergeant of police in said city.</p>

Certiorari issued out of the Supreme Court, and duly attested, directed to Charles R. Skinner, as State Superintendent of Public Instruction of the State of New York, commanding him to certify and return to the office of the clerk of the county of Westchester all and singular his proceedings in setting aside the action of the electors of School district No. 1 of the town of Ossining.

Appeal by the defendant,. Emma A. Richardson, in bofh the above entitled actions- from interlocutory judgments, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of August, 1901 upon decisions of the court rendered after trials at the Kings County Special Term overruling demurrers to the complaints.

Appeal by the plaintiff, Mary Ledwith, as administratrix, etc., of James Ledwith, deceased, 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 19th day of December, 1900, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of December, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Bernard Naughton and another, composing the firm of Naughton & 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 2d day of November, 1901, upon the verdict of a jury for $4,750, and also from an order entered, in said clerk’s office on the.1st day of Rovember, 1901, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, the Fort Orange Paper Company, 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 4th day of March,. 1902, granting the plaintiff’s motion for a bill of particulars of certain items of the appellant’s answer.

Appeal by Giovanna P. Maresi and others, as executors, etc., of Pompeo Maresi, deceased, from that portion of an order of the Surrogate’s. Court of the county of Kings, entered in said Surrogate’s Court on the 30th day of September, 1901, which provides that the proceeding be remitted to the appraiser appointed to ascertain the amount of the transfer tax, to take testimony and report as to when the interest on a certain bond and mortgage amounting to $562.50 was due, and…

Appeal by the defendant, Richard C. Sibley, 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 11th day of June, 1901, upon the decision of the court rendered after a trial at the Queens County Special Term.

<p>Consent of abutting owners to bicycle sidepaths—it is only necessary when they are witliin the sidewalk lines — the word “along” construed.</p> <p>Under section 3 of chapter 153 of the Laws of 1899, as amended by chapter -640 of the Laws of 1900, which provides, “ No sidepath shall be constructed upon or along any regularly constructed or maintained sidewalk, except with the consent of the persons owning the abutting lands,” the consent of the abutting owner to the construction of a bicycle sidepath is.only necessary when" the sidepath is constructed within the lines of the sidewalk.</p> <p>The word “ along,” used in that section, is not. synonymous with the words “ alongside” or “ adjoining,” but was used in the phrase “ upon or along,” to complete the idea of superimposition.</p>

Appeal by the defendant, the Nassau National Bank of Brooklyn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st… Held: two promissory notes made by Mrs. Johnson to her own order, for the accommodation of her husband* indorsed by her and by her husband, for $1,600 and $500, which fell due on May 29 and June 16, 1900, respectively.

Appeal by the defendants, James H. Stout 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 Westchester on the lath day of September, 1900, upon the report of a referee. Judgment,affirmed, with costs, on the opinion of H. B. B. Stapler,, Esq., referee. All concurred, except Hirschberg, J., dissenting.

Appeal by the defendants, Pabst Brewing Company of New York and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of March, 1902, upon the decision of the court Tendered after a trial at the Kings County Special Term, and also from a decree entered in said clerk’s office on the 8th day of February, 1902.

<p>Appeal by the plaintiffs, Frank J. Herzog and another, copartners as Herzog & Erbe, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of-the clerk of the county of Kings on the 7th day of April, 1902, denying the plantiffs’application for an injunction pendente lite.</p>

Appeal by Alford W. Cooley, committee of the person and estate of Penelope D. Osborn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of May, 1902, removing the said Alford W. Cooley as committee of the person and estate of Penelope D. Osborn, and substituting Victor M. Osborn in his place and stead.

Appeal by the defendant, Henry Bahr, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 30th day of April, 3 901, upon the verdict of a jury convicting him of the crime of attempting sodomy, and also from an order entered in said clerk’s office on the 3d day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Libel—what constitutes —the question whether an article is libelous per se is for the court—what charge of taking part in a revolution in a foreign country is not— what is not an accusation of crime.</p> <p>In order to make an article libelous per se it must charge something which impeaches the honesty, integrity, virtue, character or reputation of the complaining party, or which exposes him to public hatred, contempt, ridicule or obloquy, or causes him to be shunned or avoided, or injures him in his business, office or occupation, or which accuses him of crime.</p> <p>Whether the article will hear the construction that its statements are actionable per se is a question for the court to determine.</p> <p>An article published in the New York World, concerning a revolution which had taken place at Eio de Janeiro, Brazil, stated that'the headquarters of the revolution were in a small shop kept hy a certain Crashley, an Englishman “of more or less indifferent repute; ” that one Da Gama, in order to raise money to aid in the .revolt, had issued a circular to the effect that in the event of the suecess of the revolution the revolutionists would convert a railway owned by the government into a stock corporation and would issue stock in payment of all loans contracted by the revolutionists; that, through his agent, the bank of Rio de Janeiro, which existed only in name, but was really “the Crashley crowd,” Da Gama would issue, in return for contributions, receipts which would entitle the holders to shares of stock equal in value to three times the amount contributed; that thousands of English and Portuguese bit at the tempting bait; that gold poured into the treasury; that “ Nearly every Englishman and the majority of the Portuguese from the humblest bank clerks to the capitalists invested in the enterprise, which, through the plausible rumors circulated by the Crashley crowd, seemed sure of success; ” that a conspiracy was entered into to raise money through the “ Crashley mill; ” that the English minister aided in this conspiracy; that lies were started from Crashley’s and that the British minister after every fresh lie from Crashley’s would call a meeting of the diplomatic corps and beg his confreres to urge upon their governments the recognition of Da Gama as a belligerent.</p> <p>At the time of the publication of the article Crashley was a subject of the Queen of England residing in Rio de Janeiro, and it did not appear that the Rew York World was circulated in Rio de Janeiro or in Brazil.</p> <p>Held, that the article was not libelous per se as to Crashley;</p> <p>That the only charge made against him was that he participated in a revolution and that the headquarters of that revolution were at his place of business, and that such statements did not of necessity accuse him of a crime;</p> <p>That the imputation of fraud in connection with the “ Crashley crowd” was too general to apply to Crashley individually.</p> <p>O’Brien and Laughlin, JJ., dissented.</p>

Appeal by the defendants, Frances A. Wotherspoon and others, 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 27th day of February, 1902, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendants, Hermann Hartmann and another, executors, etc., of Hermann H. Schwietering, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of February, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of February, 1902, denying the defendants’ motion for a new trial made upon…

Appeal by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of Hay, 1902, denying the defendants’ motion to quash or supersede a writ of certiorari theretofore issued in the proceeding.

Appeal by the defendant, the Congregational Church of New Lebanon, from an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain defendants, entered in the office of the clerk of the county of New York on the 24th day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, construing the last will and testament of Ruby Tilden Paine.

<p>Appeal by the plaintiff, Hiram Ricker & Sons, 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 May, 1902, denying the plaintiff’s motion for an injunction pendente lite.</p>

<p>Laches in moving to suppress a commission — review of an order denying the motion, by a notice in the notice of appeal from the final judgment.</p> <p>A motion to suppress a commission to take testimony, not. made until after the case, at the instance of the party On whose behalf the commission issued, has been placed upon the short cause calendar and is likely to be tried at an early day, may properly he denied upon the ground of loches.</p> <p>Qucere, whether a statement in the notice of appeal taken from a judgment entered in an action, that the appellant would bring up for review an intermediate order denying a motion to suppress a commission to take testimony, is sufficient to warrant the court in reviewing that order.</p>

<p>Appeal by the defendants, Robert H. Stanley 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 6th day of June, 1902, appointing a receiver of certain shares of stock, alleged to be the snbject matter of the action.</p>

Appeal by the defendant, Lebbeus Harding. Rogers, Jr., as administrator, etc., of Marie C: Rogers, deceased, from an interlocutory judgment of the Supi’eme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 27th day of November, 1901, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling a demurrer to the amended complaint.

