Volume 75 — New York Appellate Division Reports

Appeal by the defendant-, tlie Central New York Telephone and Telegraph Company, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 19th day of November, 1901, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 18th. day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Eliza Bridenbecker, substituted in the place and stead of Frank W. Arnold, as Grand Secretary and "Treasurer of the Brotherhood of Locomotive Firemen, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk, of the county of Onondaga on the 12th day of April, 1902, granting the plaintiff’s motion for a new trial -upon the ground of newly-discovered evidence and appointing a referee to hear, try and determine the issues involved.</p>

Appeal by the defendants, the Niagara Fruit Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 31st day of March, 1902, upon the report of a referee, for damages and costs, aiid restraining the defendants from further violation of certain specified sections of the Agricultural Law of the State of New York.

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

<p>Irrelevant and redundant allegations in a complaint — amotion to strike them, out is addressed to the discretion of the court — when denied.</p> <p>In an action brought by a landlord against a tenant to recover damages done to the demised building by fire, it appeared that the fire was caused by the handling of large quantities of gasoline within the demised premises and that the insurance company refused to pay the insurance upon the building, on the ground that the fire underwriters’ rules relative to the storage and cai'Q of gasoline had been violated. The lease, which was in writing and was set out in the complaint in full, contained a covenant by the tenant that he would “conform to-the Fire Underwriters’ rules as to the storage and care of gasoline.” The complaint alleged the provisions of the fire underwriters’ rules in detail and further alleged that the defendant, in violation of the- lease, failed to conform to such rules as to the storage and care of gasoline and that, as a result thereof, the property was destroyed by fire. The complaint further alleged “That at the time of malting the said agreement (the written lease), it was in addition, thereto specifically agreed and understood by and between the parties hereto that the handling of gasoline openly was dangerous, and that the handling of gasoline within the building in any manner was extremely dangerous and liable to cause explosion and fire, and that it was specifically understood and agreed between these parties that no gasoline would be handled within the buildings; that the gasoline to be used by the defendant in its motors was to be stored in a barrel outside the buildings and to be handled entirely outside the buildings,” and that the damage was caused by a violation of these agreements.</p> <p>Meld, that the above-quoted allegations of the complaint should not be stricken out upon the ground that they were irrelevant and redundant.</p> <p>A motion to strike out an allegation in a pleading as irrelevant and redundant is addressed largely to the discretion of the court, and should be granted only when it is evident that, if denied, the moving party will be aggrieved by . allowing the allegation in question to remain, in the pleading.</p>

Appeal by the plaintiff, Lina Kurtz, individually, and as administratrix, etc., of Frederick Wieehmann, deceased, and by Carl Frederick Wieehmann, from a judgment of the Supreme Court in favor of the defendants Kreutzer, entered in the office of the clerk of the county of Monroe on the 26th day of December, 1901, upon the decision of the court rendered after a trial at the Monroe Special Term.

Appeal by the plaintiff, The Gunning System, 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 3d day of October,. 1901, upon the decision of the court, rendered after a trial at the. Erie Special Term.

Appeal by the relator, Matthias J. Calihan, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 4th day of October, 1901, vacating an order directing the issuance -of a peremptory writ of mandamus, with ninety dollars costs. ■

<p>Trial for murder — under a plea of self-defense the People may show the deceased’s reputation for peaceableness where the defendant proves that he was quarrelsome, etc.—proof that a woman told defendant that “he ought to lick” deceased, as affording a motive for the crime — the giving to the jury icithout the consent of the parties of the revolver with which the crime was committed — affidavits of jurors are inadmissible to impeach their verdict.</p> <p>Where, upon the trial of an indictment for murder in the first degree, the defendant interposes the plea of self-defense, and by various kinds of evidence seeks to show that the deceased was of a quarrelsome, morose, irritable and vindictive disposition, and was subject to violent outbursts of temper and in the habit of making threats against the defendant, the fact that the defendant offered no evidence tending to show that the general reputation of the deceased for péaceableness and good disposition was bad, does not render it improper for the court to allow witnesses called on behalf of the People to testify that the general reputation of the deceased by the speech of people for peaceableness and good disposition was good.</p> <p>Where it appears that on the night of the homicide a woman stated to the defendant that “ he ought to lick (deceased) or he was no friend of hers,” and that after this remark was made the defendant left the woman, borrowed a revolver and went to a saloon where the deceased was, commenced a conversation with him and then shot him in an affray which followed, evidence of the statement is competent as showing motive and as bearing upon the whole transaction at the time of' the shooting.</p> <p>The fact that the jury were allowed, without the consent of the defendant’s counsel, and in violation of section 425 of the Code of Criminal Procedure, to have the revolver with which the crime was committed, in the jury room, while deliberating upon their verdict, does not authorize the granting of a new trial under section 465 of the Code of Criminal Procedure, where it appears that the sheriff of the county, at the request of the jury, took the revolver from the court room, in the absence of the presiding justice and of the counsel for both sides and of the defendant himself, and delivered it to the jury, upon the mistaken assumption that the counsel had agreed that the jury might have the revolver if they so desired, and also that the examination of the revolver by the jury did not affect their verdict or prejudice the defendant in any way.</p> <p>Semble, that, in criminal cases, as well as in civil cases, the affidavits of jurors are inadmissible for the purpose of impeaching their verdict.</p>

Appeal by the Salt Springs National Bank of Syracuse from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Onondaga on the 13th day of February, 1902, vacating an attachment and setting-aside a judgment and an execution issued thereon. ■

<p>Landloi'd and tenant — liability of the tenant, when not released by inwlunta/ry proceedings in bankruptcy against Mm ■—■ a return of Ms property to him and notice to surrender the premises.</p> <p>A tenant is not relieved from liability under his lease by the commencement of involuntary bankruptcy proceedings against him and the appointment therein of a receiver who takes possession of the demised premises, pays the rent accruing during his occupancy, and finally returns the property to the tenant. • pursuant to an order dismissing the bankruptcy proceedings, nor by the fact that after the receiver had been appointed a person who was jointly liable with the tenant under the lease, but who did not occupy the property, authorized the lessors to take proceedings to recover the unpaid rent or to obtain possession of the property, and agreed that if the lessors should recover possession • the lease should not be merged, and that any rent received by the lessors . should be applied upon the lease without prej udice to their rightto recover the balance from him, and that, in pursuance of this agreement, the lessors served a written notice upon the tenant and the receiver demanding payment of the rent or the surrender of the demised premises, which notice was withdrawn a few days after it was given and before any proceedings for the removal of the tenant or the receiver had been instituted thereunder.</p>

Appeal by the defendant, the International Heater Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 17tli day of December, 1901, upon the verdict of a jury for $3,500, 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.

Appeal by the plaintiff, Meyer Lichtenstein, 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 10th day of June, 1901, upon the dismissal of the complaint upon the merits by direction of the court after a trial at the Erie Trial Term.

Appeal by the plaintiff, Sarah M. Tittle, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Herkimer on the 21st day of November, 1901, upon the decision of the court, rendered after a trial at the Herkimer Special Term, dismissing the complaint upon the merits.

Appeal by the defendants, John L. Dudley 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 Monroe on the 24th day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of January, 1901, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by H. K. McKay and others, next of kin of Inez McKay, deceased, from portions of a decree of the Surrogate’s Court of Steuben county, entered in said Surrogate’s Court on the 4th day of March, 1901, judicially settling the accounts of Charlotte McKay, as administratrix, etc., of Inez McKay, deceased.

Appeal by the plaintiff, Frank A. Beyer, from an order of the County Court of Cattaraugus county, made at a Trial Term thereof, and entered in the office of the clerk of the county of Cattaraugus on the 25th day of .June, 1901, setting aside the verdict of a jury in favor of the plaintiff, and granting a new trial of the action.

<p>De facto town clerk — when the removal of a town clerk from the town does not affect the validity of his act in signing and posting a notice of election.</p> <p>"While the removal of the clerk of one town to another town operates, under section 20 of the Public Officers Law (Laws of- 1892, chap. 681), to render the office vacant, yet where such town clerk, after his removal and until the expiration of his term of office, without dispute and with the acquiescence of all the officers of the town, keeps the town clerk’s office open in the same place in which he had kept it prior to his removal, performs all the duties of town clerk and draws his salary as such, he must, during the interim between his removal from the town and the expiration of his term, be regarded as the de facto clerk of such town, and a notice of election to determine the question of the incorporation of a village in the town, signed and posted by him during such interim, pursuant to section 10 of the Village Law (Laws of 1897, chap. 414), is valid.</p> <p>Fursman, J., dissented.</p>

<p>Agreement to give a mortgage—enforced as an equitable lien as against a subsequent mortgagee with notice—failure to make a demand for the mortgage — burden of-proof as to bona tides — rights of subsequent purchasers and incumbrancers with and without knowledge of such agreement.</p> <p>A bond,, by the terms of which the obligor, who was the owner of real estate incumbered by mortgages which were then being foreclosed, assigns to the obligees, out of any surplus moneys realized on the foreclosure sale, ■ an amount equal to the amount of the obligees’ claim, and provides that,, in the event of the foreclosure proceedings being set aside or discontinued, the obligor will, upon demand, execute to the obligees a proper bond and mortgage upon the premises for the amount due to them, creates, in the event of the discontinuance of the foreclosure actions, an equitable lien upon the premises.</p> <p>The failure of the obligees to demand the execution of the mortgage as soon as the foreclosure actions were discontinued does not affect the obligees’ right to assert the lien except as against a tona fide purchaser.</p> <p>The burden of showing that a person who purchased the premises from the obligor subsequent to the execution of the bond was not a bona fide purchaser is upon the obligees.</p> <p>"Where it appears that such purchaser did have knowledge of the existence of the equitable lien when he took the conveyance, and that he executed a mortgage upon the premises to the Loan Commissioners of the State of New York, who also had knowledge of such equity, the mortgage executed to the Loan Commissioners is subordinate to the equitable lien.</p> <p>JSemble, that, if the purchaser took title without notice of the equitable lien, the mortgage executed to the Loan Commissioners would be superior to such equitable lien, even though the Commissioners had knowledge of the existence of such lien at the time they took the mortgage.</p>

Appeal by the plaintiff, Elizabeth Redpath, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk' of the county of Montgomery on the 25th day of January, 1902, upon the dismissal of the complaint by direction of the court upon the opening at the Montgomery Trial Term.

Appeal by the defendants, Harriet M. Biglow 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 Clinton on the 21st day of November, 1901, upon the verdict of a jury. ■ The facts are substantially as follows: In 1867 the premises in question were owned by John C. and Joseph Biglow.

Appeal by the defendants, The National Drug Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sara-toga on the 12th day of November, 1901, upon the report of a referee, restraining the defendants from the use of certain secret processes of the plaintiff in the manufacture of certain pharmaceutical preparations..

Writs of certiorari issued out of the Supreme Court and attested on the 19th day of October, 1901, directed to the Board of Eailroad Commissioners of the State of New York, and to the persons constituting such commissioners, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings in granting to the Cross Country Eailroad Company a certificate of public convenience and necessity under section 59 of the…

<p>E lection—duty of a county board of canvassers to certify separately the several names voted for and the ballots cast for each — they may not consider affidavits as to the party intended to be voted for — notice of appeal incorrectly describing the order appealed from — party to a mandamus pn'oceeding against the board of canvassers.</p> <p>Where the only nomination for .the office of sheriff in a county is that of B. Frank Kathan, and, after the election, it is found, upon a canvass of the votes, that Kathan received two hundred and eighty-six votes and that Nat Locke received two hundred and twenty-two votes, Nate Lock eight, James N. Lock twenty-four, N. Locke four, Nathan Lock two, J. N. Locke thirty-two and Nathaniel Locke sixteen, the county board of canvassers has no power to determine that all the votes cast at the election other than those cast for Kathan were cast for James N. Locke and to issue a certificate- of election to him, but should certify separately the several names voted for and the ballots cast for each, and issue the certificate of election to Kathan, who, on the face of such return, would be entitled thereto.</p> <p>Neither the county board of canvassers, when determining to whom the certificate of election should be issued, nor the court, in a proceeding to review the determination of the county board of canvassers, has power to consider affidavits from which it appears that there was only one man by the name of Locke who could have been intended by the voters and that he was known by the different names for which ballots were cast.</p> <p>A notice of appeal which incorrectly states the date of the order appealed from, but correctly describes it as an order making the appellant a party to the proceeding, sufficiently identifies the order.</p> <p>Where, upon a motion for a writ of mandamus, an interested party appears specially and raises the point that he was not, and should be, a party to the proceeding, and the court, upon its own motion, enters an order making him a party, and such person raises no objection thereto until after the proceeding has resulted unfavorably to him, an appeal taken by him from the order will be dismissed.</p>

Appeal by the defendant, Simon I. Nusbaum, from a judgment of the Supreme Court in favor of the plaintiff’s, entered in the office of the clerk of the county of Albany on the 23d day of November, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of November, 1901, setting aside the verdict of a jury in favor of the defendant and directing judgment for the plaintiffs for the full amount demanded in their complaint and…

<p>Appeal by the plaintiffs, Lawrence Sheary 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 Rensselaer on the ■ 26th day of November, 1901, upon .the decision of the court rendered after a trial at the Rensselaer Trial Term, a jury having been dismissed, and also from an order entered in said clerk’s office on the 29th day of October, 1901, denying the plaintiffs’ motion for a new trial made upon the minutes, and also from an order bearing date the 9th day of March, 1901, and entered in said clerk’s office, compelling the plaintiffs to reply to the defendants’ amended answer.</p>

Appeal by the plaintiff, Catharine Stevens, from ■ a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 13th day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term.-

Appeal by the defendant, Charles A. Stringer, from an order of the Supreme Court, made at the Madison Special Term and entered in the office of the clerk of the county of Madison on the 20th day of March, 1902, denying his motion to set aside the service of the summons and for leave to withdraw his notice of appearance.

Appeal by the relator, the Retsof Mining Company,' from an order of the Supreme Court, made at the Albany Special Term and entered ill the office of the clerk -of the county of Albany on- the 21st day of February, 1902, denying its motion to set aside and vacate an assessment of the special franchise tax of the relator for the year 1900, and appointing a referee to take evidence upon the issues raised by the petition, writ and return.

Appeal by the defendant, Ellen Riordan, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Warren on the 18th day of December, 1901, upon the decision of the court rendered after a trial at the Warren Trial Term, a jury having been waived.

Certiorari issued out of the Supreme Court and attested on the 11 th day of January, 1902, directed to Charles H. Sisson and others, as town auditors, and the board of town auditors of the town of Altainont, Franklin county, H Y., commanding them to certify and return to the office of the clerk of the county of Franklin all and singular their proceedings in rejecting the relator’s claim for supplying water for fire protection pursuant to a written contract made by the town…

Appeal by the defendants, John H. Smith and another, from so much of an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Washington on the 14th day of October, 1901, upon the decision of the court, rendered after a trial at the Saratoga Special Term, as-directs that the premises conveyed to the defendants John H. Smith and Charles E. Smith by deed bearing date the 29th of September, 1896, be first…

<p>Parties to an action for tort—action for tori against the president or treasurer of an association—complaint alleging a conspiracy to ruin a business and, also charging libel and slander — special injury from a combination to prevent competition iri trade.</p> <p>A complaint in an action in tort is not demurrable because some of the joint tort feasors have not been made parties defendant, nor does the fact that persons have improperly been made defendants render it demurrable as to a person who has been properly made a defendant.</p> <p>An action based upon a tort committed by all the members of an unincorporated association, acting through the association, may, under the provisions of section 1919 of the Code of Civil Procedure, be maintained against the president or treasurer of the association.</p> <p>Where the gravamen of the complaint in an action is that the defendants unlawfully conspired to ruin the plaintiffs’ business, the fact that it alleges that, in the accomplishment of their purpose, the defendants circulated libels and uttered slanders concerning the plaintiffs, does not render the complaint demurrable as stating more than one cause of action.</p> <p>A person suffering special injury from an act done in furtherance of a combination entered into for the purpose of preventing competition in trade in. commodities in common use, or for kindred purposes, which combinations are declared to be illegal by chapter 690 of the Laws of 1899, has a right of action to recover the damages sustained by him.</p>

Appeal by the defendant, Mutual Reserve Fund Life Association, from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered in the office of the cleric of the county of Rensselaer on the 23d day of November, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 20th1 day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles B. Waldron, from an order of the County Court of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 6th day of January, 1902, setting aside the verdict of a jury in favor of the defendant and granting a new trial of the action.