<p>Will — when legacies cure cumulative — interest to the beneficiary of a trust not determined by the rate of interest at which the testator’s estate was invested at the time-of his death — when the benefcia/ry of a trust is only entitled to income from the time that the trust fund is-actually set apart—payments to legatees liable for a claim existing in favor of the estate, deferred until other legatees are paid.</p> <p>A_testator executed á codicil to his will providing:</p> <p>“ Mrst. If my friend Harriet A. Hume shall be living at my decease, I give and bequeath to my nephew Henry Southgate the sum of Twenty thousand dollars in trust, to invest and reinvest the same, collect the income thereof, and to pay the net annual income in equal quarterly payments, to her, the said Har. riet A. Hume, during her life; * * * and I further direct that said sum of Twenty thousand dollars be taken to be held by the said Henry Southgate, as aforesaid, out of my estate before and in preference to any division or distribution thereof in my said will directed.</p> <p>' ‘ Second. And upon the death of the said Harriet A. Hume after my decease, said trust in respect to said' sum of Twenty thousand dollars shall cease and determine; and I do hereby direct and declare that said sum of Twenty thousand dollars shall thereupon be and become a part of. the rest and residue of my estate, and be disposed of as in my will and this codicil directed in respect to such residue."</p> <p>Two months thereafter he executed a second codicil which made no reference to the first codicil. The 1st clause and part of the 3d clause of the second codicil were in precisely the same language as the 1st and 3d clauses of the previous codicil, except that in place of the sum of $30,000, written in the first codicil, there was substituted the sum of $50,000. The 3d clause of the second codicil, in addition to providing, as in the first codicil, that upon the death of Harriet A. Hume the trust fund should fall into the residuary estate, contained the following provision: “ Provided, however, that should there be a child of the said Harriet A. Hume born after my decease of which I am or may be the father or reputative father, and which by reason of my relations with her -existing at the time of my decease would by legal implications be a posthumous .child of mine, although illegitimate, it is my will and I hereby direct that in lieu of my said Trustee, Henry Southgate, turning over said fund of .Fifty thousand dollars as above provided upon the death of the said Harriet A. Hume, that then and in that case he do further retain, have and hold said sum of Fifty thousand dollars during the minority of such posthumous child of mine and apply the net annual income thereof to and for the support, maintenance and education of such child, and upon such child arriving at the age of twenty-one years then to pay over to him or her the whole of said sum o Fifty thousand dollars and all accumulations, and should such child die before reaching twenty-one years then the forepart of the second clause shall then be operative."</p> <p>Meld, that the legacies given to Henry Southgate, as trustee for Harriet A. Hume by the first and second codicils were cumulative, and that he was . entitled to receive both of them.</p> <p>The bulk of the testator’s estate consisted of a claim of money loaned to A. Hutchinson & Co., under a contract by which the testator was to receive eight per cent interest upon such claim.</p> <p>After all the assets of the estate had been disposed of with the exception of this claim, an order was made directing the administrators with the will annexed to assign the claim to a trust company in trust to pay over to Henry South-.gate, as trustee of Harriet A. Hume, whatever should be received or collected thereon until he should have received the full amount of the trust fund directed to be paid to him for her benefit and then to assign the balance to the persons entitled thereto under the will.</p> <p>Meld, that the fact that the portion of the estate out of which the trust fund created for the benefit of Harriet A. Hume was to be constituted was earning eight per cent interest, did not entitle her to interest at that rate upon the trust fund, but that she should be allowed interest only at such rate as might be reasonably earned, thereon, which, according to the evidence, was four per cent.</p> <p>McLaughlin, J., dissented.</p> <p>The will gave the testator’s residuary estate to his executor in trust “to divide into three equal parts, shares or portions,” and to hold one of such portions in trust for Hiram Hutchinson during his life, one for Sarah Elizabeth Southgate during her life, and to pay the remaining portion to Alcander Hutchinson absolutely.</p> <p>The will further provided: “ Should the said Hiram Hutchinson die before the division hereinbefore provided to be made, the part, share or portion that would be set apart for his benefit, as hereinbefore provided, shall be equally divided, and one equal moiety thereof set apart as and for the share of the-said Sarah Elizabeth Southgate and the other equal moiety disposed of as. hereinafter provided as (and) for the share of said Alcander Hutchinson,” and also “upon the death of the said Hiram Hutchinson at any time after a division in which he shall be and become entitled to an interest and benefit therefrom, the part, share or portion so set apart for his benefit shall be equally divided, disposed of and in all respects conveyed, paid and delivered in precisely the same manner as Hereinbefore provided with respect to such share in the event of his dying before such division.”</p> <p>Beld, that the testator regarded the division of his estate into the three separate portions as a physical act to be performed by his executor at some time after his death, and that he intended. that Hiram Hutchinson should receive the income of the trust fund created for his benefit only after such actual division was made, and that as ho had died prior to that time his administrator was not entitled to receive any of the income.</p> <p>It appeared that the loan which constituted the chief asset of the testator’s estate-was originally made to the firm of A. Hutchinson & Co., of Paris, of which Alcander Hutchinson, the testator’s brother, was the head.</p> <p>Alcander Hutchinson died during the lifetime of the testator and his children continued the business. Subsequently such children and the testator entered into a contract by which the testator agreed to allow the loan to stand for a further term of years and the children assumed the indebtedness.</p> <p>The agreement provided that if a corporation was formed to take over the business of the firm the testator would transfer the loan to the corporation. Subsequent to the making of the agreement a new firm was organized and thereafter the children and members of the firm sold out to strangers who formed a corporation which took over the assets and. business of the old firm. Both the firm formed subsequent to the agreement and the corporation made pay- . ments from time to time on account of the loan, -but. it. did not appear that they, ever formally assumed the debt so as to become primary debtors.</p> <p>Held, that as the children of Alcander Hutchinson, still remained liable for the loan they should be excluded from any share in any portion of the loan repaid to the estate until the trustee for Harriet A. Hume should have received the full amount of the legacies bequeathed to him for her, and until the trustee for Sarah E. Southgate should have received one-half of the remainder due upon such contract.</p>

Motion by the defendant Joel B. Erhardt for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff and the defendant Max Mayer, rendered by direction, of the court after a trial at. the New York Trial Term.

Appeal by the defendants, The Hew York and Harlem Railroad Company 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 Hew York on the 7th day of May, 1901, upon the decision of the court rendered after a trial at the Hew York Special Term. The facts of this case will be found in the concurring opinion of Ingbaham, J.

<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 5th day of February, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 14th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action is to recover for personal injuries sustained, as alleged, through defendant’s negligence, by the plaintiff who, after alighting about noontime of May 9, 1901, from an uptown Broadway car at the north crossing of Twenty-fifth street, passed behind it in order to proceed to the west side of Broadway and was struck as she stepped upon the south-bound track and run over by a downtown car.</p> <p>The plaintiff had been attending school at Yesey street and with four companions rode up to Twenty-fifth street where she says she got off at the crossing, turned around, and, following one of her friends, Marguerita Dingier, walked westward behind the car so near that she could touch it as she passed. She testified : “ I.looked up. I didn’t see any car in sight and then I went right on. I stopped to see if there was any car coming and then saw none and went right on and then tried to cross. I didn’t get quite to the nearest rail. This car coming the other way was the one that struck me. I got off this car that was standing still * * *. I was struck before I got to the nearest rail of that car coming south. The reason of that was that the car hangs over the rail some distanc.e; that is, the car goes further over the rail than the wheels do * * *. I just got as far as the rail but didn’t cross it * * *. I remember going right around the car and when I got around the car I remember being under another car.” She also testified : “ There was no bell rung. * * * I don’t know whether the rain kept me from seeing the car. It was broad daylight; there were no wagons. * * * I had an umbrella; 1 don’t think I had put it up yet. I couldn’t put it up I had so many parcels — had too many parcels. I made no effort to put it up. It was raining quite hard but I had to go such a short distance I didn’t think it was any use putting it up. I was not hurrying * * * Marguerite got over all right,.Marguerite Dingier, I couldn’t tell you how far. she was ahead of me. Somebody else got out between her and I, I was the very last one off of the car so she may have been quite a way in front of me as far as I know.”</p> <p>Marguerite Dingier testified : “We got off from the back of the car. The car had stopped, we all got off there. May Pelletreau then followed me * * * I saw a car coming down ; it was a good distance up; I went across Broadway there; * - * I was near the west sidewalk when I heard May scream ; I had crossed over the other track. First I seen May laying in the street; she was run over. No gong sounded, I am positive as to that; no bell at all from the car that was coming. * * * The car when I first saw her then had stopped. * * * When I went across I went slow • * * * it was raining very hard.” Other witnesses testified for the plaintiff that the car was coming faster than usual, and that no effort was made to stop it until after the girl was struck; that the car pushed her along the street some feet, stopping just north of the south crossing of Twenty-fifth street and was moved backward to get. her from between the wheels; that no gong was sounded or warning of any kind given ; that the first girl had preceded the, plaintiff in crossing by about six feet and the. motorman at the time was looking towards the west.</p> <p>In behalf of the defendant the' only testimony given was that the distance between the nearest rails of the two tracks is four, feet and four inches, and that when cars pass at that point the overhanging sides are only one foot three inches apart'; that the cars ran by cable at a maximum speed of seven miles an hour, and that this car was provided, not with a fender in front, but one underneath the car.</p> <p>Upon the evidence the jury returned a verdict in favor of the plaintiff, and from the judgment so entered the defendant appeals.</p>