<p>Appeal by the plaintiff, John Duval, by Toussant Duval, his guardian ad litem, from a judgment of the County Court of Clinton County in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 15th day of January, 1902, upon the decision of the court reversing upon appeal a judgment in favor of the plaintiff rendered by a justice of the peace.</p>

Appeal by the defendant, The Syracuse, Binghamton and New York 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 Cortland 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 5th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p> Appropriation of -a part of a fa/rm by the State, by piling material from, the canal thereon—the measure of damages is determined by the mlue of the farm before and, after such appropriation. </p> <p>Where the house and barn, on a farm having- a highway frontage of five hundred feet, are located near the opposite ends of such frontage, and the State, when building a canal, appropriates an acre of the frontage lying between the house and the barn, and dumps thereon three conical heaps of excavated material, twenty or thirty feet in height, the measure of damages recoverable by the owner of the farm is the difference between the value of the farm before and such value after the deposit of the material.</p>

<p>Tax—vessels used by a New York corporation in navigating between Buffalo and places outside the State of New York, held not tobe “ capital stock employed within this State” — “ capital stock employed within this State” defined.</p> <p>A domestic corporation, having its principal office in the State of New York and engaged in business which was wholly of an interstate character, owned three vessels which did not run on any particular route, but plied between* the port of Buffalo and other ports on the Great Lakes. About three-fourths of the cargoes carried by the vessels were shipped or received at the port of Buffalo, but less than two per cent of the total mileage made by such vessels was made within the State of New York. No* trips were made between any two ports in the State of New York, and the vessels remained during the winter wherever they happened to be at the close of navigation.</p> <p>Neld, that the vessels were not " capital stock employed within this State ” within the meaning of section 182 of the Tax Law.'</p> <p>The words “capital stock,” used in section 182 of the Tax Law, which provides, “Every corporation * * * organized * * * by or pursuant to law in this State shall pay to the, State Treasurer annually an Annual, tax to be. computed upon the basis of the amount of its capital stock employed within this State,” refer to the capital or property of the corporation and not to "the “share stock,” and the words “employed within this State” us'ed in that sec- * tion do not mean simply the legal situs of the property of the corporation.</p>

Appeal by the plaintiff, Hugh McGuckin, from a judgment of the County Court of Cortland county in favor of the defendant, entered in the office of the clerk of the county of Cortland on the 18th day of January, 1902, upon the decision of the court, reversing upon appeal a judgment of the City Court of the city of Cortland in favor of the plaintiff.

Certiorari issued out of the Supreme Court and attested the 16th day of November, 1901, directed to Erastus C. Knight, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular the proceedings had before him on the application of the relator for the. revision and readjustment of a corporation franchise tax imposed upon it for the year ending October 31, 1900.

Appeal by the defendant, George A. Kerr, from a judgment of the County Court of Ulster county in favor of the plaintiffs, entered in the office of the clerk of the county of Ulster on the 21st day of February, 1902, upon the decision of the court, affirming upon appeal .a judgment in favor of the plaintiffs, rendered by the City Court of Kingston.

Appeal by the defendant, Edward E. Powell, from a judgment of the County Court of Broome county in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 12th day of June, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of Hay, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Reckitt & Sons, Limited, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 25th day of March, 1902, upon the report of a referee, for $7,000, with notice of an intention to bring up for review upon snch appeal an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 25th day of March, 1902,…

Appeal by the relator, The Town of Walton, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 3d day. of February, 1902, denying its motion for a peremptory writ of mandamus.

Appeal by the defendant, Alanson A. Sumner, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Saratoga on the 30th day of January, 1902, denying his motion for an order requiring the plaintiff to serve an amended complaint, wherein shall be stated in one count the facts constituting his alleged cause of action for the maintenance, continuance and use of the dam therein mentioned and in another count…

<p>Appeal by the Doctor David Kennedy Corporation, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 18th day of March, 1902, directing the issuance óf a peremptory writ of mandamus compelling the Doctor David Kennedy Corporation to submit to an examination of its books and records.</p>

<p> Statute of Wrauds—evidence that the consideration of an obligation to pay another&■ debt was a chattel mortgage given by the debtor is incompetent under a complaint alleging the consideration to be the refraining from entering a judgment against the debtor. </p> <p>The complaint in an action brought by the survivors of the firm of Bradt, Becker & Co. against John Krank and John L. Mynderse to recover on the following instrument:</p> <p>“Schenectady, N. Y., August 11, 1897.</p> <p>“ We, the undersigned, John Krank and John L. Mynderse, hereby agree to-pay David Bradt, Becker & Co. a bill of two hundred and sixty-five dollars and. fifty cents ($265.50) against Church & Jones between now and Tuesday next week. ' . “(Signed) JOHN KRANK.</p> <p>“JOHN L. MYNDERSE.”</p> <p>alleged that the consideration for the instrument was an agreement by Bradt, Becker & Co. to refrain from entering a judgment which they had obtained against Church & Jones and to discontinue the action.</p> <p>Held, that it was error to allow the plaintiffs, for the purpose of taking the agreement out of the Statute of Frauds, to prove that Krank and Mynderse had received from Church & Jones a chattel mortgage, running to Mynderse only, to secure or indemnify them against the liability created by the instrument sued upon.</p> <p>Qumre, whether such evidence, if admissible, would take the instrument sued upon out of the Statute of Frauds.</p>

<p>Appeal by the defendant, Hugh J. Baldwin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tioga on the 9th day of September, 1901, upon the verdict of a jury for $450, and also from an order entered in said clerk’s office on the 5th day of September, 1901, denying the defendant’s motion for a new trial made upon the minutes-.</p>

Appeal by the defendant, the Town of Indian Lake, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 25th day of February, 1902, upon the decision of the court rendered after a trial at the Saratoga Special Term overruling a demurrer to the complaint.

Appeal by the defendants, Agnes S. Gladdings and another, from a judgment of the Saratoga County Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 27th day of February, 1902, upon the decision of the court reversing upon appeal a judgment in favor of the defendants rendered by a justice of the peace.

<p>Appeal by the defendant, Edwin L. Hall, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 10th day of May, 1901, upon the decision of the court, rendered after a trial at the Saratoga Special Term, sustaining a demurrer to a defense contained in the defendant’s answer.</p> <p>The complaint alleges in substance the incorporation of the plaintiff ; that prior to the commencement of the action the plaintiff was the owner and entitled, to the immediate possession of the sum of sixty-five dollars; that theretofore “ and between the thirteenth day of February, 1899, and the date of the commencement of this action, the defendant did wrongfully, fraudulently and unlawfully convert, misappropriate and embezzle said property to wit: said sum of sixty-five dollars, the same being lawful money of the United States of America.” The complaint further alleges that before the commencement of the action the plaintiff duly demanded the said property, but the defendant refused to deliver the same to the plaintiff’s damage “ of the sum of sixty-five dollars, with interest from the date of said conversion, misappropriation and embezzlement.”</p> <p>In his third defense defendant alleges a discharge in bankruptcy. To this defense the plaintiff demurred as insufficient in law upon the face thereof. The demurrer , was by the Special Term sustained, and from the judgment entered upon the decision this appeal is taken.</p>

■■ Appeal by the’defendant,-Relson. J.' Van' Rorder, from a judgy ment of the Supreme Court in favor of the plaintiff, entered in the office of. the cleric of the county of Saratoga on. the 21st day of February, 1902, upon tlie verdict' of a jury, and also from an order' entered in said clerk’s office on the 3d day of March, 1902, denying the defendant’s motion for á new trial made upon the minutes. - * 1

<p>Appeal by J. Edward Howland and Fred D. Howland from. so much of a decree of the Surrogate’s Court of the county of W ashington, entered in said Surrogate’s Court on the 15th day of February, 1902, admitting to probate the will of Amasa Howland, deceased, as adjudges that the 5th clause of said will creates a valid trust.</p> <p>The will of Amasa Howland j after the direction for the payment of debts, gives several legacies, and in the 5th paragraph assumes to dispose of all the rest and residue of his estate. The material part of that provision is as follows: “ Fifth,. All the rest, residue and remainder of the property and estate real and personal of every description and wheresoever situated of which I may be seized or possessed or to which I may be entitled at the time of my decease, I give, devise and bequeath to my sons, J. Edward Howland and Frederick D. Howland and Grenville M. Ingalsbe and John E. Parry, in trust, however, for the uses and purposes hereinafter named, to hold, manage and control the same and receive and invest the dividends, increase, rents and profits thereof or therefrom from time to time; and the proceeds of or any part of, the same that -may be sold or disposed of and keep the. same invested for the use and benefit of my grandchildren, the children of my sons, J. Edward Howland and Frederick D. Howland, during the time and until said children shall attain the age of twenty-one years, severally. The whole amount of said property so bequeathed, in trust, with the increase and accumulations (less all taxes, expenses and commissions properly chargeable thereto) to be equally divided between and paid over to said children, share and share alike, as said children severally become twenty-one years of age, absolutely for their own property. But if either said children (grandchildren of mine) shall, die before becoming twénty-one years of age, then the whole of said residuary estate to go to and belong to the child or children of my said sons who shall attain the age of twenty-one years.”</p> <p>Amasa Howland at his death left two sons, J. Edward Howland, forty years of age, and Frederick D. Howland, aged thirty-six, both of whom were married. At the time of the execution of the will and at the time of the testator’s death, his son F. D. Howland had three children aged respectively nine, four and three. J. E. How-land had no children living at the time of the execution of the will or at the time of the death of his father. The will is dated March 30, 1899, and Amasa Howland died July 16, 1901. The will was offered for probate by the three executors exclusive of J. Edward Howland, who filed an answer setting forth the invalidity of' the 5th paragraph of the will as far as it assumed to. dispose of personal property. The surrogate determined the will to be valid, and from the decree entered upon that decision this appeal is taken.</p>

Appeal by the defendant, The Town of Day, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 27th day of November, 1901, upon the decision of the court rendered after a trial before the court without a jury at the Saratoga Trial Term, with notice of an intention to bring up for review upon such appeal an order granting the plaintiffs an extra allowance of costs.

Appeal by the defendants, Gertrude J. Harris 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 Saratoga on the 11th day of January, 1902, upon the decision of the court, rendered after atrial at the Saratoga Special Term, fixing the boundaries of land described in a deed from Jennie Sherman to the Fort Miller Pulp- and Paper Company, and declaring the interests of all parties therein and…

Appeal by the petitioner, the Greenwich and Johnson ville Railway Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 20th day of February, 1902, upon the report of a referee dismissing the petition.

<p>Insurance—action, after an appraisal, to vacate it and recover under the policy — right to judgment for the amount of the award where it is sustained.</p> <p>Where a loss occurs under a policy of fire insurance and, pursuant to the terms of the policy, the amount of the loss is submitted to appraisers who make an award of a sum less than the amount of the policy, and the owner refuses to accept the award and brings an action upon the policy to recover the. full amount thereof, alleging in his complaint facts tending to show that the award made by the appraisers was invalid, and the court finds that the award was valid and represented the actual amount of the loss, it should not dismiss the complaint, but should award a judgment against the defendant for the damages actually sustained.</p>

Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure. Prior to September 22, 1900, the decedent, Matthias C. Arnot, and the plaintiff, Elizabeth T. Arnot, were married, and on said 22d ■day of September, 1900, said Matthias C. Arnot made his last will and testament. On the 31st day of July, 1901, said Matthias O. Arnot died the owner of personal and real property.

Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 12th day of November, 1901, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 14th day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Harry A. Hewett, from a judgment of' the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 1st day of February, 1902, dismissing the complaint, with notice of an intention to bring up for review upon such appeal an order of the Supreme Court,, entered in said clerk’s office on the 7th day of January, 1902, requiring the plaintiff to pay ten dollars term costs within twenty-days after entry of…

Appeal by the defendant, Sebastian Haag, from an order of the County Court of Albany county, entered in the office of the clerk of the county of Albany on the 24th day of October, 1901, directing the defendant to pay to the receiver of his property the sum of $100 within ten days after the personal service of such order upon him, and providing that if the - said Sebastian Haag should fail to pay said $100 as directed by said order, an attachment should issue against him for…

Appeal by the defendant, Local Union No. 726 of the United Brotherhood of Carpenters and Joiners of America, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county' of Westchester on the 2d day of January, 1902, upon the decision of the court rendered after a trial at a term of said court.

Appeal by Bridget Welsh and others, from a decree of the Surrogate’s Court of Queens county, entered in said Surrogate’s Court on the 20th day of December, 1901, upon the judicial settlement of the accounts of William K. Murray, as executor, etc., of Michael Welsh, deceased.

Appeal by Mathan L. Miller, as Comptroller of the State of Mew York, from an order of the Surrogate’s Court of Kings county, ■entered in said Surrogate’s Court on the 3d day of March,. 1902, vacating an order theretofore entered in the proceeding upon the report of the appraiser appointed under the Taxable Transfer Act, ■and remitting said report to the appraiser for correction.

Appeal by August Westplial and others, the plaintiffs in the three above-entitled actions, from judgments of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of July, 1901, and on the 25th day of October, 1901, upon decisions of the court rendered after a trial at the Kings County Special Term. The three cases were tried together.

Appeal by the plaintiff, Lear Jager, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of August, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, John Kinsey,- 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 15th day of April, 1902, upon the verdict of a jury.

Appeal by the relator, Michael O’Keeffe, 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 18th day of February, 1902, denying the relator’s motion for a peremptory writ.of mandamus.

Appeal by the plaintiff, Zachariah T, Allison, from a judgment, of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rockland on the 29th day of June, 1900, upon the dismissal of the complaint by direction of the court after a trial at the. Rockland Trial Term, with notice of an intention to bring up for review upon such appeal the order directing the dismissal of the complaint, and refusing to submit the action to the jury.

Appeal by the defendant, The City of Poughkeepsie, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 17th day of September, 1901, upon the verdict of a jury for $600, and also from an order bearing date the 13th day of September, 1901, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Charles J. Carroll, as receiver, etc., of Robért W. Steger, by permission of the court, 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 24th day ■ of March, 1902, setting aside the order appointing him receiver and the order empowering him to sell property of the judgment debtor.

Appeal by the plaintiff, Clemens Koch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 10th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, John J. Manning, as President of ' Local Union No. 471 of the United Brotherhood of Carpenters and Joiners of America, 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 31st day of January, 1902, denying the defendant’s motion to vacate and set aside a judgment obtained by the plaintiff against the defendant in the Municipal Court of the city of New York,…

Appeal by the plaintiff, Christina Johnson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 3d day of April, 1902, granting the defendant’s motion for leave to file an amended notice of appeal and undertaking, and directing the plaintiff to make restitution of a certain sum collected by her upon a judgment against the defendant,

Appeal by the plaintiff, John P. McNeil, from a judgment of the Supreme Court in favor of the deféndant, The Sun and Evening Sun Building, Mutual Loan and Accumulating Fund Association,, entered in the office of the clerk of the county of Kings on the lifthday of May, 1901, upon the decision of the court, rendered after a. trial at the Kings County Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendants! Iíenry S. Haul, individually*, and others, from a judgment of the Supreme Court in . favor of the plaintiffs and certain of the defendants, entered in the office- of the clerk of the county of Kings on the 9th- day of December, 1901, after a jury had rendered a verdict upon certain issues of fact submitted to them, and also from an order of the Supreme Court, made-at the Kings County Trial Term and entered in the office of the clerk of the county of…

Appeal by the defendant, The Brooklyn Heights. Railroad 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 12th day of May, 1902, denying the ■defendant’s motion for the settlement of a proposed order denying the defendant’s motion for a new trial made upon the minutes.

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

<p> ^Revocation of a liquor license because of a door to a barroom being left open on Sun-dag—evidence as consistent with innocence as with wrongdoing. </p> <p>Where, in a proceeding for the revocation of a liquor tax certificate because of the alleged violation of the Liquor Tax Law by the holder of the certificate, ■ the evidence relied upon by the petitioner is equally as consistent with innocence as with wrongdoing, that construction must be placed upon the evidence which will exonerate the certificate holder from an intention to violate the law.</p> <p>Evidence that the door leading into the barroom of a hotel was left open on a Sunday will not justify the revocation of the hotel proprietor’s liquor tax certificate where it appears that such door was necessarily left open for the use of the waiters engaged in serving meals and drinks to the .guests of the hotel and that guests who intruded into the barroom were promptly ejected therefrom.</p>

<p>Appeal by the plaintiff, Carmine- Sposato, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 21st day of March, 1902, upon the dismissal- 'of the complaint by direction of the court upon the opening of counsel at a trial at the Nassau Trial Term.</p>

<p>Negligence — injury from falling upon ice formed the night previous upon the hallway of a tenement house, from a defective water closet above in Which the defect had existed for two weeks —presumption of notice thereof to the landlord.</p> <p>Where a tenant, in possession of apartments in a .tenement house, sustained injuries by falling in one of the hallways common to the use of all the tenants, upon ice which had formed upon the floor from the leakage' ■ of a water-closet overhead and from the freezing temperature of the hallway, the fact that the ice had formed only the night before the accident will not relieve the landlord from liability, when it appears that the leaky condition over, the hall, arising from the defective .condition of the closet, had existed for at least two. weeks before the accident, and that the attention of the janitress of the building had been called to it some days before.</p> <p>In such a case the diligence required of the landlord is to be measured, not from the time that the ice had formed, but from the length of time that the water had been allowed to drip upon the floor of the' hallway.</p>

Appeal by the plaintiff, the New York Building Loan Banking Company, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 1.6th day of August, 1902, and entered in the office of the clerk of the county of Kings, denying the plaintiff’s motion for .the appointment of a receiver of the rents and profits of the mortgaged premises during the pendency of the action.

<p>Appeal by the defendant, Caroline D. Ely, from - a judgment of the Süpreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 2d day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, William F. Randel, 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 2d day of January, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint Upon the merits.

Appeal by the defendant, Aelaine Kelly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the •clerk of the county of Kings on the 26th day of June, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the claimant, Martha Hart, from a judgment of the Supreme Court in her favor, entered in the office of the clerk of the county of Richmond on the 6th day of March, 1902, upon the report of a referee. The appeal is taken upon the ground that the recovery was inadequate.

Appeal by the plaintiff, Jacob Hill, by his guardian ad litem^ Abram Martineau, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of .

Appeal by the plaintiff, Louisa Schlotterer, an infant, prosecuting as a poor person, by Margaret Schlotterer, her guardian ad litem, 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 8th day of May, 1901, upon the verdict of a jury.