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 7th day of March, 1902, confirming the report of commissioners of estimate and assessment, except so much thereof as confirms said report with respect to parcels 1, 2, 3, 10 and 11.

Appeal by the defendant, Bart Dunn, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on 'the 25th day of February, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of February, 1902, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The .Union Surety .and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 12th day of March, 1902, upon the decision of the court rendered after a trial at the Mew York Special Term in an. action to foreclose a mechanic’s lien.

<p>Appeal by the relator, Tarleton H. Bean, 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 April, 1901, upon the dismissal upon the merits of an alternative writ of mandamus, after a trial at the New York Trial Term.</p>

Appeal by Margaret E. Wolf and others, 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 April, 1902, denying their application to open, vacate and set aside a decree settling the accounts of the executors of Joseph Seidenberg, deceased.

<p>Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of January, 1902, upon the verdict of a jury for $17,500, and also from an order, bearing date the 13th day of January, 1902, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Contempt—violation by a lessee of an order appointing a receiver of rents in a mortgage foreclosure action, to which he is not a party when the order is made, although made a party thereto before it is violated—effect of a prior order denying such an application. </p> <p>Where in an action to foreclose a mortgage an order appointing a receiver of the rents and profits of the mortgaged premises is made without notice to a person (not at the time, although afterwards made, a party to the action) who claims to have leased the premises and to have paid a portion of the rent in advance, and after being served with a copy of the order appointing the receiver and being made a party to the action, such person, acting under the advice of his attorney, violates the injunction order, he and-his attorney may properly be adjudged guilty of contempt.</p> <p>If the alleged lessee wished to raise the question whether the receivership applied to his interest in the mortgaged premises, it was his duty to make an application to the court.</p> <p>An application to punish the lessee and his attorney for contempt is not barred by a former order denying a similar motion where it appears that after the entry of such former order the Appellate Division, when" reversing an order denying the receiver’s motion for an injunction against the alleged lessee, provided in the order of reversal that the receiver might resort to such remedy as he might be advised, without prejudice to the determination had upon the former application to punish the lessee for contempt of court.</p> <p>Van Brunt, P. J., dissented.</p> <p>Appeal by the defendants, Ignoz Luft and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 28th day of May, 1902, adjudging them guilty of contempt of court.</p>

<p>Appeal by the plaintiff, Maurice W. Deshong, 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 13th day of December, 1901, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.</p>

Appeal by the plaintiff, The City of New York, 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 October, 1901, setting aside the verdict of a jury rendered by direction of the court and granting a new trial of the action.

•' Appeal by tbe defendants, Seth Low, as mayor of the city of New York, and others, composing the Board of Oity Record of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of April, 1902, granting a peremptory writ of mandamus.

Appeal by the defendant, William McFadden, as collector of assessments and clerk of arrears of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of May, 1902, granting a peremptory writ of mandamus.

Appeal by the plaintiffs, Robert A. Lancaster and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 5th day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office, on the 5th day of March, 1902, denying the plaintiffs’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary W. Livingston, 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, confirming the report of a referee and modifying a final judgment of the Superior Court of the City of New York by reducing the alimony to be paid by the defendant to the plaintiff to the sum of $3,000 per year.

Appeal by the plaintiffs, Manhattan Fire Insurance Company of the City of New York and another, 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 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.

Appeal by the plaintiff, Edward J. .Newell, from ah 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 May, 1900, adjudging him guilty of a contempt of court.

<p>Libel — what is not apharge that a butcher sold tainted meat — a charge that ‘ ‘ in each store tainted poultry was found” is not libelous.</p> <p>In an action of libel, based upon an article contained in the defendant’s newspaper, which was published in the city of New York, it appeared that the article stated that a butcher, not named,- had been selling horse flesh as beefsteak for 'six weeks; that the health board inspectors had made a tour of the west side butcher shops, and that as a result “ six marketmen were before Magistrate Deuel in the Jefferson Market Police Court yesterday, charged with selling tainted meat.”</p> <p>It further stated that one John Eann, not the plaintiff, was arrested, charged with having 600 pounds of horse flesh in his store, and that five persons named, of whom the plaintiff was one, were held for trial for a violation of the ordinance which forbids butchers to display meat in the street. The article concluded with the statement “in each store tainted poultry was found.”</p> <p>Held, that the article was not libelous per se;</p> <p>That no one reading the article would connect the six marketmen not named, who were charged with selling tainted meat, with the five butchers named, who were .charged with the violation of the ordinance forbidding meat to be displayed in the street;</p> <p>That the statement that “ in each store tainted poultry was found ” was not libel- . pus, in the absence of. an allegation that .such, poultry was sold or offered or exposed for sale.</p> <p>Appeal by the plaintiff, George Hartmann, 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 18th day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial-at the New York Trial Term.</p>

<p>Trust, created by a savings bank deposit as “ trustee, John.Sutton” — testimony of an . interested party as to a conversation between a decedent and a third party and as to the acts of the deceased — Statute of Limitations, where the.trust, is not repudiated — mingling of other money with the trust fund.</p> <p>In an action brought by one John P. Hutton against the heirs at law of his aunt, Rose Ann Coyle, to establish an equitable lien upon real estate purchased by the said Rose Ann Coyle for money alleged to have been held by her in trust for the plaintiff and to have been used in the purchase of the property, evidence was given tending to show that in 1868 the plaintiff, who was an- orphan, went to live with his uncle, Philip Hutton, and thereafter with his aunt, Rose Ann Coyle; that on September 20, 1869, Rose Ann Coyle opened an account in •the Emigrant Industrial .Savings Bank in the name of “ Rose Ann Coyle for nephew,' John Hutton;” that this account amounted to $205.82 and was closed by Rose Ann Coyle on September 22, 1877. January 9, 1875, she deposited §2,288.87 in the Union Dime Savings Institution in her own name “in trust, for John Hutton.” January 9, 1879, Rose Ann Coyle opened another accounts'» the same bank in her own name .as “trustee, John Hutton,” and transferred from the old account the sum of §1,969.85, and also deposited therein the sum of §6.15 in cash. May 15, 1879, she closed both the accounts by drawing therefrom some §4,976, and on the same day purchased the real estate upon which the plaintiff sought to impress a lien. The only money claimed by the plaintiff to have been held in trust for him was the §1,976" deposited in the account opened January 9, 1879.</p> <p>There was evidence of declarations made by Rose Ann Coyle to-third parties that she had money for the plaintiff; that the money was put in trust by the plaintiff's uncle "for the orphan,” and that she was going to take care of it until he was of age or fit to take care of it and see that justice was done on all sides. She had also declared that the real property in question belonged to the plaintiff.</p> <p>The plaintiff testified under objection that when he was about fifteen years of age he was present at a conversation between his aunt, Rose Ann Coyle, and his uncle, Philip Hutton, and that his uncle said to his aunt, “ I will have that money or I will know the reason why,” to which the aunt replied, “ Ho; ” that 'she had it “in trust for John, the orphan, * * * and you can’t get it.”</p> <p>The plaintiff was also permitted to testify under objection that he went to the savings bank at the time the money in question was withdrawn; that from the savings bank he and the deceased went to the house of the grantor of the property, and that at this time his aunt paid the purchase price of the property and received the deed thereof.</p> <p>Meld, that the court was justified in finding that Rose Ann Coyle in making the deposit of §1,976 in the account opened January 9, 1879, “ intended that the same should ultimately become the property of, and be used for the benefit of, the plaintiff and thereby created an irrevocable trust in his favor; that said money so deposited as aforesaid was used in the purchase of the houses or of the said premises so bought by said Rose Ann Coyle, which premises are now-owned by the defendants, and that the plaintiff is entitled to impress'a trust upon said property for the amount; ”</p> <p>That an allegation in the complaint that Rose Ann Coyle at various times received various sums of money belonging to the plaintiff which she held in trust for him, was not inconsistent with the finding that the money originally belonged to Rose Ann Coyle, and that she, by her voluntary act, had created an irrevocable trust therein for the plaintiff’s benefit;</p> <p>That the plaintiff’s testimony as to the conversation which took place between his aunt and his uncle in relation to the money, and to the withdrawal of the money from the bank and the subsequent payment thereof to the grantor of the premises in question, was not incompetent under section 829 of the Coda of Civil Procedure;</p> <p>That the defense of the Statute of Limitations was not available to the defendants, in the absence of evidence that the plaintiff’s aunt had repudiated the trust and that the plaintiff had knowledge thereof or that the title to the prop, erty was taken in the name of the aunt, as under those circumstances the plaintiff’s right of action did not accrue until his aunt's death, and that he had ten years from that date within which to bring the action;</p> <p>That the fact that the plaintiff’s aunt used her own and the trust moneys in the purchase of the property, the title to which she took in her own name, would not justify a presumption that she intended to repudiate her obligation to consider the purchase of the property as an investment of the trust moneys.</p>