<p>Appeal by the plaintiffs, Alfred E. Sander and another, as committee of the estate of Victoria Berger, an incompetent, 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 3d day of December, 19.01, upon the dismissal of the complaint by direction of the court at the Kings County Trial Term, upon the opening of counsel, and also from an order bearing date the 3rd day of December, 1901, and entered in said clerk’s office, denying the plaintiffs’ motion for a new trial.</p>

<p>Monument — what expenditure therefor by an executor is excessive—proof of deala/ralions of the testator as to his wishes — claim by an executor against his testator's estate—proof required in support thereof</p> <p>Where the will of a decedent, whose entire estate amounted to §2,410, authorized his executor to purchase and erect in the testator’s burial plot a monument of New England granite of sufficient size to cut thereon a. dozen names mentioned in the will with dates of birth and death and also to erect a suitable fence around the plot with granite posts, an expenditure of §1,050 by the executor for this purpose will not be sustained.</p> <p>The language of the will in reference to the monument being entirely clear and unambiguous, the executor should not he permitted to produce witnesses or go upon the stand himself to testify to declarations made by the testator in his lifetime, tending to justify the extravagant outlay for the monument. The evidence of the executor concerning such declarations is subject to the additional objection that it is incompetent under section 829 of the Code of Civil Procedure.</p> <p>A claim against the estate of a testator presented by his executor should not he allowed, where the sole proof in support thereof is a copy of such claim verified by the executor. The executor’s verification of such a claim is incompetent as evidence under section 829 of the Code of Civil Procedure.</p>

<p>Surrogate’s decree against executors — reversed, when there is- no proof as to their possession of funds of the estate and no decision or finding by the surrogate.</p> <p>Upon the affirmance by the Appellate Division of a judgment obtained against the executors of an estate, the executors took and perfected an appeal from the judgment to the Court of Appeals, but gave no security to stay execution. The judgment creditor thereupon instituted proceedings against the executors in the Surrogate’s Court under section 2722 of the Code of Civil Procedure, to compel payment of the judgments. The answer filed by the executors raised an issue as to the possession of funds applicable to the payment of the judg^ ments. The proceeding resulted in a decree reciting that the fact of the possession of such funds was proved to the satisfaction of the surrogate and directing the executors to pay the judgments or to file a bond to secure such payment.</p> <p>Upon an appeal taken by the executors from such decree it was admitted that no proof, as to the possession by the executors of funds applicable to the payment of the judgments was produced upon the hearing before the surrogate, and it appeared that the surrogate made no decision in writing and no findings, and that no request was made for findings or any exception taken or filed, and that there had been no settlement of the case upon appeal.</p> <p>Held, that the decree should be reversed and the proceeding remitted to the Surrogate’s Court for trial and decision.</p>

<p>Appeal by the plaintiff, Albert W. Seaman, as trustee of the estate of Eliza Eagle, deceased, 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 Nassau on the 29th day of April, 1902, setting aside two judgments previously- entered in the action.</p>

<p>Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of November, 1901, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 3d day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Laches—a refusal to vacate a judgment of mortgage foreclosure, where the rights, of innocent parties have intervened because of the delay, sustained on appeal. </p> <p>The Special Term may, in its discretion, properly deny an application by a person,, claiming to be a stockholder of a corporation which consolidated with another corporation, to vacate a judgment foreclosing a mortgage executed by the latter corporation prior to the consolidation and to permit him to intervene and defend the action in order to enable him to litigate the question whether the mortgage was a lien upon the property of the corporation in which the petitioner was a" stockholder where it appears that the property in question has passed into the possession of another company; that §1,350,000 of bonds issued against such property are outstanding in the hands of bona fide holders; that the petitioner’s title to the stock claimed by him is involved in doubt; that the motion was not made until nearly seven years after the entry of the judgment of foreclosure and sale, and until more than three years since the rendition of a decision that the judgment of foreclosure was subject to such an application as that made by the petitioner, and that the petitioner had had abundant means . of knowledge of the material facts for many years.</p>

Appeal by the plaintiff, Charles E. Alsberge, from 'so much of 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 3d day of March, 1902, upon the decision of the court rendered after a trial' before the court without a jury at the Kings County Trial Term, as. adjudges that the plaintiff is entitled to recover for damages the sum of twenty-one dollars and seventy-eight cents only, instead of the amount…

Appeal by the relator, Lily Watson,, from the whole of a final 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 9th day of December, 1901, upon the return of a writ of habeas corpus awarding the custody of the relator to the petitioner, Helene Watson; also an appeal by the defendant, George.

Appeal by the'plaintiff, Georgia L. Everett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of July, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint.

<p>Contract to build a vessel of a certain speed, held to contain a wa/tranly which survived acceptance — measure of damages—proof that the vessel didnot obtain profitable employment, as bearing on its market value—a verdict bordering on excessive damages, as influencing the granting of a new trial.</p> <p>Words relating to the speed of a vessel contained in the following contract, “ to furnish all materials and build in a thorough and workmanlike manner one - steel steamer, having a speed in smooth water of 10 knots when loaded to a draft of 18 feet 9 inches. To have a capacity of about 175,000 cubic feet, and about 3,800 tons dead weight capacity on a draft of between 18 feet 9 inches and 19 feet 3 inches,” are not merely descriptive of the vessel, but embody a ■collateral warranty which will survive acceptance.'</p> <p>The measure of damages for the breach of such warranty is the difference between the market value of the steamship as she was and as she was warranted to be.</p> <p>Conceding that proof, that a vessel of the size and speed of the vessel in question-could not procure the most profitable form of employment known as time charters, is competent as bearing upon the question of the market value of the vessel, the owners thereof should not be allowed ,to prove generally that they were unable to obtain time charters for the vessel, where no evidence is given tending to show that such failure was due to the vessel’s lack of speed.</p> <p>Where a jury awards a verdict so large as to border on what would be an excessive amount, a new trial should be granted for an error in the reception or rejection of evidence relating to the question of damages, even though the " erroneous ruling might be disregarded in other cases- upon the ground that no substantial prejudice resulted therefrom.</p>

Appeal by the plaintiffs, Mary E. Beeston and others, from a judgment of the Muni^al Court of the city of New York, borough of Brooklyn, in favor of the defendants, entered on the 13th day of March, 1902, dismissing the complaint upon the merits.

Appeal by the defendant, the Dry Dock, East Broadway and Battery Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 14th day of March, 1902, upon the decision of the court.

Motion by the plaintiff, The German-Ameriean Bank of Tonawanda, New York, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the defendant rendered by direction of the court, after a trial at the Erie Trial Term.

<p> Time, how computed—service of .a summons in a Justices Court. </p> <p>In computing time, if the specified event is to occur a certain number of days after a definite day, then that day is to be excluded ; if it is to be a certain number of days before a certain day, then- the last day is to be excluded and the first day counted.</p> <p>Under chapter 414 of the .Laws of 1881, .governing the entry in a Justice’s Court of a judgment upon a verified complaint, section 1 of which requires that , the summons and complaint be served upon the defendant personally “not less than six or more than twelve days before the return day thereof,” the return day must be excluded from the reckoning and the date of the service of. the summons included. "</p> <p>Under section 2878 of the Code of Civil Procedure, providing that service of the summons in an action in the Justice’s Court must be made at least six days before the time of appearance specified therein, the day of the appearance is to be excluded from the reckoning.</p>

Appeal by tbe contestants, Moses W. Dake and others, from a decree of the Surrogate’s Court of the county of Livingston, entered in said Surrogate’s Court on the 8th day of July, 1901, by which it was adjudged that the papers propounded for probate by Fanny M. Dake, the widow of said Jonathan M. Dake, should he admitted to probate as his last will and testament and codicils thereto.

<p>Appeal by the defendants, The Pennsylvania Railroad Company and another, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 6th day of August, 1902, authorizing, permitting and empowering the plaintiff to intersect and cross at grade the right of way and tracks of the defendants at a point in the town of Portville, Cattaraugus county, N. Y., and to carry its feed and trolley wires over the tracks and right of way of the said defendants.</p>

<p>Costs— award thereof where a defendant succeeds in establishing an offset to a mortgage instead, of its reformation, which she asks for — testimony of the plaintiff, when competent as an admission.</p> <p>Where one of the defendants in an action to foreclose a mortgage seeks to obtain a reformation of the mortgage upon the ground that it does not embody the; true agreement between the parties to it and is defeated on that claim,, hut does succeed in obtaining an adjudication that she is entitled to offset,, against her liability upon the bond and mortgage, the value of certain whisky certificates, and after the trial at Special Term a reference is ordered' to* determine the amount of the mortgage and the value of the whisky certificates, it is improper to award to such defendant the entire costs of the action;; the plaintiff should be allowed the costs up to and including' the trial at the-Special Term and the defendant should he awarded the balance.</p> <p>Testimony given by the plaintiff, on the trial at Special Term, concerning the-value of the whisky certificates, may he read in evidence by the defendant on the hearing before the referee as the admission or declaration of a party to the. action.</p>

Appeal by 'the defendant, Janet T. Malcolm, as executrix, etc., of James F. Malcolm, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of June, 1902, denying the defendant’s motion to set aside a certificate made by the trial justice under the provisions of section 1836 of the Code of Civil Procedure upon the ground that the payment of the plaintiff’s claim had been…

<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 8th day of July, 1902, upon the verdict of a jury rendered by direction of the. court.</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 13th 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 25 th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the New York and Texas 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 New York on the 28th day of February, 1902, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

<p>Lis pendens—not notice of rights in corporate stock—a stock certificate is nota negotiable instrument — duty to show that it was acquired in good faith.</p> <p>The equitable doctrine of notice by lis pendens does not apply to shares of corporate stock.</p> <p>Stock certificates are not negotiable instruments, although in the .hands of hold- ' ers for value and without notice they are invested with some of the characteristics of such instruments.</p> <p>Where, on the trial of an action involving the ownership of certain certificates of corporate stock, it appears that, in a previous action between one of the claimants and the assignor of the adverse claimant, the first-mentioned claimant’s owernship of the stock as against the adverse claimant’s assignor was established, it is incumbent upon the adverse claimant to establish that she acquired the certificates in good faith.</p> <p>Van Brunt, P. J„ dissented.</p>

Appeal by the defendants, August E. Gallun 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 30th day of July, 1902, denying the defendants’ motion to set .aside levies under warrants of attachment.

<p>Appeal by the petitioner, Samuel Mollner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of September, 1902, denying the petitioner’s motion to cancel a judgment obtained against him by one John A. Moore.</p>

Appeal by the plaintiff, Annie Spindler, from a judgment of the Supreme Court in favor of the defendants, Mary E. Gibson and another, entered in the office of the clerk of the county of New York on the 18th day of February, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York . Trial Term.

<p>Costs — security for, when required of a trustee in bankruptcy as a matter of right — when in the discretion of the court.</p> <p>In an action brought by a trustee in bankruptcy upon a cause of action arising-prior to the adjudication in bankruptcy, the defendant, if not guilty of laches, is entitled, as a matter of right, under section 3268 of the Code of Civil Procedure, to require the plaintiff to give security for costs.</p> <p>Semble, that if the application to require the plaintiff to give security for costs is-made under section 3271 of the Code of Civil Procedure, the granting of such application is discretionary with the court.</p>

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of General Sessions of the Peace ■ in and for the county of New York, entered in the office of the clerk of said court on the 12th day of September, 1902, allowing a demurrer to an indictment found against the defendants.

Appeal by the defendant, Nathaniel Niles,'from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day.of April, 1902, upon the decision of the court rendered upon the pleadings after a trial at the New York Trial Term, a jury having been waived.

Appeal by the defendants, Joseph Sonberg and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of December, 1901, upon the decision of the court rendered after a trial at the New York Special Term. .

Appeal by the plaintiff, William Peyton Mason, from an order of the Supreme Court, made at the New York Special Term, bearing date the 1st day of November, 1901, and entered in the office of the clerk of the county of New York, requiring the plaintiff to serve a bill of particulars.

Appeal by the defendant, H. H. Warner & Company, 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 28th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of March, 1902, denying said defendant’s motion for a new trial made upon the minutes.

Appeal by the Empire City Fire Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on -the 13th day of September, 1902, directing the said company to issue to the petitioner a new certificate of stock in place of one alleged to have been lost or destroyed.

Appeal by the plaintiff, The Preservaline Manufacturing Company, from an order of the Supreme Conrt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1902, granting the defendant Selling leave to file and serve a supplemental answer.

<p>Appeal by the defendants, Isaac Rothschild and another, 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 10th day of February, 1902, setting aside as inadequate the verdict of a jury in favor of the plaintiff for $200 rendered upon the trial of the action and granting a new trial.</p>

Appeal by the defendant, the John A. Mead Manufacturing Co., from an order of the Supreme Court,, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of August, 1902, taxing the poundage of the sheriff of the county of New York at forty dollars, and directing the defendant to pay to said sheriff the said sum of forty dollars within ten days after service of a copy of the order.

Appeal by the defendants, Jacob A. Cantor, individually and as president of the borough of Manhattan 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 3d day of July, 1902, granting the petitioner’s motion for a peremptory writ of mandamus.

<p>Will—devise to the widow for life, and on Tier death to trustees for the minorities of infants surviving her —sale by trustees and by general guardian of the infants — sale of infants’ estate “contrary to the provisions of a will”—contingent remainders given to infants may be sold—interest of the trustees before the widow’s death — death prior to that of the widow of some or all of the children—protection of the interests of the remaindermen.</p> <p>The will of Simon A. Asoh contained the following clause: “To my dear wife Sarah, daughter of Emanuel Stern, during her life-time, the house No. 308 W. 56 street, in which wé are at present living, together with the income from my half share in the houses No. 230, 282, 320, 322, 324, 326, 328 & 330 : East 72 Str. No. 826 (329) W. 38 Str. and * * * 434 W. 27 Str. This income to be paid to her in installments, at least once every three months, or oftener, if convenient. At her death, the whole of the above named property to he kept in trust for our children then living and to be divided in equal shares amongst them on their reaching their twenty-first birthday.” An action to construe the will was brought and resulted in a determination that the testator’s widow had a vested life estate in the premises 308 West Fifty-sixth street; that on her death the trustees would hold the premises upon several distinct trusts for the benefit of those' children of the testator who survived their mother; that on the termination of the minority, of any child, or upon the death of any child during minority, the trust for that child would absolutely cease and determine, and that each of the children of the testator who might be living at the death of the mother would take a vested estate in remainder, expectant upon the termination of the trust at majority; that in the event of the death of any child before attaining majority, the share or portion held for the benefit of such child would he freed from the "trust and the same would pass absolutely to his or her heirs or deviséés; and further that the trusts and remainders limited thereon did not cause an unlawful suspension of the power of alienation and that the same were in all respects valid and effectual. The decree did not expressly determine who would be entitled to the property in case of the death of all the children before their mother, in which event the trust estate would not arise.</p> <p>After the rendition of this decree, the trustees under the will, the widow and ' the guardian of the infant remaindermen instituted a joint proceeding for the sale of the property known as 308 West Fifty-sixth street. The application, so far as the trust interest was concerned, was made under sections 85 and 87 of the Real Property Law (Laws of 1896, chap. 547), and, so far as the legal estates in remainder were concerned,' under the provisions of section 2348 of the Code of Civil Procedure. An order was entered in the proceeding directing that the premises be sold, including the estates both of the trustees and of the infants, and authorizing the special guardian for the infants to contract for the sale of the premises for a sum not less than $18,000, and that, if required by the purchaser, the widow individually and the executors and trustees under the will should join with the special guardian in a deed of the premises.</p> <p>Thereafter one Danahar entered into a contract with the widow, the executors and trustees under the will, Edgar Asch, one of the children of the testator who had attained his majority at the time the contract was made, and the guardian ad litem for the infant children, by which Danahar agreed to pay $18,250 for the fee simple of the premises free from all incumbrances. After the court had approved the contract, Danahar made a motion to be relieved therefrom, on the ground that he would not receive a good title to the premises. No question was raised as to the form of the proceeding or as to the propriety of making the sale.</p> <p>Held, that the sale of the infants’ interests was not prohibited by section 2357 of the Code of Civil Procedure providing that real property of an infant should not be sold “ contrary to the provisions of a will by which it was devised,” as there was no clause in the will in question from which an implication might be drawn that a sale of the property would be contrary to the provisions thereof;</p> <p>That the. fact that the estates of the infants were, contingent remainders in fee did not prevent the court from exercising its jurisdiction to direct a sale of such interests;</p> <p>That, inasmuch as the trust estate could never attach to the interest of the child of the testator who had attained his majority, the trust estate embraced an undivided part of the real estate, and that the court had authority to direct a sale of such trust estate under section 85 of the Real Property Law (Laws of 1896, chap. 547);</p> <p>That, although there was no present right of possession in the trustees and the trust estate was future and contingent, the trustees had such an interest in the property as would incumber the purchaser’s title unless that interest was lawfully extinguished or transferred to the proceeds of a sale of the land, and that such interest was capable of being sold by order of the court;</p> <p>That, as all of the testator’s children were parties to the proceeding, the purchaser’s title would not be affected by the death of some or all of the children of the testator before the life tenant for the following reasons, viz.: In case of the death of some of them the interest of the children dying would pass to the other children. In case of the death of all (which circumstance was not provided against in the will) there would be intestacy as to the remainders and the children would take as heirs at law of the testator as of the time of the testator’s death;</p> <p>That the fact that unborn grandchildren of the testator might hereafter become interested in the property would not affect the title which the purchaser would acquire, as the rights of such unborn grandchildren were represented in this proceeding by their parents;</p> <p>That the interests of all who were or might become entitled to. any of the proceeds of sale were protected by the provision of the order directing a conveyance, requiring the special guardian to report to the court the disposition and investment of the proceeds, and that he render annual accounts of the disposition and investment of the proceeds remaining in his hands until the termination of the life estate and the trusts.</p>

Appeal by the defendant, Perez M. Stewart, superintendent of buildings for the borough of Manhattan, 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 18th day of July, 1902, granting the petitioner’s application for a peremptory writ of mandamus requiring the defendant to reinstate him in the position of plumbing inspector in the bureau of buildings for the borough…

■ Appeal by the petitioner, Michael H. Leach, 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 July, 1902, denying the petitioner’s application for a peremptory writ of mandamus requiring the defendant to reinstate him in the position of assistant section foreman in the street cleaning department of the city of New York.