Appeal by the defendants, John N. Partridge, as commissioner of police Of the city of New York, 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 22d day of April, 1902, granting a peremptory writ of mandamus requiring the police commissioner of the city of New York to certify upon the payroll of the department, the relator as a detective sergeant, and the civil service…

Appeal by the defendants, Annie II. Owen 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 30th day of March, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, construing the last will and testament of Warren Newcomb, deceased.

Appeal by the relator, The Society for the Relief of Half Orphan . and Destitute Children in the City of New York, from a final 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 9th day of May, 1902, denying its application for an absolute writ of . prohibition.

Appeal by the defendant, The Morning Journal Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to the complaint.

Appeal by the defendant, The City of New York, fro.m 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 9th' day of June, 1902, in so far as it denies the defendant’s motion to advance the above-entitled action as a preferred cause on the Trial Term calendar over all issues not disposed of, and only grants the motion to advance over June, 1902, issues.

<p>Appeal by the defendant, John H. Wray, 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 9th day of November,. 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office- on the 24th day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Assignee for creditors of a corporation—Tie cannot compel a person who purchased stock from the corporation for less than its par value to pay the balance thereof to him. </p> <p>An assignee for the benefit of creditors of a corporation which issued, as full paid, a quantity of its corporate stock and received therefor less than the par value thereof, in violation of section 42 of the Siock Corporation Law (Laws of 1892, chap. 688), cannot maintain an action against, the person who purchased such stock to recover the difference between the par value of the stock and the amount which he paid the corporation therefor.</p>

Appeal by the plaintiff, William A. Taylor, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the comity of New York on the 19th day of December, 1901, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the plaintiff, Mattie Ligouri, 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 May, 1902, denying her motion to strike the cause from the calendar.</p>

Appeal -by the defendant, The General Memorial Hospital, formerly the New York Cancer Hospital, from a judgment of the Supreme Court in favor of the plaintiff and in favor of certain of the defendants, entered in. the office of the clerk of the county of New York on the 5tli day of December, 1901, upon the decision of tile court rendered after a trial at the New York Special Term, in so far as it orders, adjudges and decrees that the defendant, the New York Skin and Cancer…

Appeal by the proponent, William F. Widmayer, and by others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 22d day of April, 1901, denying probate to an instrument purporting to be the last will and testament of Johanna B. Widmayer, deceased.

<p>Appeal by the plaintiff, Henry G-. K. Heath, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 17th day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.</p>

Appeal by the plaintiff, the Manhattan Railway 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 2d day of May, 1902, confirming the report of commissioners of appraisal.

Appeal by John B. Haskin, Jr., the owner of certain property desired to be acquired by the respondent, from an order of the Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 30th day of October, 1901, denying his motion to vacate the proceeding for the acquiring of certain real estate for the opening of Fordham road in the city of Yew York, and granting the motion of the mayor, aldermen and commonalty of…

Appeal by George W. Slingerland 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 22d day of May, 1902, denying his motion to vacate an order for his examination as a party for the purpose of enabling the petitioner to frame her complaint.

Appeal by the defendants, Isidore Goldman 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 24th day of May, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of June, 1901, denying the defendants’ motion for a new trial made upon, the minutes.

Appeal by the defendant, The Tribune Association, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of March, 1902, upon the decision of the court’ rendered after a trial at the New York Special Term overruling a demurrer to the' complaint.

Appeal by the plaintiff, Ellen Duff, 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 31st day of March, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Anna S. Griffen, as administratrix, etc., of Walter H. Griffen, 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 30th day of January, 1902, upon an order setting aside a verdict in favor of the plaintiff for §7,500 and special findings in connection therewith, and granting judgment dismissing the complaint.

Appeal by the plaintiff, Mendel Singer, 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, directing him to serve a bill of particulars.

Appeal by the plaintiff, Rudolph H. ScliWarzer, as administrator, etc'., of Joseph H. Waas, deceased, from a judgment of the Supreme Court in favor of the defendant, the Karsch Brewing Company, entered in the office of the clerk of the county of New York on the 4th day of February, 1902, upon an 'order of the Supreme Court, made at the New York Special Term, confirming the report of a referee and overruling the exceptions to said referee’s report, and also from an order…

Motion by the plaintiff, Hannah Walters, as administratrix, etc., of William Walters, deceased, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, ujion a nonsuit granted by the court after a trial at the New York Trial Term.

Appeal by the defendant, Patrick H. Roche, from a judgment of. the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 15th day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the New York Elevator Supply and Repair Company, from a judgment of the Supreme Court in favor of the defendants, S. Parker Bremer and others, as trustees under the will of John L. Bremer, deceased, entered in the office of the clerk of the county óf New York on the 19th 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, and also from an order entered in said clerk’s office…

<p> Motion for the examination of a pa/rty before trial—when an affidavit of the attorney for the moving party, although it states that such party is out of the State, is insufficient as a bads therefor. </p> <p>A statement, contained in an affidavit made by the attorney for one of the parties to an action, and used upon a motion for the examination before trial of the adverse party, made at the New York Special Term, that the party was not . at the time within the city and county of New York where the attorney resided, but was actually outside of the State, is not a sufficient excuse for the failure to produce the affidavit of the party himself.</p> <p>The affidavit is not saved by a statement therein that all of the allegations thereof are within the personal knowledge of the attorney, where the matters set forth are such that the attorney could not have had personal knowledge thereof.</p>

<p>New York fire department — dismissal of one of the force for being a member of an association intended, to affect legislation — his constitutional rights as an American citizen are not impaired by a statute forbidding such membership.</p> <p>Evidence that prior to the adoption of the Greater New York charter (Laws of 1897, chap. 378), section 739 of which forbade any member of the uniformed force of the fire department to be or become a member of any club or association intended to affect legislation for or on behalf of the fire department, a mutual benefit association of firemen in the city of New York had connected with it a legislative committee for the purpose of influencing legislation for the benefit of the members of such fire department, and that, upon the adoption of the charter, the legislative committee was abolished and the following plan adopted, to wit, after meeting and disposing of its benevolent business the association would adjourn, and then, in the same hall, organize themselves, as the members expressed it, into a body of “American citizens” and then proceed to discuss such measures and adopt such plans as the assembled body deemed efficient in procuring legislation in the interests of the firemen of the department, establishes an unlawful attempt to violate the rules of the department.</p> <p>A person, upon becoming a member of the uniformed force of the New York fire department, must yield obedience to the rules and regulations of such department, and may properly be dismissed if he violates such-rules and regulations by retaining his membership in an association designed to effect legislation in behalf of the members of the fire department, notwithstanding that, at the time of such violation, he claimed to be acting as an American citizen and not as a member of the fire department.</p> <p>The rules and regulations of the fire department in this respect do not constitute an abridgment of the constitutional rights of a member of the fire department as he may, at any time, emancipate himself therefrom by resigning his position.</p>

Appeal by the defendants, Abraham Cohen 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 17tli day of May, 1902, vacating and setting aside an order requiring the plaintiff to file security for costs, and allowing the. prosecution of the action informa pauperis.

<p>Bill of sale, filed as a chattel mortgage — at maturity, when the possession of the property is not transferred, it must he refiled or actual possession taken — what change of possession is only constructive.</p> <p>Where a bill of sale of the machinery and plant of a manufacturing company, given as collateral security for a loan to the corporation, is filed and the property is allowed to remain in the possession of the manufacturing company, the mortgagee, in order to protect his rights in the property, must, upon the maturity of the loan, either refile his mortgage or take actual possession of the property.</p> <p>Evidence that, upon the refusal of the manufacturing company, the mortgagor, to pay the loan at maturity, the mortgagee laid his hands upon each article mentioned in the bill of sale, saying that it was his property and that he demanded and took possession of the same, and that he then left the property, which could have been removed by him, in the custody of the manufacturing company and allowed it to be used in the company’s business, establishes that the mortgagee took constructive and not actual possession of the property and renders the mortgage void as against the mortgagor’s creditors.</p>

<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 New York on the 11th day of July, 1901, upon the report of a referee.</p> <p>The action is brought to recover the sum of $22,939, claimed to be due in pursuance of a contract for filling and grading Ninth avenue from Two Hundred and First street to Kingsbridge road made between the city and plaintiff’s assignor, C. C. Dean, on August 29, 1894, which contract it is averred was terminated .by the failure of the city to pay the entire amount called for in the ninth certificate dated November 18, 1896, and its failure to give further certificates for work duly performed under the contract.</p> <p>The contract after stating the prices per cubic yard which should be paid for excavations, filling, etc., provides as to payments : “ A City Surveyor will be employed by the parties of the first part (City of New York) to see that the work is completed in conformity to the profile and to ascertain and certify the quantity of work done. * * * The return of the City Surveyor having charge of the work shall be the account by which the amount of materials furnished and work done shall be computed; and * * * he (contractor) shall not be entitled to demand or receive payment * * * until the same shall be fully completed * * * and such completion shall be duly certified by the Surveyor, Inspector and Superintendent of Street Improvements * * * and until each and every of the stipulations hereinbefore mentioned are complied with and the work completed to the satisfaction of the Commissioner of Public Works and accepted by him, whereupon the parties of the first part (City) * * * will pay * * * in cash on the expiration of thirty days from the time of the completion of the work and the acceptance of the same * * * the whole of the moneys accruing. * * * But in case the amount payable under this contract shall be five thousand dollars or over, payments will be made to the said party of the second part * * * by monthly installments of seventy per cent on the amount of work performed and also on the quantities of materials furnished and delivered, should the Commissioner of Public Works deem it advisable so to do, in which case, however, the quantity returned shall be such that the amount paid will be fairly due * * * provided the amount * * * shall not be less than fifteen hundred dollars.” Thereafter the contract provides that the commissioner may reject any return should it not be in accordance with the facts and that “It is further expressly understood and agreed * * * that the action of the Surveyor by which the said contractor is to be bound * * * shall be that evidenced by his final certificate ; all prior certificates upon which seventy per cent payments may be made being merely estimates and subject to the corrections of such final certificate ” and that no department of the city shall be “ precluded or estopped by any return or certificate * * * from at any time showing the true and correct amount and character of the work which shall have been done * * * nor from * * * withholding payment of the several sums herein specified until the said party of the second part when thereunto required * * * shall make and furnish sufficient and independent proof of the quantity and quality of the work * * * done' * * * under .this agreement.”</p> <p>• The -contract further provides that the contractor should- not assign “any of the moneys payable under this contract” unless by .and with the consent of the commissioner in writing. ’ It appears from the testimony in the case that the nature of the work called for by the contract, as well as the oral proof, that it was necessary, in order to get-to hard bottom below the surface of the land, to go down: to a line of soundings averaging six feet in depth; and that it was necessary also, to establish the grade called for,, to go above the natural surface at leasf. nine feet. - It appears from the testimony .that the land was soft and marshy, meadow land and near-the river in which the tide flowed, covering a portion of the surface and the filling, where the carloads dumped in it: disappeared from sight, and that some of the soundings had been made from a boat. The work proceeded after the contract-was made in 1894. without any'difficulty until the making of the ninth certificate in November,' 1896, by the city surveyor, that 30,000 cubic yards of filling had been furnished, which, at thirty-eight cents, gave the sum of $11,400, and seventy per cent thereof, $7,980, was, therefore, payable. ' This calculation it appears from the testimony was made from the sound* ings as actually made and as set forth in the profile map, and oti this basis a considerable amount was allowed for settlement or shrinkage. This certificate sIioavs that theretofore there had been 8,000 yards of excavation and 126,000 yards of filling, and from the certificate of seventy per cent payment it appears that there; had already been earned before this payment was due $38,400, of which $26,880 was paid under the seventy per cent payments. Instead, however, of paying this certificate of the surveyor an examiner in the comptroller’s office questioned the amount of "shrinkage or settlement and the comptroller returned the certificate to the commissioner who wrote that the estimate was based on borings actually made by the department and that he was satisfied it was a just claim, and he sent it back accordingly for payment.</p> <p>The comptroller, however,' was not satisfied, and interviews were held with the contractor', and as a result the comptroller submitted the matter to an engineer who had formerly been employed in the department and paid him to investigate and report the matter. This engineer, Crouzbaur, reported March 23, 1897, that there was no such settlement as had been allowed by the surveyor and the department of public works, and deducted 11,144 cubic yards. Upon this report the comptroller deducted from the original certificate 11,500 yards and paid over as a seventy per cent payment, instead of $7,980, the sum of $4,921 on March 29, 1897. Meanwhile, and for six weeks after the giving of the ninth certificate on November 18, 1896, the contractor continued his work of filling so that nothing remained but curbing and flagging and demanded a further certificate which was refused on the ground that the ninth certificate had not been determined. Various demands were made by the contractor, both for payment of the ninth certificate as given in the first instance and for a further certificate, which demands were not complied with, although the contractor gave notice that he would consider the contract broken by the city. Instead of complying with these letters the city gave notice that, unless the contractor proceeded, the remainder of the work would be given to another contractor. Subsequently the work was performed by another contractor and this suit was brought to recover the amount unpaid under the ninth certificate, and the whole cost of the work performed for which the contractor had not been paid at contract prices.</p>

Appeal by the plaintiff, the Diamond Soda Water Manufacturing Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order bearing date the 28th day of January, 1902, and entered in said clerk’s office, denying the plaintiff’s motion for a new…

Appeal by the defendants, The New York and Harlem Railroad'. Company 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 New York on the 7th day of May, 1901, upon the decision of the court rendered after a trial at the New York Special Term. The premises of the plaintiffs in this action are located on Park avenue, the fee of which street has been acquired by the city of. New York.

<p>Appeal by the defendant, the Twelfth Ward Bank of the city-of New York, from the following portions of a judgment of the-. Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of May, 1901, upon the report of a referee,, viz., from that portion thereof which grants to the defendants. Thomas Gr. Patten and another, as executors, etc., of Thomas Patten, deceased, judgment against the defendant, the Twelfth Ward Bank of the city of New York, and from that portion of said judgment which awards the defendant Helen A. Dawson, as administratrix, etc., of John F. Dawson, deceased, judgment against The-Mayor, Aldermen and Commonalty of the city of New York, for-the sum of $620.50 instead of $5,840 ; also an appeal by Helen A. Dawson, as administratrix, etc., of John F. Dawson, deceased, from that portion of said judgment which awards her $620.50 instead of $5,840.</p>

Appeal by the defendant, J. Hampden Dougherty, as commissioner of water supply, gas and electricity of the city of New York, from an order of the Supreme Court, made at the New York . Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1902, continuing an injunction pendente lite.