Appeal by the defendants, Stanislao Ciletti 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 9th day of June, 1902, granting the petitioners’ motion for ail adjudication declaring them to be lawfully elected trustees of The Laborers’ Society of Civility and Labor of Mutual Assistance of New York and declaring the election of the appellants null and void, and also from an…

Appeal by the petitioner, Alma Louise Lamer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1902, denying the petitioner’s motion for leave to discontinue the proceeding.

<p> Reinstatement of an officer removed from the New York police force—within what: time the proceeding therefor must he instituted — waiver of salary. </p> <p>Although, by the amendment to section 302 of the Greater New York charter, made by chapter 466 of the Laws of 1901, which took effect January 1, 1902, the time within which a member of the police force, who had been unlawfully dismissed therefrom, could maintain a proceeding to procure his reinstatement, was changed from two yearafo four months, the saving clause contained in, section 1614 of the amended charter operated to secure to a member of- the. police force who had .been unlawfully dismissed in June, 1901, four months, from January 1, 1902, within which to apply for his reinstatement.</p> <p>Where, however, the member in question did not apply for reinstatement until: February 7, 1902, the court required him, as a condition of his reinstatement, to waive his right to salary from the time that he was unlawfully removed to, the date of his application for reinstatement.</p>

Appeal by the plaintiff, James J. Davis, as trustee in bankruptcy' for Andrew L. Smith and Lawrence Ryan, bankrupts, from that portion of an interlocutory judgment of the Supreme Court in favor of the defendant Fidelity and Deposit Company of Maryland, entered in the office of the clerk of the county of New York on the 9th day of May, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, which sustained the said defendant’s demurrer to…

Appeal by the Herzog Teleseme Company of New York State from an order of the Supreme Court, made at the New York Special Term, bearing date the 27th day of May, 1902, and entered in the office of the clerk of the county of New York, granting a motion Tor a peremptory writ of mandamus.

Appeal by the relator, Anna Meyer, from that portion of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the- county of New York on the 11th day of August, 1902, which denied the relator’s motion for a peremptory writ of mandamus requiring the chamberlain of the city of New York to pay over to the said Anna Meyer the sum of $1,000, with interest.

Appeal by the relators, The New York Central and Hudson River Railroad 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 25th day of June, 1902, dismissing a writ of certiorari theretofore issued in the proceeding to review an assessment.

Motion by the plaintiff, Riverside Bank, for a new trial upon a case containing exceptions, ordered to be heard by the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by Alma Louise Earner 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 July, 1902, denying the appellant’s application to be made a party defendant to the action.

Appeal by the plaintiff, James Maguire, 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 June, 1902, opening the defendant’s default in an action for an absolute divorce.

<p>Appeal by the defendant, John James Herring Poillon, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of August, 1902, awarding the plaintiff alimony and counsel fees.</p>

<p>Appeal by the defendants, William A. Gamgnes, as surviving member of the firm of Levering & Gamgnes, and others, 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 6th day of November, 1901, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>The following is the contract, the subject of the action:</p> <p>“Agreement made and entered into this loth day of November in the year 1897 between the undersigned in consideration of the mutual covenants and agreements hereinafter set out and of the .sum of one dollar by each to the other in hand paid.</p> <p>“ I. Louis M. Jones, being the holder of three several mortgages upon and against the premises in the seventh paragraph of this .agreement more particularly specified, to wit: a mortgage for $75,000, a mortgage for $50,000, and a mortgage for $42,500, with accrued interest, upon which said mortgages two foreclosure suits have been begun, agrees, on his part, that he will continue and press said foreclosure actions to judgment and sale with all convenient speed, and that if' a sufficient sum is not bid upon said sale to pay the amount of the foreclosure judgment and interest and the costs-of such sale he will bid the property in and take title thereto and will immediately thereafter make, execute and deliver a good and. proper deed of -the same to Melvin G. Palliser individually upon the understanding and agreement that before the delivery of said deed a bond and mortgage shall have been negotiated upon the said premises when completed for the sum of $250,000, which sum, less-the expenses of procuring the same, shall be paid over and applied to pay off the liens upon’said property prior to those of said Jones, and then upon the judgments and mortgages of the said Jones, as. far as the same will go, and that he will, if necessary, as hereinafter set out, accept a second mortgage upon and against said premises, for the difference coming to him, payable on or before six months-after date, with interest.</p> <p>“II. Melvin G. Palliser, of Dobbs Ferry, New York, is hereby nominated and appointed by William M. Levering and William A.. Garrigues, composing the firm of Levering & Garrigues; Anna B. Lee and Edward P. Burwell, composing the firm of Lee & Burwell; The Electric Construction and Supply Company; The Springfield Elevator and Pump Company; Catherine Reilly and William McLaren, composing the firm of Reilly & McLaren; L. G. Kirk and F. T- Camp, architect, to act as their trustee in the reception from said Louis M. Jones of a deed of the premises hereinafter described, to take possession of the buildings erected and to see that the same are immediately pushed toward a completion and to procure permanent mortgages upon and against the same, to pay off the first, second, third and fourth mortgages thereon, to rent the said buildings and to collect the rents of the same, to contract for and to sell the same and to do any and all other act or acts in and about the premises necessary for our protection and for the completion of the buildings, and the renting, mortgaging and sale of the same. And the said Melvin G. Palliser agrees that he will act as-trustee, as aforesaid, and will exercise and use his best skill and diligence in the consummation of the same, and will execute a declaration of trust accordingly upon taking title as above.</p> <p>“ III. The firm of Lee & Burwell, above described, The Springfield Elevator and Pump Company, The Electric Construction and</p> <p>Supply Company, L. G. Kirk, Levering & Garrigues and Reilly & McLaren, agree on their part that immediately upon a default being made in the foreclosure suits of said Louis M. Jones they will enter into and upon the work of furnishing the materials heretofore contracted tobe furnished'to the said buildings by them respectively with Henry S. Wood, and that they will promptly and with all diligence continue their said contract and finish and complete the same in accordance with the plans and specifications and under the superintendence of the said F. T. Camp who is continued as architect for the same. It being understood that there shall be advanced to the saidL. G. Kirk to enable him to complete, the sum of $1,000, and to The Springfield Elevator and Pump Company alike sum of $1,000.</p> <p>11IV. Said Melvin G. Palliser is to negotiate a first permanent mortgage upon and against said building of $250,000 at or a larger sum if practicable, and if possible, is to negotiate a second mortgage upon and against the same of $40,000, and that out of the proceeds derived by him from said mortgages he is to pay off the taxes upon and against said property, the mortgage of the United States Trust Company of New York and all accrued interest, and the several mortgages of the said Louis M. Jones in their order of priority with the interest and cost of the foreclosure so far as the same may go and should it become impossible or impracticable to obtain a second mortgage of $40,000, then he is to execute a mortgage for the deficiency to the said Louis M. Jones, said deficiency covering any additional sums which the said Louis M. Jones may be obliged to advance to the said Palliser to carry out the terms, and intentions of this agreement. Should such second mortgage be obtained, then the proceeds thereof, after the payment of taxes and the first four mortgages and interest and costs, are to be divided fro rata in accordance with the amount of the liens of the respective creditors without reference to-the priority of liens.</p> <p>* “ VI. The undersigned creditors specified upon the schedule hereto annexed, hereby agree each for himself with each of the other creditors, parties to this agreement, that he will truly substantially perform and complete the work remaining unfinished upon the contract or contracts heretofore made with H. S. Wood or otherwise, and furnish all materials connected therewith and be out of the building on or before the day specified in said schedule: opposite each respective name. This provision being of the essence of this contract, it is further agreed that upon failure of any one of the contracting parties to finish and complete his work as aforesaid,, he shall thereupon forfeit all right, title and interest under .this agreement. •</p> <p>“ VII. The claims of the respective cestuis que trust named in this agreement, upon completion of their respective contracts, are ■hereby settled and adjusted at the following amounts, viz.:</p> <p>Names of Amount of Claim Time of completion</p> <p>Creditors. on completion. of contract.</p> <p>“ Levering & Garrigues.... ., $18,326 36 January 1, 1898</p> <p>“ Lee & Burwell.......... .. 20,515- 00 December 15, 1897</p> <p>“The Springfield Elevator &</p> <p>Pump Company.</p> <p>“ Reilly & McLaren....... 2,650 00 December 1, 1897</p> <p>“ L. G. Kirk..... .......'. 3,536 00 January 1, 1898</p> <p>“F. T. Camp............ 1,775 00 January 1, 1898</p> <p>■ “Louis M. Jones further agrees that the mason and plumbing work will be finished according to contract on or before the first day of January, 1898.</p> <p>■ “ VIII. The property covered by this agreement is bounded and described as follows, to wit: Beginning at a ¡joint on the southerly side of Bleecker Street distant one hundred and fifty feet easterly from the easterly side of Wooster Street, and running thence southerly and parallel with Wooster Street one hundred feet; thence westerly and parallel with Bleecker Street seventy-five feet; thence •northerly and parallel with Wooster Street one hundred feet to the southerly side of Bleecker street, and thence easterly along the southerly side of Bleecker Street seventy-five feet to the point or place of beginning, be the said several dimensions and distances more or less; subject to party walls, if any. Said premises lying in Section 2, Block number 524 on the Land Map of' the City of New •York: Being the same premises which were conveyed to the said ■Henry S: Wood by the said Louis M. Jones and wife by deed delivered and recorded.</p> <p>“ IX. Lee & Bufwell further agree with each of the undersigned that they will commence work to complete their contract on said building on the 16th day of November, 1897, and. will deliver to the trustee the material already on hand to complete said work.</p> <p>“ X. The trustee is authorized to sell said premises for the best price obtainable, but not for a sum which shall be less than sufficient to pay the claims of the creditors, parties to this agreement, in full. In the event of a sale for a larger sum than as above specified the trustee shall pay as counsel fees to Kurzman & Frankenheimer $2,000, to Stedman & Larkin $2,000, to Hector M. Hitchings $2,000 and to Melvin G. Palliser $1,500 in full of all claims for commissions as trustee; any balance shall be divided fro recta among the.creditors, parties to this agreement, as profits.</p> <p>“ XI. Each of the parties to this agreement having mortgages, liens, conditional bills of sale, or special contracts in reference to the work on this' building, hereby waives any such special provisions and liens and rely for their security upon the provisions of this agreement so long as the agreement is operative and binding.</p> <p>“ In witness whereof we have hereunto set our respective names and seals this fifteenth day of November, 1897.</p> <p>“ This contract becomes binding and operative only upon- the execution of this contract by each of the parties thereto ”</p>