Appeal by the plaintiff, M. Edward Kelley, as trustee in bankruptcy of Louis Danis and Isaac Shapiro, composing the firm of L. Danis & Go., from an order of the Supreme Court, made at the-Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of April, 1902, denying-his motion to vacate an order compelling him to file security for costs..

Appeal by the Comptroller of the City of ¡New York from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 5th day of ¡November, 1900, vacating and setting aside the report of the appraiser under, the Inheritance Tax Law and sending the same back to him for corree-, tian and amendment, so that said report shall state the value of the appraised property of the testator at the date of his death.

Appeal by the contestant, George H. Jeffries, from a decree of the Surrogate’s Court of the county of ¡New York, entered in said ¡Surrogate’s Court on the 21st day of January, 1902, admitting to probate a paper purporting to be the last will and testament of .Frederick Akers, deceased.

<p>Incompetent — Ms rights as to care and maintenance by Ms committee — vouchers must be furnished by the committee for items exceeding §20 and aggregating more than §500—: committee not credited .with sums given in charity—power of the Appellate Division to correct the committee’s accounts.</p> <p>Wliere. an order appointing a woman committee of the .estate of her insane, husband, whose only source of income was his share in the profits of an insurance business, authorizes the committee to continue such business and apply the income thereof to the payment of the debts of the incompetent, if any, and to his maintenance and that of his wife and minor children, the incompetent is. entitled to receive'such care and maintenance as is essential to his comfort so far as his estate warrants.</p> <p>Where, upon an intermediate accounting of the committee, it appears that she expended substantially the entire income from the lunatic’s business, amounting to over §3,000 a year, for the maintenance of herself and children and that she had had the lunatic committed as a charity patient in a state insane asylum where he rendered services in caring for other inmates thereof, and the committee paid nothing for his maintenance in any form, and it does not appear whether the lunatic received the same care and comfort at the asylum that he would receive if the committee paid for his support and maintenance, the Appellate Division ordered proof to he taken upon the question whether the committee had discharged her obligation in this respect.</p> <p>Section 2729 of the Code of Civil Procedure, providing that, on an accounting by an executor or administrator in the Surrogate’s Court, items of expenditure may be allowed without vouchers when the item does not exceed §20 and - the whole amount of such items so allowed does not exceed, in the aggregate, §500, applies to an accounting in the Supreme Court by the committee of a lunatic.</p> <p>The committee of a lunatic is not entitled to be credited upon her accounting with sums which she has devoted to charity out of the incompetent’s income. Upon an appeal from an order confirming the report of a referee appointed to take and state the account of the committee of an incompetent, the Appellate Division has no power to correct the account.</p>

Appeal by the defendants, the Bergen County Traction Company 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 9th'day of May, 1902, denying their motion for a bill of particulars of the plaintiff’s claim.

Appeal by the plaintiff,, the Hoffman House, Hew York, from an order of the Supreme Court, made at the Hew York Special Term, and entered in the office of the clerk of the county of New York on the 14th day of April, 1902, granting the motion of the defendant, the Manhattan Storage and Warehouse Company, for an order of interpleader substituting Rose L. Barclay as defendant in the place and stead of said Manhattan Storage and Warehouse Company.

Appeal by the defendant, The Citizens’ National Bank of the City of Yonkers, 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 March, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, Charles F. Talbot, as assignee of Andrew J. Robinson for the benefit of creditors,, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Few York on the 13th day of February, 1902, upon the report of a referee, as adjudges that the plaintiff and the defendants Owen R. Mason, Clarence L. Smith, Pfotenhauer & Fesbit, Richey, Browne & Donald, Robert C. Martin, Augustus Meyers, the Columbian Fireproofing…

<p>Purchaser at a mortgage foreclosure sale—liability of, on his failure to complete his purchase — not''discharged by an attempt to collect a deficiency judgment — he is chargeable with, interest—cohere not charged interest he is not entitled to a credit for rents.</p> <p>"Where a purchaser at a mortgage foreclosure sale fails to complete his purchase and an order is made directing a resale and adjudging the delinquent purchaser liable for any deficiency arising thereon, and on the resale the property is' struck down for less than the, sum bid by the delinquent purchaser and a deficiency judgment is rendered against the mortgagor, the fact that the mortgagee endeavors to collect the deficiency judgment will not prevent him from pursuing the delinquent purchaser, especially when it appears that the mortgagee’s attempt to enforce the deficiency judgment was made at the instance" of the delinquent purchaser.</p> <p>In proceedings instituted to compel the delinquent purchaser to pay the deficiency arising on the resale, he may properly be charged with interest on the amount of such deficiency, as fixed by the confirmation of the report of sale filed by the referee who made the resale.</p> <p>Where the order directing the resale did not charge the delinquent with the interest accruing upon the mortgage debt in the interim between the original sale and the resale, the delinquent purchaser"is not entitled to have applied, in reduction of his liability, rents collected by a receiver of the premises during such interim.</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 27th day of January, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 10th day of February, 1902, denying the defendant’s motion' for -a new trial made upon the minutes'.

<p>Appeal by the plaintiff, Daniel J. Kelley, from a judgment of the .Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 24tli day of February, 1902, upon the decision of the court, rendered after a trial at the Hew York Special Term, directing the dismissal of the complaint upon the merits and awarding judgment in favor of the defendant for the affirmative relief demanded in his counterclaim.</p>

<p>Negligence—a charge that a “ motorman was not obliged to apply his brake before he observed that the child was in danger,” refused.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, a child five and a half years of age, concededly non sui juris, in consequence of his being struck by one of the defendant’s street cars, while crossing a street in the city of New York, the court may properly refuse a request to charge that “ the motorman was not obliged to apply his brake before he observed that the child was in danger of being struck by the car,” as such a request eliminates the question whether the motorman was negligent in failing to discover that the child was in danger sooner than he did.</p> <p>Van Brunt, P. J., dissented.</p>

<p>Usury— a conveyance of land to an agent of a mortgagee, without her knowledge, for his services in obtaining the loan, held not to constitute usury— an agent acting in his own behalf, held not to bind his pi'incipal — a release of security by a first mortgagee■—the benefit as well as the injury resulting therefrom to a junior mortgagee, considered.</p> <p>The fact that the agent of a mortgagee, as compensation for his services in the transaction, required the mortgagor to execute to the agent’s wife a conveyance • of property in which the mortgagor had an equity of several thousand dollars, - does not render the mortgage usurious where it does not appear that the mortgagee had any knowledge of the agreement to give her agent a bonus.</p> <p>Where property is incumbered by several mortgages, the first being held by an individual and some of the junior mortgages by a bank, and the mortgagor, acting in his own behalf, applies to the first mortgagee to release a portion of the mortgaged property from the lien of her mortgage, and to her and-the bank to extend their mortgages, the fact that the mortgagor is attorney for the bank in various other matters does not charge the bank with notice of the release executed by the first mortgagee nor make the acts of the mortgagor in procuring such release the acts of the bank.</p> <p>In considering tlic effect upon junior mortgagees of a release by a senior mortgagee of a portion of the mortgaged premises from the lien of his mortgage, the senior mortgagee, while chargeable with the loss occasioned by the discharge of the property from the lien of his mortgage, is also entitled to be credited with any benefit resulting to the junior mortgagees from the transaction which was made possible only by the execution of the release.</p>

<p>Appeal by the plaintiff, Edgar A. Forsyth, 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 October, 1901, upon the decision of the court rendered after a trial at the Erie Special Term.</p> <p>This action was brought to compel the specific performance of' a written contract for the exchange of certain lands, entered into between the parties on the 20th day of December, 1899, which contract was in two parts and is as follows, viz.:</p> <p>“Agreement and Offer to Exchange.</p> <p>“ For a good and valuable consideration,, to me in hand paid by Josephine Leslie, the receipt of which is hereby acknowledged, I, Edgar A. Forsyth, of Buffalo, 1ST. Y., party of the first part, do hereby make Josephine Leslie, of Buffalo, LT. Y., party of the second part, the following offer through B. H. Downer, real estate agent; that is to say, I will exchange the following property, at a valuation of $11,500, and described as follows, viz.: 3J0 feet of land on the north side of Riley Street, 300 feet east of Humboldt Parkway, subject, however, to liens or incumbrances of sixty-eight-hundred dollars, as follows: Subject to a mortgage of $3,300, given to Homestead Loan Association on 220 feet on eastern portion and second mortgage, $660, on same portion and $2,840 on 150 feet on western portion, first mortgage, making a total of $6,800, said mortgages at Qf0 per annum.</p> <p>“For the following property, at a valuation of. $8,000, and described as follows, viz.: Two double houses on Carmine Place, and known as 15 and 25 Carmine Place, in the city of Buffalo, H. Y., subject, however, to liens or incumbrances of $1,500 on house and lot Ho. 25 and $1,800 on house and lot Ho. 15, both mortgages being bank mortgages at 5% interest.</p> <p>“ And as a further consideration the said party of the first part agrees that the second mortgage on the 220 feet and the first mortgage on the 150 feet shall be given by such party as the party of the .second part shall appoint to take title to said land, and there shall be a release clause releasing any one lot at $20 per foot the first -of any month. Any or all lots from both mortgages. Each of "us to furnish the other tax and title searches of our properties and the usual warranty deed of the same free. Rents, interest, insurance, water rates, and all other matters affecting the above properties, not herein otherwise provided for, to be adjusted between us •as of Dec. 31st, 1899. Each of said parties hereto hereby agrees to ■deliver to the other his above described property free and clear of all liens and incumbrances whatsoever, except as stated above, and -all papers are to be exchanged and title passed on or before Jan. •31st, 1900.</p> <p>“As witness my hand and seal this 14th day of December, 1899.</p> <p>“ EDGAR A. FORSYTH, Sb.</p> <p>“ Witness : B. H. Downer.</p> <p>“For a good and valuable consideration, to me in hand paid by Edgar A. Forsyth above named, the receipt of which is hereby •acknowledged, I, Josephine Leslie, by D. Y. Leslie, Agt., do hereby •accept the offer above, of exchange, made by said Edgar A. Forsyth, as above stated, and do. hereby agree to carry out the terms and •conditions above mentioned.</p> <p>“ As witness my hand and seal this 20th day of December, 1899.</p> <p>“ JOSEPHIHE LESLIE.</p> <p>“ By D. Y- Leslie, Atfy. in Fact.”</p> <p>The complaint set forth the contract in hoee verba, and described •the lands embraced therein by metes and' bounds. It also alleged an offer and willingness to perform on the part of the plaintiff, the defendant’s refusal, and demanded the relief appropriate, to such ■cases. The defendant’s answer admitted the execution of the con"tract, and while denying a proper tender and offer to perform by the plaintiff, as well as certain other allegations of the complaint, alleged in substance as reasons for non-performance:</p> <p>First, that the descriptions in the contract of the premises of both the plaintiff and defendant were too vague, uncertain and indefinite ' and insufficient to locate the same, and that a conveyance by sudli descriptions would be void for uncertainty ;</p> <p>Second, that the plaintiff’s title was not free and clear, but that the same was affected by liens and incumbrances thereon; and,</p> <p>Third, inability on the part of the plaintiff to perform. '</p> <p>The issues thus formed were brought to trial at an Equity Term of the Supreme Court held in the county of Erie on the 19th day of June, 1901, at which time the plaintiff’s complaint was dismissed* and from the judgment entered thereon this appeal .is brought.</p>

Appeal by the defendant, The Supreme Tent of the Knights of the Maccabees of the World, 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 2d day of' November, 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 2d day of November,. 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal from a judgment in default of an answer, after a demurrer has been overruled with leave to answer — action to dissolve a corporation brought by the Attorney-General without a relator.</p> <p>Where an interlocutory judgment, overruling a demurrer to a complaint provides that, in the event of the defendant’s failure to serve an answer within twenty days, the plaintiff may apply for final judgment for the relief demanded in the . complaint, the defendant is not precluded from appealing from a final judgment entered pursuant to the provisions of the interlocutory judgment, upon the defendant’s failure to answer, upon the theory that the final judgment was rendered by default.</p> <p>Where a savings, loan and building association, organized under the Banking Law (Laws of 1892, chap. 689), has been insolvent for more than a year and the Superintendent of Banks notifies the Attorney-General that he deems it unsafe and inexpedient for the corporation to continue to transact business, an action to dissolve the corporation and restrain the officers thereof from exercising any corporate powers, franchises and privileges and from transferring, disposing of or in any manner interfering with its property or assets, may be maintained - by the Attorney-General in the name of the People of the State of New York, without the intervention of a relator, under and pursuant to section 18 of the Banking Law and sections 1785,1786 and 1808 of the Code of Civil Procedure.</p>

'Appeal by the defendant, Florence Angie, fróm 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 17th day of April, 1902, affirming a judgment of conviction and commitment under section 291 of the Penal Code, rendered by a police justice of the city of Rochester.

Appeal by the defendant, Peter J. Andrus, from a judgment of the County Court of Tates county in favor of the plaintiff, entered in the office of the clerk of the county of Tates on the 15th day of January, 1902, upon the verdict of a jury, convicting him of a violation of the Liquor Tax Law, and also from an order, entered in said clerk’s office on the 1th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Charles W. Teachout, as administrator, etc., of Laurinda L. Teachout, deceased, from a decree of the Surrogate’s Court of the county of Oneida, entered in said Surrogate’s Court on the 13th day of March, .1902, finally and judicially settling the accounts of Jane N. Barnett, as executrix of the last will' and testament of Maranda R. Hammond, deceased.</p> <p>On the 8th day of May, 1898, one Maranda R. Hammond departed this life at the town of Paris, Oneida county, leaving a last will and testament in and by which she nominated and appointed her two sisters, Jane N. Barnett and Laurinda L. Teachout, the executrices thereof. On the 19th day of September, 1898, such will was admitted to probate and letters testamentary were thereupon duly issued to the executrices therein named.</p> <p>Thereafter, and on the lath day of January, 1900, a decree was’ made by the Surrogate’s Court of Oneida county settling the accounts of such executrices and directing the distribution of the moneys in their hands, and upon such settlement the executrices accounted for all the real and personal property belonging to their testatrix, except the proceeds of the sale of a house and lot located in Sauquoit, N. Y., and a small amount of rent received therefrom.</p> <p>On the twelfth day of March following Laurinda L. Teachout died intestate, leaving her surviving the appellant, Charles W. Teachout, her husband, and Henderson W. Teachout and Webster A. Teachout, her sons by a former husband, and her only heirs at law, there having been no issue of the second marriage.</p> <p>By the 7th clause of the will of Maranda R. Hammond, the use and possession of the Sauquoit house and lot were given and bequeathed to Laurinda L. Teachout for and during her lifetime; and by the 11th and 12th. clauses it was provided as follows, viz.:</p> <p>“ Eleventh. All the proceeds of the residue of my personal and real estate which I may own at the date of my death, including the proceeds of my said house and lot, after the death of my sister Laurinda L. Teachout, I do hereby give and bequeath and devise unto my two sisters Laurinda L. Teachout and Jane N. Barnett, and my brother Erastus D. Andrews, equally, share and share alike.</p> <p>“ Twelfth. I do hereby constitute and appoint my two sisters Laurinda L. Teachout and Jane N. Barnett executrices of this my last will and testament and authorize and direct them and the survivor of them, to sell all my real estate, but not the house and lot during the life of my sister Laurinda L. Teachout and to give all papers and necessary contracts and deeds for the same, and divide the proceeds of the said sales as directed above, and until sold, my executors are to take possession of all of my real estate, but not of the house and lot in the lifetime of my sister Laurinda L. Teachout, and to rent the same and after paying for all proper repairs and insurance, including said house and lot after the death of my said sister Laurinda L. Teachout, and to divide the net proceeds as above directed.”</p> <p>After the death of Mrs. Teachout, the house and lot in question were sold, and the controversy herein arises over the distribution to be made of the proceeds thereof, it being claimed by Charles W. Teachout that, as administrator of his wife’s estate, he is entitled to one-third thereof ; while upon the other hand the two sons claim that it belongs to them as sole heirs at law of their mother, and still another claim'is made by certain infant heirs at law of Maranda R. Hammond, that as to such share of the proceeds Mrs. Hammond died intestate.</p>

Appeal by the defendants, E. F. Lawler and others, as assessors of the town of Kirkland, Oneida county, FJ.