<p>Negligence —boy killed by falling from a sea wall in process of construction by a city contractor — duty of the municipality—contributory negligence.</p> <p>In an action brought against the city of New York to recover damages resulting from the death of the plaintiS’s intestate, it appeared that the city had entered into a contract for the construction of an extension of East River Park and for ■ the erection of a sea wall along the easterly front of such extension; that at the time the accident happened the work was in an uncompleted state, the surface of the extension not having been graded to the level of the top of the sea wall, and only a portion of the iron railing which was intended to guard the sea wall having been placed in position. Barricades separated the extension from the completed portions of the park and notices were placed at each entrance to the extension notifying the public that no trespassing would be allowed thereon. Watchmen employed by the contractor excluded, so far as they were able, all persons from the extension, but there was testimony tending to show that children from time to time played on the extension.</p> <p>It further appeared that on the day of the accident the deceased, an intelligent boy, nearly twelve years of age, was playing with other boys on the unfinished ■ extension, and that, while standing near that portion of the sea wall which was not guarded by a railing, he began to throw stones from a sling into the river; that, while standing about two feet from the wall, he made an effort to throw a stone, when the'sling slipped from his hand; that he jumped forward to grab the cord and either tripped over a water pipe which had been laid on the inside of the wall or stumbled on the wall and fell over the same, striking upon some rocks below and receiving injuries from which he died. The day was bright and sunny and the deceased was in full possession of his faculties, had good eyesight, and was familiar with the place and had been directed by his father to keep away from the sea wall.</p> <p>Held, that the deceased was a mere trespasser or, at the most, a licensee in being upon the premises;</p> <p>That it could not be said that the city had extended an implied invitation to the deceased to go upon the premises; that, consequently, as the dangers of the situation were open, apparent and visible, and the city had not been guilty of any wanton act from which the injuries resulted, it was not liable therefor;</p> <p>That the city would not be liable even if it should be assumed that it had extended an implied invitation to the deceased to go upon the premises, as it had taken all the precautions to protect the place that a reasonably prudent person could be called upon to exercise;</p> <p>That the deceased, who was concededly sui juris, had, as a matter of law, been guilty of contributory negligence.</p>

<p> Negligence—a charge that the degree of eme required was such “asa hog of his age and of good intelligence would exercise under the circumstances and deem adequate thereto ” is erroneous. </p> <p>In an action brought to recover damages for the negligent killing of a boy, a charge that “It was the duty of this boy to exercise such care and prudence to avoid an accident as a boy of his age and of good intelligence would exercise under the circumstances and deem adequate thereto,” constitutes error, as the degree of care imposed upon the deceased was such as a reasonably prudent person, of the .same age, would have exercised under the same or similar circumstances, and the charge, as made, substituted for such care a mental process on the part of the deceased in reaching a conclusion as to what he deemed to be adequate care.</p>

<p>Appeal by the defendant, Charles G. Conn, 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 24th day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling a demurrer to a portion of. the reply to the third defense contained in the answer.</p>

Appeal by the plaintiff, Harriet Haddock, 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 August, 1901, denying the plaintiff’s motion for counsel fees and alimony pending an appeal taken by the defendant from a judgment of separation theretofore entered in the action.

<p>Appeal by the Empire City Fire Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of September, 1902, granting a peremptory writ of mandamus commanding the officers and directors of the Empire City Fire Insurance Company to exhibit to the petitioner the by-laws of said company, or a copy of the same, and of such resolutions of the company as. have the force and effect of by-laws, or to permit the petitioner or his attorney to take extracts or copies therefrom between certain hours on a business day.</p>

Certiorari issued out' of the Supreme Court and attested on the 18th day of August, 1902, directed to William E. Stillings, chairman, Charles A. Jackson and Oscar S. Bailey, as commissioners appointed under the provisions of chapter 537 of the Laws, of 1893, and the acts amendatory thereof, requiring them to certify and return to the office of the clerk of the county of New York all and singular the proceedings had by them in relation to the claims of Charles Van Riper and…

<p>Agreement between trustees and a surety upon their bond as' to the withdrawal of deposits from bank — the court may order the withdrawal without the surety's consent—the Surrogates Court may do so.</p> <p>In the absence of evidence to the contrary, it will be assumed that an agreement made, pursuant to section 813 of the Code of Civil Procedure, between trustees under a will and the surety on their bond, by which the trust funds were to he deposited with a certain trust company and were to be withdrawn only upon the check of the trustees countersigned by the surety company, contained, in conformity with such section of the Code, a provision authorizing the trust funds to he withdrawn without the consent of the surety upon the-order of the court, and if it appears that the agreement does not contain such a provision it will he read into it- by the court.</p> <p>The surrogate has jurisdiction, under subdivision 6 of section 3347 of the Code of Civil Procedure, to make orders for the payment of trust funds deposited pursuant to such an agreement.</p>

<p>Appeal by the Kossuth-Marx Jewelry Company, Limited, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of September, 1902, denying its motion to set aside an order made on the 4th day of August, 1902, requiring the appellant to appear and be examined concerning its property and enjoining said company from transferring or interfering with its property not exempt from execution, until the further order of the court.</p>

Appeal by thé plaintiffs, Stephen J. Geoghegan and others, suing on behalf of themselves and of all other creditors of the Harlem Casino 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 30th day of July, 1902, granting a motion made by the defendant Luchow for the dismissal of the complaint as to him, with ten dollars costs, unless the plaintiffs within thirty days should…

Appeal by the defendant, John Joseph Brennan, 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 January, 1902, upon the verdict of a jury for $3,588, and also from an order entered in said clerk’s office on the 24th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, David Maibrunn and another, 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 5th day of May, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, setting' aside a deed of real estate as fraudulent against creditors.

Appeal by the plaintiff, Margaret C. Holt, 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 10th day of February, 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 defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of February, 1902, upon the verdict of a jury for §15,000, and also from an order entered in said clerk’s office on the 26th day. of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p> Dismissal on the opening —failure to print the opening in the record. </p> <p>The dismissal upon the opening of the plaintiff’s counsel of a complaint which, alleges a good cause of action cannot he sustained where the opening is not-a part of the record on appeal.</p> <p>Note.— The rest of the cases of this term will he found in the next volume, 76 App. Div.— [Rep.</p>