Appeal by the plaintiff, Mary Mull, from a judgment of the '.Supreme Court in favor of the defendant, entered in the office of the -clerk of the county of Monroe on the 10th day of December, 1901, upon a nonsuit granted by the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 12tli day of December, 1901, granting the defendant’s motion dismissing the complaint.

Appeal- by the plaintiff, The Syracuse and Oneida Lake Electric Railway Company, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 12th day of May, 1902, denying its motion for a temporary injunction.

Appeal by the contestant, Joseph Forster, from a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 7th day of November, 1901, upon the decision of the court admitting to probate an instrument purporting to be the last will and testament of Barbara Granacher, deceased.

<p>Appeal' by the defendant, the Hunter Arms Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 28th day of October, 1901, 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 November, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was commenced on the 3d day of July, 1901, to recover damages for injuries sustained by the plaintiff on the 26th day of November, 1900, alleged to have been caused through the negligence of the defendant.</p>

Appeal by the plaintiff, James Kane, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 5th day of December, 1901, granting the defendant’s motion for a new trial made upon the minutes of the court, and setting aside the verdict of a jury in favor of the plaintiff for $1,800.

<p> Statement made to a commercial agency—when false, a vendor of goods, who has acted in reliance upon it, may rescind the sale. </p> <p>Where the secretary and treasurer of a corporation delivers to a commercial agency, with the intent that it shall be communicated to others, a written . statement purporting to show the true financial condition of the corporation, which statement fails to include among the liabilities of the corporation §379,342.60 of promissory notes made by that corporation for the accommodation of another corporation, a person who, in reliance upon such statement, sells goods to the corporation, is entitled to rescind the salé and to recover the goods or their value from the possession of the corporation or its receiver.</p> <p>The statement having purported to state positively a matter within the knowledge of the officers of the corporation, the vendor’s right to recover the goods or their value is not affected by the fact that the officers of the corporation had been informed that the accommodation notes were not valid obligations of the corporation and omitted mentioning them in the statement upon the mistaken assumption that such information was correct.</p>

Appeal by the plaintiffs-, Oscar P. Eochevot and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 6th day of September, 1901, upon the decision of the court rendered after a trial at the Erie Special Term.

Appeal by the plaintiff, Simon J. Weaver, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the lYth day of July, 1901, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the defendant, the American Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of February, 1902, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 5th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Certiorari issued out of the Supreme Court and attested on the 14th day of February, 1902, directed to Robert B. Adam and others, as grade crossing commissioners of the city of Buffalo, commanding them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings in relation to determining whether the relator’s property ivas injured by the change of grade of Washington street in the city of Buffalo, pursuant to a plan adopted by such grade crossing commissioners.</p>

Order reversed, without costs of this appeal to either party, and without prejudice to a renewal of the application at Special Term. —Appeal by the plaintiff from,an order of the Supreme Court, entered in the office of the clerk of Queens county on the 11th day of April, 1902, opening the default of the defendants and vacating the judgment thereon.

Judgment of conviction reversed and new trial ordered.—Appeal by the defendants from a judgment of conviction for receiving stolen goods, rendered in the County Court of Kings county on the 23d day of April, 1902.

Order reversed, with ten dollars costs and disbursements.—Appeal from an order of the Special Term, entered in the office of the clerk of Queens county on the 6th day of May, 1902, changing the place of trial- of the action from the county of Queens to the county of Onondaga.

Order reversed, without costs.—Appeal from an order vacating and setting aside a final order confirming inquisition, and from an order declaring void a prior order granted herein.

Judgment affirmed, with costs — Appeal by the plaintiff from a judgment of the Supreme Court, entered in the offico of the clerk of the county of Westchester on the 15th day of May, 1900, upon the report of a referee

<p>Order reversed, with ten dollars costs and disbursements.—Appeal by the defendants Arsene from an order of the Supreme Court, entered in the office of the clerk of Kings county on the 25th day of April, 1902, discharging the receiver and directing dispositian of funds.</p>

<p>Order affirmed, with ten dollars costs and disbursements. All concurred, except Goodrich, P. J., who read for dismissal.— Appeal from an order made at the Kings County Special Term granting a peremptory writ of mandamus.</p>

Judgment of the Municipal Court affirmed, with costs.—Appeal from a judgment of the Municipal Courc in favor of the plaintiff and against the defendant.—

<p>Judgment of the Municipal Courfc affirmed, with costs.—Appeal from a judgment of the Municipal Court of the city of New York for the first district of the borough of Queens, rendered on the 24th day of May, 1901.</p>

Judgment arid order affirmed, with costs.—.Appeal by the plaintiff from a judgment in favor of the defendant, entered upon the verdict of a jury rendered by direction of the court, and from an order denying a motion for a new trial.

Judgment of conviction affirmed.—Appeal by the defendant from a judgment of conviction of the crime of assault in the sec- and degree.

<p>Judgment affirmed, with costs, on the opinion of Mr. Justice Wilmot M. Smith. All concurred. The following is the opinion of Mr. Justice Wilmot M. Smith, delivered at the Suffolk Trial Term:</p>

Respondent.—Order modified by sustaining exceptions, so far as the sum of forty dollars and fifty-two cents is concerned, and charging the receiver with that amount, and as so modified affirmed, without- costs.—Appeal from an order denying in part plaintiff’s motion for an order sustaining exceptions, etc.

Order granting temporary injunction modified in accordance with opinion per curiamand as modified affirmed, without costs.— Appeal by the defendant from an order entered in the office of the clerk of Westchester county on the 4th day of June, 1902, granting a temporary injunction.

<p>.Appeal from a judgment entered after a trial at Special Term.</p>

Judgment affirmed, with costs.—Appeal from a judgment entered upon the decision of the court after a trial at Special Term.

<p>Order reversed, with ten dollors costs and disbursements, and motion granted, with ten dollars costs.— Appeal from an order denying defendant’s motion, to change the place of trial.</p>

Judgment modified by modifyingthe injunction as stated in opinion, and by reducing the amount awarded for fee damage to $8,000, and by reducing the judgment as entered for costs, etc., to the sum of $578.55, and, as so modified, affirmed, without costs.—Appeal from a ' judgment entered upon the decision of the . court after a trial at Special Term.

<p>Order modified as directed in opinion and, as modified, affirmed, without costs.— Appeal from an order adjudging the appellant guilty of contempt.</p>

<p>Judgment affirmed, with costs.— Appeal from a judgment entered after a trial at Special Term.</p>

Order modified by directingthafcaeommissionissuetoexamine the witnesses on written interrogatories, with ten dollars costs and disbursements to appellants.— Appeal by the defendants The importers ana Traders’ National Bank of New York, Edward H. Perkins, Jr., and Edward Townsend from an order of the Supreme Court, made at the New York Special Term and entered in the cleric’s office of the county of New York on the 29th day of May, 1902, as resettled by an order of June…

<p>Order reversed, with ten dollars costs and disbursements, and motion denied^with ten dollars costs.— Appeal by Lena Vogel from an order of the Supreme Court, made at Special Term and entered in the clerk’s office of the county of New York on the 24th day of October, 1901, adjudging her guilty of contempt.</p>

Order affirmed, with ten dollars costs and disbursements, on the opinion of the court below.—Present: Van Brunt, P. J., Patterson, Ingraham, Hatch and Laughlin, JJ. The following is the opinion of Scott, J., delivered at Special Term: