Volume 75 — New York State Reporter

Action by Richard M. Bent, as assignee of George 0. Gregg, -etc., against Frank Glaenzer and others, on a judgment of a justice of the peace in the state of Ohio. Judgment was rendered in favor of plaintiff for $212.81, with interest and costs, and defendants appeal.

<p>Appeal from Fifth district court.</p> <p>Action by Soloman Simon against William Wood to recover the agreed price of merchandise sold and delivered by plaintiff’.® assignor to defendant. Judgment was rendered in favor of plaintiff for part of the sum demanded, and plaintiff appeals. Reversed.</p>

Action by James Heffern against Garret Hunt to recover damages for personal injuries. From an order granting leave to plaintiff to issue a supplemental summons on one John E„ Little, to make Mm a co-defendant, and serve a supplemental complaint on Garret Hunt, defendant appeals.

<p>Motion for reargument. For decision on appeal, see 39 N. Y. Supp. 1095.</p>

<p>Replevin—Who liable—Mortgagees.</p> <p>A mortgagee of chattels to which the mortgagor had no title is liable to the real owner where he sells the chattels under the mortgage and delivers them to the purchaser after notice of the owner’s claim, and it is no defense that he parted with the possession or control of the chattels before the action against him was commenced. Putnam; J., dissenting, on the ground that plaintiff failed to show title.</p>

The action was brought to cancel a contract made between plaintiff and defendant, by which plaintiff bought a livery stable from defendant, and to set aside and cancel two leases,, a certain chattel mortgage, and to compel defendant to reassign a certain bond, and to reconvey certain premises, situated in the city of Brooklyn, all of which plaintiff claims, to have paid for said livery stable.

<p>Appeal from special term, Rensselaer county,.</p> <p>Action by James McIntyre against the Journal Company for libel. From an interlocutory judgment overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, defendant appeals.</p> <p>■ The complaint alleged that plaintiff for several years had been the superintendent of the Albany County Penitentiary, the convicts in which were hired out under contracts made by plaintiff, as such superintendent, for the benefit of the county; and that plaintiff received the money under such contracts, and was required by law to deposit with the treasurer of the county the balance remaining after paying certain expenses. The complaint also set out the alleged libelous article, ivhich, after stating resolutions of the penitentiary commissioners directing a transfer to the credit of the county of $70,000 from the earnings of the penitentiary, was as follows:</p> <p>“For years the Journal has contended that the Albany Penitentiary was a gold mine that furnished the sinews of war and the corruption fund which the local Democracy hsu used to debauch the electors of this toivn. This explains why they fought so desperately to retain James McIntyre in office, for the removal of their creature from the superintendency of the institution means that they will be deprived of the means which caused them to buy so many elections. They are so desperate over this prospect that the public would not be surprised if they should resort to other measures to prolong their hold on the penitentiary. Before this, they have used the power of the court for iniquitous purposes, and it would not be strange if they should do it again. The figures contained in the above resolution are highly significant, and the question naturally arises, how does it come to pass that the penitentiary commissioners are able, in the spring of 1895, to turn over $70,000, when, in 1894, only a surplus of $27,000 was reported? Has the surplus ever before exceeded $30,000? In view of existing conditions, these inquiries are pertiment, and may lead to an examination which will show conclusively why the desperate ringsters are so unwilling to give up their hold on this building. The Journal has contended time and again that there was juggling with the accounts of the prison. This seems to be indicated in the reports of the years 1875 and 1894. In these two years the number of prisoners in the penitentiary was the same. Yet in 1875, when high prices were the rule, it cost only $75,000 to maintain the prisoners, and $28,000 was turned in to the county. In 1894, with prices down to bed rock, it cost $100,000 to maintain the same number of prisoners, and only a surplus of $27,000 was reported. These figures indicate that somebody was making a good thing out of the penitentiary, and it was not the tax payers of Albany county either. It is generally believed that Superintendent McIntyre is a rich man, though, when he went into office he was not burdened with an over-supply of this world’s goods. Did he make this money out of his salary? If he made it out of the proceeds of the work of prisoners, he has done an illegal thing. The fact is, the whole prison system is rotten to the core, and to prevent shameful revelations, and at the same time retain hold of the means that has provided a great corruption fund, there is reason to believe that the ringsters will make a further fight.” 3 ....</p>

<p>Appeal from circuit court, Rensselaer county</p> <p>Action by William Lord, as executor of the will of Martha A. Cronin, deceased, against John H. Cronin, From a judgment dismissing the complaint in pursuance of a verdict directed by the court in favor of defendant, plaintiff appeals.</p> <p>The action was to recover $8,000 alleged to have been loaned by Martha A. Cronin, deceased, to the defendant, her husband, May 2, 1892, upon defendant’s promise to repay the same with interest upon demand. The plaintiff proved that the wife loaned her husband the $8,000, and thereupon the defendant executed and delivered to her the following in-strument, and thereafter, and before the commencement of this action, the wife died. The plaintiff is her executor.</p> <p>“This agreement, made this second day of May, in the year of our Lord one thousand eight hundred and ninety-two, between John H. Cronin and Martha A. Cronin, of the city of Troy, county of Rensselaer, and state of New York, witnesseth: That in consideration that my wife, Martha A. Cronin, has this day mortgaged certain premises of hers situated upon the northwest corner of Fulton and Mechanic streets, in said city of Troy, to Samuel P. McClellan, as executor of the will of Jane Calkins, deceased, for the sum of eight thous- and dollars, at my request, and has loaned to me said sum so borrowed as aforesaid, now, in consideration thereof, I, John H. Cronin, husband of the said Martha A. Cronin, do hereby covenant and agree that if it shall occur to me to die before the decease of the said Martha A. Cronin, the said sum of eight thousand dollars so procured as aforesaid shall be a charge upon my estate, and shall be paid as a debt owing by me, I having become a party to the bond given upon such borrowing; and I further agree that in such case my executor or administrator or personal representatives shall convey to the said Martha A. Cronin, surviving me, all my one-half interest in the premises known by street numbers one hundred and seven Fourth street, and two thousand two hundred and sixty Fifth avenue, in the city of Troy, to have and to hold unto the said Martha A. Cronin, her heirs and assigns, forever. But if the said Martha A. Cronin shall not survive me, then this agreement shall be of no effect,</p> <p>“In witness whereof, I, the said John H. Cronin, have hereunto set my hand and seal in duplicate this second day of May, 1892,</p> <p>“J. H. Cronin. [L. S.]”</p>

Action by Dewit A. Hayes against Simeon S. Gross - There was judgment in favor of plaintiff, and defendant appeals. The action was to recover for labor performed and materials furnished by the plaintiff in the erection of an hotel building under a contract with the defendant, the owner thereof, Avhich building, after the plaintiff had nearly performed his contract, was destroyed by fire; also, for extra work done by the plaintiff thereon at the defendant’s request.

Action by Frederick Schuster against August Ganzenmuller for broker’s commissions. A judgment in favor of plaintiff was affirmed by the city court (40 N. Y, Supp. 1123),, and defendant appeals.

Action by William Fernchild against the D. G. Yuengling Brewing Company to recover a debt alleged to be due plain - tilf from D. G. Yuengling, Jr., Brewing Company. A judgment in favor of defendant was affirmed by the city court (38 N. Y. Supp. 119), and plaintiff appeals. Reversed. Argued before DALY,P. J., and McADAM and BISCITOFF, JJ.

Action by Annie Lowenthal against Harris M. Copland on two promissory notes. A judgment in favor of plaintiff for tlie amount of the notes and interest was affirmed by the city court (40 N. Y. Supp. 379), and defendant appeals.

Action by the Lincoln National Bank of the City of New York against Hartford B. Kirk, Henry F. Moore, and John P. Beecker on a promissory note made for the accommodation of one of the makers, and discounted at his request. A judgment in favor of plaintiff was affirmed by the city court (39 N. Y. Supp. 1127), and defendants, Kirk, Moore, and Beecker, appeal.

A upeal from special term, Kings county. Action by Ella L. O’Brien and another against Bertha E. Whigam and another. There was a judgment in favor of plaintiffs, and defendents appeal.

Action by William O. Platt and another, as trustees, against the New York & Sea Beach Bailway Company and Sophia M. Onderdonk, to foreclose a mortgage. From an ozxlez- denying the petitiozz of August Meidlizzg, Jr., a judgznezit creditor of defendazzt railway cozzipazzy, to vacate an order appoñiting a receivez-, azzd also a judgment ezzteredin the actiozz, or to znodify the sazne, petitioner appeals.

Action by Dwight H. Olmstead, as trustee, against Frederick B. Latimer, Brainard G. Latimer, and Henry A. Latimer, to foreclose a mortgage on property in the city of Brooklyn, executed by John Gr. Latimer, deceased, and to charge defendants, as heirs at law of the mortgagor, for any deficiency which might arise on the sale to the extent of the value of the real estate of the mortgagor which descended to them.

Action by Ernst Neüdoerffer against the Brooklyn Heights Bailroad Company for personal injuries resulting from the collision between one of the defendant’s cars and plaintiff’s wagon, alleged to have been caused by the negligence of defendant. From a judgment entered on a verdict in favor of plaintiff for $3,000, together with $293.97 costs and from an order denying a motion for a new trial, defendant appeals.

<p>Master and servant—Unsafe appliance.</p> <p>A temporary apparatus for hoisting, while the-elevator was out of- order, devised by defendant’s shipping clerk, with the assistance of plaintitf and other subordinate employes, is an appliance by means of which the employes performed their labor; and defendant is liable for injuries to an employe caused by its insufficiency.</p>

Action by John P. Handshaw against John S. Arthur to ^recover damages for an alleged trespass on the part of defendant, as justice of the peace, in issuing an execution under which plaintiff’s property was sold. There was a. judgment in favor of plaintiff, and defendant appeals.

Action by Jacobina Fleck and others against Carolina Rau and others for partition. There was a judgment in favor of defendant Carolina Rau, and plaintiffs appeal.

Action by Michael Foley against the Brooklyn Gaslight Company to recover damages for personal injuries sustained by plaintiff while employed by defendant to assist in unloading a ship. The action was brought in the city court of Brooklyn and being still pending on January 1, 1896, was transferred to the supreme court by the constitution of 1895.

Action by Edward Freel against the county of Queens to recover for work done by plaintiff for defendant. There was a judgment in favor of plaintiff, and defendant appeals.

Actions by Joshua R. Jones against Home Furnishing Company. Judgment rendered by a justice of the peace in each case in favor of plaintiff was affirmed by the county court, and defendant appeals.

Action by John Gray against the Kaufman Dairy & Ice-Cream Company to recover two months’ rent of premises in New York City. A judgment was entered ona verdict rendered under the direction of the court in favor of plaintiff, and defendants appeal.

Action by Gafrit Furman and Julia Furman against William Furman and others for partition. From an order vacating and annulling a judgment and discontinuing the action, Minnie W« Furman and Mirabeau L. Towns appeal.

<p>1. Negligence—Defective Electric Wire—Bes Ipsa Loquitur.</p> <p>Where a horse, on stepping on the rail of defendant’s electric car line, received a fatal shock, the mere happening of the accident is enough to raise a presumption of negligence on the part of defendant.</p> <p>2. Same—When Maxim Applies.</p> <p>The maxim of'res ipsa loquitur relates merely to negligence prima facie, and is available without excluding all other possibilities.</p>

Application by Robert. Grummey for a writ of mandamus to -compel George W. Palmer, comptroller of the city of Brooklyn, to restore relator to the position of assistant warrant clerk in the comptroller’s office.

<p>Appeal from special term, Kings county.</p> <p>Action by Edward H. Moubray against Bichard Dieckman and another for specific performance of a contract entered into between plaintiff and defendant Eunston for the exchange of real estate in the city of Brooklyn, the record and titte to which was in defendant Dieckman. From an interlocutory judgment overruling defendant Dieckman’s demurrer, said defendant appeals,</p>

Action by the Manhattan Rubber Shoe Company against the Chicago, Burlington & Quincy Railroad Company to recover damages for the alleged nondelivery of goods shipped by plaintiff over defendant’s railroad. From a judgment entered on the verdict in favor of defendant, and from an order denying the motion for a new trial made on the minutes of the court, plaintiff appeals.

<p>Appeal from trial term, Queens county.</p> <p>Action by John Mannion against Hugh Hagan and Patrick Daly for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial, defendants appeal.</p>

<p>1. Highways—Title to fee—Dutch boads in New York.</p> <p>The ownership oí the fee of roads established during the Dutch occupancy of New York is governed by the Dutch law, which vests it in the public. Dtinham v. Williams, 37 N. Y. 251, followed.</p> <p>2. Stabe decisis—Rule of pbofebty.</p> <p>The decision in Dunham v. Williams, 37 N. Y. 251, that the title to the fee of the Brooklyn & Jamaica Road was in the city of Brooklyn, on the faith of which title to parts of the highway it was acquired by individuals, is a rule of property.</p> <p>8. Title to highways—Conflict of laws—Confirmation of dutch</p> <p>GRANTS.</p> <p>The guaranty given by the English authorities to the occupants on the surrender of New York by the Dutch, that the occupants should peaceably enjoy their possessions, merely confirmed the rights which they had under the Dutch law, and therefore did not affect the rule that a grantee from the Dutch government of land abutting on a highway acquired no title to any part of the highway. *</p>

<p>Contributory negligence—Question for jury.</p> <p>Contributory negligence is a question for the jury, •where it appears tha* plain1 iff, a newsboy about eleven years old, while standing on the foot-board of a street car, selling newspapers to the passengers, was knocked off by defendant’s wagon. Connolly v. Ice Co„ 114 N. Y. 104, followed.</p>

Action by Leopold Meyer against the Brooklyn Heights Railroad Company for personal injuries, caused by a collision between defendant’s street car and plaintiff’s buggy. From a judgment for $920.54, damages and costs, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.

<p>1. Damages—Evidence—Cause and effect. '</p> <p>A finding that the death of plaintiff’s horse was caused by a collision with defendant’s street car is not sustained by the evidence, where it appears that the horse, which was thrown down by the force of the collision, immediately got up, was again attached to the wagon, and driven off, without showing any appearance of injury, and that he was after-wards afflicted with sore throat, and died three weeks after the accident; there being no evidence of any connection between the sore throat and the accident.</p> <p>3. Appeal—Modification of judgment.</p> <p>Where a recovery, in an action for injuries to the person and to property, is had as to both causes of action, as to one of which plaintiff was not entitled to recover, the appellate court may modify the judgment by deducting the erroneous item.</p>

Action by Henry M. Kaiser against Frederick B. Latimer to re cover damages for injuries to plaintiff’s goods while in defendant’s warehouse. Judgment entered on a verdict for $700 in favor of plaintiff, and from an order denying a motion for a new trial defendant appeals.

Action by Mary 0. Stapleton against the city of Newburgh to recover damages for personal injuries to plaintiff, who slipped on a sidewalk in defendant city, and broke her leg. From a judgment entered on a verdict for $1,100 in favor of plaintiff, and from an order denying the motion for a new trial, made on the minutes of the court, defendant appeals.

Action by Antonio Latorre, as administrator of John Latorre, deceased, against the Central Stamping Company, to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff for $1,250, and from an order denying a motion for a new trial, defendant appeals.

Action by Richard Sandford against Carman Frost to obtain an adjucation that defendant held the land described in the complaint as trustee for a partnership between plaintiff and defendant, and that plaintiff be declared to have a one-third interest in the land, and that defendant be enjoined from selling, conveying, or transferring the title without plaintiff’s consent, and that defendant execute a declaration of trust as to plaintiff’s one-third interest.

Action by William N. Howell against John Oappelli. From a .judgment of the county court affirming a judgment of a justice in favor of plaintiff, defendant appeals. Upon the return of the summons, the parties appeared in the justice’s court, the plaintiff in person, the defendant. by his attorney. Issue was joined, and the case adjourned, upon motion of the defendant, until February 9, 1895, at 2 p. m. The return recites : “ Feb. 8. 3:00 p. m. Case called.

Action by Frederick Rnnscht against Sarah Ann Wright to restrain defendant from closing or obstructing a certain road or right of way, on which plaintiff’s land was bounded. There was a judgment in favor of plaintiff* and defendant appeals.

Action from Robert Wallace against George B. Payne, individually and as executor of the will of Eliza Ann Williams, deceased, impleaded with another, to declare a will void. The complaint was dismissed, and plaintiff appeals.

Action by John R. Qninn against Michael O’Keeffe for personal injuries. From’a judgment entered on a verdict for $8,000 in. favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by the village of Hempstead against the Ball Electric Light Company to compel defendant to remove its poles, wires, and elecftric lamps from plaintiff’s streets. There was a judgment in favor of plaintiff, and defendant appeals.

Action by Julia A. Yan Da Linda against Augustus P. Stevens to dissolve a partnership, and for an accounting. From an interlocutory judgment in favor of plaintiff, defendant appeals.

Action by Andrew F. Stourbridge, as administrator of John P. Stourbridge, deceased, against the Brooklyn City Railroad Company, to recover damages for alleged negligence causing the death of plaintiff’s intestate. From a judgment dismissing the complaint on the merits at the end of defendant’s case, and from an order •denying a motion to set aside the direction dismissing the complaint, plaintiff appeals.

Action by David Gibbs and William H. Gibbs against Mary Louisa Prindle. Defendant was adjudged guilty of contempt of court, appeals.

Lawrence county, Ejectment by Lyman Rhoades and others against Nelson Eh Freeman and another. The complaint was dismissed, and plaintiffs appeal. Reversed as to plaintiff Martha E. Weed. Affirmed is to the other plaintiffs.

Action by Robert A. Wright against Matthew R. Gregory for libel. From a judgment entered on a verdict in favor of plaintiff for $600, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from Ulster county court.</p> <p>Action by Harriet Stoutenburg against Egbert Humphrey. From a judgment of the county court affirming a judgment of the justice of the peace rendered in favor of plaintiff, defendant appeals.</p>

Action by Martin W. Watts against the board of education of Union free school district No. 20, of the town of Hempstead, and others, to foreclose a mechanic’s lien. From a judgment in favor of plaintiff and defendants Cross, Austin & Ireland Lumber Company, Challes Cornell, and the Brooklyn Metal-Ceiling Company, defendant the board of education appeals.

Action by Jane Wells against the city of Brooklyn for personal injuries. From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial (38 N> Y. Supp. 309), plaintiff appeals.

<p>1. Contracts—Interpketion.</p> <p>An agreement between attorney and client that the attorney would conduct certain litigation in consideration of a share of the recovery, and that he would “pay all court costs, including attorney and counsel fee,” binds tiie attorney to indemnify the client against any costs that he might become liable for.</p> <p>2. Maintenance—Agreement to Pat Costs.</p> <p>A contract by which an attorney agreed to conduct litigation for a share of the recovery and to pay all costs is valid.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by John L. Bickford against John E. Searles and others-for an accounting. The was a judgment in favor of plaintiff for part of the relief asked for, and plaintiff and defendant Searles. appeal.</p>

<p>Negligence—Question bob juby.</p> <p>Variation in the testimony, in an action for negligence, as to distances, circumstances, and detail are not sufficient to withhold the case from the-jury.</p>

Application by J. Carlton Ward for mandamus to compel his reinstatement as a member of the Up-Town Association, The writ was denied, and relator appeals.

<p>Brokers—Right to Commissions.</p> <p>Where an order for goods given by a broker was accepted by the s-ller on the belief that the broker was purchasing for himself, the seller mav, on learning the facts, imposeas a condition of filling the order, that tlx- sale shall be approved by a third person, and the broker cannot recover commissions on such sale unless such condition is performed.</p>

<p>1. Attorney and client—Legal services—Compensation.</p> <p>Services rendered by an attorney in pror.uring for a railroad company the right to lay its tracks along a highway, though not involving any legal question, is nevertheless, within the line of professional employment, which must be compensated accordingly.</p> <p>2. Services—Value—Admission by rendering bill. |</p> <p>An attorney who renders a bill for services at a certain rate per year is not thereby precluded from afterwards claiming a greater amount, where he was negotiating for a yearly retainer at the time the bill was rendered,' but afterwards withdrew bis proposal, stating that he would render services on basis of a quantum meruit.</p>

<p>Motion for a reargument.</p>

Application by George Comatus for a write of mandamus to compel Theodore B. Willis, as commissioner of the city of Brooklyn, and N. I Flocken, as superintendent of streets, to remove certain obstructions from a sidewalk. A peremptory writ was granted, and defendants appeal.

<p>Appeal from, term, Westchester county.</p> <p>Action by William J. Nieklas against George Keller for specific performance. There was a judgment in favor of plaintiff, and defendant appeals. 1</p>

Action by George M. Fiske and William Homes against Frank E. Smith and Flora Sawyer. From an order denying a motion to vacate an order for the examination of the defendants before trial, defendants appeal.

<p>Appeal from special term, Kings county.</p> <p>Proceeding by Everett Greene to review the determination of the board of elections of the city of Brooklyn. From an order that the certificate of nomination of the complaint was in all respects a valid party certificate of nomination, and that the name “National Democratic Party ” infringes on the name “ Democratic Party,” both parties appeal.</p>

<p>Appeal from special term, Erie county.</p> <p>Application by John L. Phillips for mandamus to Thomas H Sutherland and others, as the board of inspectors of the village of Castile, to recanvass votes. From an order adjudging defendants in contempt, and imposing a fine of $10, defendants appeal.</p>

<p>1. Sale—Implied wabbanty—Quality of goods.</p> <p>A warranty that goods are merchantable is implied where the contract of sale, made at the residence of the buyer, to which the goods were to be-shipped from another part of the state, was merely a memorandum that ho bought goods of a certain description, and at a certain price “f.o.b. cars."</p> <p>2. Same—Acceptance oe goods.</p> <p>The removal of a wagon load of goods from a car by the buyer’s servants, who thereby discover that the goods are infei'ior, and so inform the buyer, who inspects the shipment, and immediately notifies the seller of his rejection of it, is not an acceptance by the buyer.</p>

<p>Appeal—Review—Inferences prom Documents.</p> <p>The appellate division of the supreme court will not reverse the decision •of a trial court board on inferences from written documents, unless it affirmatively appears that the court erred in the decision.</p>

<p>Appeal from trial term.</p> <p>Action by Simon E. Rose against George W. Chadwick and another. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Brie county court.</p> <p>Action by Caroline Eyring against the Hercules Land Company, impleaded. From an order vacating a judgment of foreclosure, plaintiff appeals.</p>

<p>Appeal from circuit court.</p> <p>Action by Martha A. Sinclair against Harrison Fuller, impleaded. From a judgment for plaintiff, defendant Fuller appeals.</p>

<p>Mortgages—Lien—Inverse order op alienation.</p> <p>The rule that land will be subjected to a mortgage in the inverse order of alienation does not apply where a purchaser retained the amount of the mortgage from the purchase money, and took his deed subject by its terms to the mortgage.</p>

<p>Exemptions—Supplementary proceedings.</p> <p>Moneys due from customers to a person engaged in retailing ice, in which business he employs two ice carts and several men, are not “personal earnings” (Code Civ, Proc. § 2463), so as to be exempt in supplementary proceedings.</p>

<p>Landlord and tenant—Rent—Occupation by lessor.</p> <p>A claim by a lessee against the lessor for retaining possesion of part of the demised premises may be set oif against the rent.</p>

<p>Appeal from special term, New York County.</p> <p>Action by Franklin G. Thomas against Dora M. Thomas as executrix. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Indemnity Bond—Construction.</p> <p>A bond was conditioned to indemnify plaintiff against losses on sales during a certain period by reason of the insolvency by legal process of any buyer to whom goods should have been “sold and delivered during the period of the bond. * * * or by reason of any judgment or decree of court obtained for goods so delivered within the said period of the bond upon which execution should have been returned unsatisfied.” Held, that the indemnity did not cover losses on sales, made during the specified period, where judgment for the price was not recovered until afterwards.</p>

Actions by Emma J. Betts against Hiram W. Betts to foreclose two mortgages. From an interlocutory judgment in each case in favor of plaintiff, defendant, Hiram W. Betts, appeals.

<p>Appeal—Practice—Filing case.</p> <p>On appellant’s failure to have the case ordered on file within 10 days-after it has been settled, as required by Gen. Frac. Buies No. 35, under penalty of the case being deemed abandoned, the case cannot be ordered filed until his default has been set aside.</p>

Action by the Buffalo Loan, Trust & Safe-Deposit Company, as administrator with the will annexed of Dorothea Leonard, deceased, against John Leonard’and another. There was a judgment in favor of plaintiff, and defendant Leonard appeals. This action as originally brought was by plaintiff against John Leonard as sole defendant.

Action by James V. Bigelow and another against Harry A. Goble and others to recover the value of certain chattels which defendants purchased at a sale under an execution against George W. Teeter, and to the possession of which plaintiffs claimed to have been entitled under a chattel mortgage executed by said George W. Teeter and Delphine Teeter, bis wife.

Action by William. Matthews, as executor of the last will and testament of Caroline Silvernail, deceased, against the American Central Insurance Company on a fire insurance policy. A verdict was directed in favor of plaintiff, and defendant moves for a new trial on exceptions ordered to be heard in the appellate division in the first instance. Granted.

<p>1. Statute of frauds—Promise to answer for debt of another.</p> <p>A verbal statement by defendant that he was willing to help financially, to a specified extent, his brother, who was negotiating a compromise with his creditors, in reliance on which the creditors signed a compromise agreement, is a promise to answer for another’s debt.</p> <p>3. Same—Independent contract.</p> <p>The mere fact that a corporation, of which defendant was an officer, and to which defendant’s brother was indebted, obtained payment after the compromise, is not such a benefit to defendant as to make, his promise an independent contract.</p>

<p>Executors and administrators—Inventory—Discretion oe surrogate.</p> <p>Code Civ. Proc. § 2514, subd. 11, providing that, where a person interested in an estate applies for an inventory, an allegation of his interest, duly verified, suffices, though his interest is disputed, does not make the granting of" such petition compulsory merely because it is verified, but the surrogate may first pass on the question of petitioner's interest.</p>

<p>1. Contracts—Interpretation—Satisfactory service.</p> <p>A provision, in a contract to write newspaper articles, that the service shall be satisfactory to the employer, does not authorize the employer to terminate the contract, unless his dissatisfaction is genuine.</p> <p>2. Same—Evidence of master’s dissatisfaction.</p> <p>. It is a question for the jury whether plaintiff’s services as a writer of newspaper articles were unsatisfactory to defendant corporation, so as to entitle it to terminate the contract of employment, where there is evidence that defendant accepted his‘service for a considerable time without complaint, and only after a change in its management notified plaintiff of the termination of the contract, in a letter which was apologetic, and stated that the death of its former manager necessiated changes in the work on the paper, though defendant’s editor testified that at a meeting of defendant’s trustees they determined, after considering the value of plaintiff’s services, to dispense with them as unsatisfactory.</p>

<p>1. Guaranty—Construction.</p> <p>A guaranty of “ payment for all bills for coal shipped ” to a certain person -‘to the amount of $1,500 per month,” with further provision that “ the undertaking * * * is that at no time shall there be standing more than three months’ shipment of coal,” is not limited to shipments for three months, but merely to an amount not exceeding at any time $4,500.</p> <p>2. Same—Belease of guarantor—Extending time of payment.</p> <p>A negotiable note for the price of goods, taken from buyer at the expiration of the term of credit without the assent of the guarantor, is an extension of the time of payment, and releases the guarantor.</p>

Certiorari on the relation of Ashbel P. Fitch, comptroller of the city of New York, to review the proceedings of Daniel Lord and others, commissioners, appointed under Laws 1893, c. 537, and Laws 1894, c. 567, awarding damages to the claimant, Rachel Purdy, sustained through injury to her real property, caused by the change of grade of the railroad track» of the New York & Harlem Railroad Company in the annexed district.

Action by Charles J. Cohen against the Berlin & Jones Envelope Company to recover damages for breach of contract. Held: previous to the signing of this document, shall be exempt from the provisions of this contract. Such orders and contract on regular goods are not to exceed one million envelopes; and a list of the same to be sent to the parties of the second part.

Application by Avery D. Andrews, treasurer of the board of police commissioners, for a writ of mandamus against Ashbel P. Fitch, as comptroller of the city of New York. From an order granting the writ, defendant appeals.

Action by Josephine E. Egan, by Luke A. Lockwood, her .guardian ad litem, against the health department of the city of New York, for an injuction. From an order denying a temporary injunction, plaintiff appeals.

Action by Serena Toch against Henry M. Toch and others for .partition. From an order granting an extra allowance after a dismissal of the complaint at a trial term, plaintiff appeals.

Action by the mayor, aldermen, and commonalty of the city of New York against Ashbel P. Fitch, comptroller of the city of New York, and others, for an injunction. From an order continuing an injunction pendente lite, defendant People’s Traction Company appeals.

<p>Costs—Discontinuance—Discretion.</p> <p>The court, in an action at law, may, in its discretion, permit plaintiff to discontinue, on payment of $10 costs, instead of the amount of costs which would have been taxable for the proceedings had up to that time if defendant had recovered judgment; Code Civ. Proc. § 3229, only fixing a party’s right to costs on “ final judgment.”</p>

Action by Charles Tranlda and others against Andrew McLean for deceit. There was a judgment in favor of plaintiffs, .and defendant appeals.

Action by Snow, Church & Co. against William Reichman for commissions on accounts given to plaintiffs by defendant for collection. There was a judgment in favor of plaintiffs for $444.66, and defendant appeals.

<p>Appeal from special term.</p> <p>Action by Bernard F. Garvey against the Long Island Railroad Company. There was a judgment for plaintiff, and ■defendant appeals.</p>

<p>-Appeal from special term, Kings County.</p> <p>Application by Thomas F. Farrell for a writ of mandamus against John E. Sutton, as auditor of the city of Brooklyn. From an order granting the writ, defendant appeals.</p>

<p>Limitation or actions—Accrual or cause op action—Promissory note.</p> <p>A writing which states that plaintiff has “deposited in this .[defendants’] bank $300, payable to the order of himself, three months after date, in current funds, on the return of this certificate; properly indorsed, and shall receive interest at the rate of seven per cent, per annum,” is a promissory note, and not a certificate of deposit, and the statute of limitations begins to run against it three months after its date. Howell v. Adams, 68 N. Y. 314, distinguished.</p>

Action by William Guichard, an infant, by Augustine L. Guichard, his guardian ad litem, against Jacob New. From a judgment on a verdict -for plaintiff, and an order denying a new trial, defendant appeals.

Action by George W. Chesley, administrator of William P. Chesley, deceased. From an order vacating an order directing service of summons by publication, plaintiff! appeals.

<p>Appeal from special term, Orange County.</p> <p>Action by Charles H. Morgan against Stephen W. Fullerton and others. From an order directing the payment of an assessment from the proceeds of the property, plaintiff and defendant Margaret P. Humphrey appeal.</p>

<p>Appeal from special term, Erie County.</p> <p>Action by Frank P. Boechat against Martin Brown for the value of certain stone wrongfully taken by defendant. From a decision affirming a judgment for plaintiff, defendant appeals.</p>

.Appeal from surrogate’s court, Niagara County. Proceeding by Joseph McDonald, executor of the will of Peter McGraw, deceased, for probate of the will. From a decree refusing to admit the will to probate, the executor appeals.

Action by Henry E. Roehr against Julius Liebmann and others. From a judgment for plaintiff on demurrer to the complaint for improper joinder of causes of action, defendant Liebmann appeals.

<p>Consolidation act—Claims against kings county-t-Enforcement.</p> <p>A claim against Kings-County for salary accruing after January 1, 1896, under an employment by the board of supervisors, is within Laws 1895, c. 954 (Brooklyn Consolidation Act), § 3, which provides that all liabilities “ now existing or which may hereafter accrue in the city of Brooklyn and Kings County, and which, but for this act would be charges against said county, shall, from January 1, 1896, for the purpose of enforcement, be deemed charges against said city” and therefore must be prosecuted against the city.</p>

Action by the. New York Central & Hudson River Railroad Company against the village of Hastings on Hudson. From an order for a reference to ascertain defendant’s damages from an injunction therein granted, plaintiff appeals.

Application by John Tregaskis for a writ of mandamus to compel George W. Palmer, as comptroller of the city of Brooklyn, to appoint relator to an office. From an order denying a peremptory writ, relator appeals.

<p>Appeal from special term, Dutchess County.</p> <p>Action by Anne Minott Mitchell, individually and as admintratrix of Isabella H. Mitchell, against the village of White Plains. From an order appointing a referee, defendant appeals.</p>

<p>1. Landlord and tenant — Liability for rent — Destruction of Premises.</p> <p>Laws 1860, c. 345, exempting a lessee from liability for rent if the premises are destroyed during the term, does not apply where the lease contains a covenant providing against such contingency.</p> <p>3. Same—Pleading and proof.</p> <p>A provision of a lease that the rent should cease in case the premises should be destroyed by Are is not available as a defense in an action for rent unless pleaded.</p>

Action by Julia A. Macauley against Catherine Schneider for personal injuries. From a judgment entered on a verdict in favor of plaintiff * and from an order denying a motion for new trial, defendant appeals.

<p>1. Officers—Protection of veterans—Notice of privilege.</p> <p>Knowledge of a municipal board that a person dismissed by it from office was entitled to the protection of the veteran act (Laws 1893, c. 577), is conclusively shown by a recital in the. dismissal that he had “ been duly cited, in accordance with the provision of ” said act.</p> <p>3. Same—Confidential relations.</p> <p>An appointee under a city government does not hold “ a confidential relation to the appointing officer,” so as to except him from the-protection of the veteran act (Laws 1893, c. 577), merely because he is intrusted with the collection of money.</p>

<p>Real-estate agents—Right to commissions,</p> <p>A two-years’ delay for the purpose of removing a cloud from a title-to real estate will not defeat the recovery of commissions by brokers employed to purchase the property, if a deed is finally accepted by the purchaser, and the steps of the transaction are connected.</p>

Action by Patrick II. Flynn against the Brooklyn City Railroad Company and another to set aside a lease executed by defendant, Brooklyn City Railroad Company. There was a judgment in favor of defendants, and plaintiff appeals.

<p>Appeal from trial term, New York County.</p> <p>Action by Michael McGuire, as administrator of Michael McGuire, Jr., deceased, against the Third Avenue Railroad Company, to recover damages for the death of plaintiff’s intestate. From a judgment for $1,000, and $254.65 costs, entered on verdict in favor of plaintiff, and from an order denying a motion for new trial,, defendant appeals.</p>

Certiorari by William Lawson to review the proceedings of James J. Martin and others, constituting the board of police .commissioners, dismissing relator from the police force.

Application by J. Blackburn Miller for leave to lay out and open a highway in the town of New Windsor, and for the assessment of the damages caused thereby. From an order directing the town of New Windsor to pay the fees of commissioners appointed in a proceeding, said town appeals.

Action by Johannes H. Johannessen against John Munroe and others on a letter of credit. There was a judgment in favor of plaintiff, and defendants appeal.

Action by Charles Bemsen and William Manice, as executors of and trustees under the will of William Bemsen, deceased (substituted for said William Bemsen on his death during the pendency of the action), and Mary J. Edwards, Gerard M. Edwards, Mary M. Ostrander, and Laura J. Edwards, and Henry Lewis Morris and Mary J. Edwards, as executors of and trustees under the last will of Jonathan Edwards, deceased, against the Metropolitan Elevated Railway Company and the Manhattan…

Action by the union Square Bank of the City of New York against Theodore Beichmann, impleaded with Charles Bieck and James Harvey Bostwick, on á promissory note. From a judgment on a verdict for plaintiff, defendant Beichmann appeals.

Action by Peter Bryer against Catherine Foerster, as administratrix of Joseph Foerster, deceased, for personal injuries. A judgment was entered on a verdict in favor of plaintiff, and defendant appeals.

Action by Annie T. Murray, as administratrix of Martin Murray, deceased, against the Forty-Second Street, Manhattan-ville & St. .Fichólas Avenue Railroad Company to recover damages for the death of plaintiff’s intestate. From a judgment for $2,500 damages and $278.24 costs entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by Lawrence P. Farley against the mayor, aldermen, •■and commonalty of the city of New York for personal injuries. The complaint was dismissed, and plaintiff appeals. The facts are stated by Mr. Justice WILLIAMS as follows: The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by negligence of the defendant. The motion to dismiss the complaint was made at the close of the plaintiff’s evidence.

Action by Rufus 0. Parker against the mayor, aldermen, and commonalty of the city of ¡NTew York, for injuries to plaintiff’s bark, which was injured by defendant’s scow. ¡From a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.

<p>2. Master and servant—Negligence of master—Defective appliances.</p> <p>A master is not chargeable with negligence because of the breaking of an appliance of the usual size and material, but improperly welded, where the appliance was manufactured by a responsible concern, from which the master purchased it, with others, and it was put in position by a fellow servant, and no weakness was apparent to ordinary observation. 85 N. Y. Supp. 760 affirmed.</p> <p>1. Same—Evidence—Prior accidents.</p> <p>Where a servant was injured in consequence of latent defects in an appliance which, with others, was purchased by the master from a responsible concern, evidence as to whether any of the appliances broke “ the day or a day or two previous,” does not tend to show that the master had notice, before the accident, that the appliances were defective, and was therefore properly excluded. O’Brien, J., dissenting.</p>

Action by Mary Garety, as administratrix of Francis Garety, deceased, against David H. King, Jr., to recover damages for the death of plaintiff’s intestate, alleged to have been caused by defendant’s negligence. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, New York County.</p> <p>Action by Wiliiam Hyde Simonson, as trustee under the last will and testament of James Shaw Taylor, deceased, against George A. Waller, James T. Waller, Tom T. Waller, Alfred ZR. Waller, Elizabeth L. Warrin, Mary T. Lord,,George W. T. Lord, Samuel Lord, Jr., Thomas M. Lord, John T. Lord, Emma Smith, Laura Smith, Thomas P. Medley, Leonard Marshall, Mary L. Atkinson, and Joseph Beaumont Atkinson, for a judicial construction of the will of the testator, and the rights of claimants thereunder. From a judgment construing the will (35 N. Y. Supp. 201), defendants George A. Waller, James T„ Waller, Tom T. Waller, Alfred R. Waller, and Joseph Beaumont Atkinson appeal.</p>

Action by Yellott D. Deohert, as receiver for the benefit of 'the creditors of Joseph Byan, against the Municipal Electric Light Company. From a judgment dismissing the complaint, entered on a verdict directed by the court in favor of defend.ant, and from an order for an additional allowance of costs, plaintiff appeals.

Proceedings for the probate óf the will of Maurits F. H. De Haas, deceased. The will was admitted to probate, and contestant appeals.

Action by Albert Herter against J eremiah J. Mullen and •another. A verdict ivas directed in favor of plaintiff, and defendants moved for a neAV trial on exceptions ordered to be Heard in the first instance by the appellate division.

Action by the New York City Baptist Mission Society against the Tabernacle Baptist Church and others to foreclose four mortgages, aggregating in amount §83,400. From an order denying a motion by defendants to compel plaintiff’s attorneys to receive notice, defendants appeal.

Judicial settleinent of the accounts of Robert C. Embree as executor of and trustee under the will of Jacob W. Morris, deceased. From certain portions of the decree relating to the construction of the will, Lewis Morris appeals.

Action by Louis E. Bomeisler, as executor of the will of Salvatore Cantoni, deceased, against Elsa Forster, for an injunction. There was a judgment in favor of plaintiff, and defendant appeals.

Action by John Schantz against Walter Oakman and others for an accounting. From an interculoctory judgment sustaining demurrers to the complaint, plaintiff appeals.

Action by Charles C. Smith, as executor and trustee of the will of Adaline L. Gregg, deceased, against the A. D. Farmer Type Founding Company, to recover rent. From an order of the city court (40 N. Y. Supp. 356) sustaining defendant’s exceptions and ordering judgment absolute for. defendant and against plaintiff personally for costs, plaintiff appeals.

Action by David L. Einstein against the General Electric-Company et al. From an order directing that an open commission issue to examine various individuals, residents of Cleveland, Ohio, defendant, the General Electric Company appeals.

<p>Appeal from special term, Mew York County.</p> <p>Action by Adolph M. Bendheim against James B. Morrow for specific performance. There was a judgment in favor of defendant, and plaintiff appeals.</p>

Action by Augusta Feier, an infant, by Tiarry Levy, her guardian ad litem, against the Third Avenue Railroad Company, for personal injuries. From an order denying a motion. for leave to prosecute as a poor person, plaintiff appeals.

<p>Appeal from special term, New York County.</p> <p>Action by the Commercial National Bank of Chicago against Elwood S. Hand on a judgment. Erom an order directing defendant to serve a bill of particulars, defendant appeals.</p>

Action by Pauline Sperling against Adolph Boll and others. From a judgment entered on a verdict in favor of defendants and from an order denying a motion for a new trial, plaintiff appeals.

Application by a majority of the directors of the Murray Hill Bank for a voluntary dissolution of said bank.

<p>Receivers—Delivery of property to.</p> <p>One who has, by order of court, delivered property of a corporation to receivers, will not be afterwards ordered to deliver it to other receivers appointed in a different action.</p>

<p>Landlord and tenant—Evidence of oral lease—Res gestje.</p> <p>Evidence that an attorney had entered into an oral lease in behalf of his client as lessee, and that a memorandum embodying its terms was signed by a third person in behalf of the lessee, and witnessed by the attorney, and that the lessee knew of the lease, and paid the rent reserved, though he claimed to hold under another agreement at a different rent, is sufficient to admit the memorandum in evidence as part of the res gestae in regard to the oral lease, though there is no direct evidence that the attorney was authorized to make it.</p>

<p>1. Foreign corporation—Failure to obtain certificate—Pleading.</p> <p>Failure of a foreign corporation to obtain a certificate of authority to do business in New York (Laws 1892, c. 687, § 15) is a matter of defense in an action by such corporation brought in New York, and cannot be taken advantage of by demurrer, but only by answer. 40 N. Y. Supp. 360, affirmed.</p> <p>2. Same—Assigned contracts made out of the state.</p> <p>Laws 1892, c. 687, § 15, which provides that no foreign corporation shall sue in New York, on any contract made by it therein, without first obtaining a certificate of authority, does not apply to a contract made out of the state by a third person, and assigned to such corporation, or to contracts made before the enactm ent of the statute. 40 N. Y. Supp. 360, affirmed.</p> <p>3. Same—Right to sue after expiration of charter.</p> <p>A foreign corporation which, by the law of its domicile, continues to exist after the expiration of its charter, for the purpose of suing on debts which accrued before such expiration, may also sue in such case in New York. 40 N. Y. Supp. 360, affirmed.</p> <p>4. Law of another state—Pleading—Sufficiency.</p> <p>The law of another state under which a corporation is authorized to sue on its debts after the expiration of its charter is sufficiently pleaded in New York by an averment “that, under and pursuant” to such law, -suits may be brought.</p> <p>5. Same—Demurrer—Want of capacity to sue.</p> <p>A demurrer in an action by a corporation, on the ground that the complaint does not state sufficient facts to constitute a cause of action, does not raise the objection of want of capacity to sue.</p>

<p>Appeal from special term, Kings County.</p> <p>Action by Robert Dietz against Norman S. Dike, as receiver of the firm and property of Field, Lindley, Wiechers & Co., and S. H. H. Clark and others, as receivers of the Union Pacific Railway Company. From an order denying the petition of the Union Pacific Railway Company to compel the ■delivery to it of certain bonds and coupons (39 N. Y. Supp. 257) the receivers of the Union Pacific Railway Company appeal.</p>

<p>Appeal from surrogate’s court, New York County.</p> <p>Proceeding to revoke probate of the will of Antoine Ruppaner. The petition was dismissed, and petitioner appeals.</p>

<p>Appeal from special term, New York County.</p> <p>Action by John H. Heller, Jr., and William S. Heller, as executors and trustees of John H. Heller, deceased, against William Cohen. The complaint was dismissed and plaintiffs appeal.</p> <p>The action is brought to obtain specific performance of a contract to purchase real property. The contract was made December 4, 1893. By it, the plaintiffs, as executors and trustees of John H. Heller, deceased, having a power of sale under the will, agreed to sell, and the defendant to purchase, the folloAving described premises : “ Beginning on the southerly side of Grand street, at a point distant seventy-five feet eleven and one-half inches westerly from the corner formed by the intersection of the southerly side of Grand street Avith the Avesterly side of Chrystie street; running thence southerly one hundred and tAventy-five feet one inch ; thence westerly, parallel or nearly so with Grand street, tAventy-five feet one inch ;- thence northerly one hundred and twenty-five feet and threea inches, to the said southerly side of Grand street; and thence easterly, along said southerly side of Grand street, twenty-five feet, to the point or place of beginning; be all said several distances and dimensions more or less. The premises hereby intended to be conveyed being known and designated as and by the street number two hundred and forty-five Grand street, as noAV built upon and inclosed.” The premises consist of two plots, coming from different sources,—the first fronting on the south side of Grand street, between the BoAvery on the Avest and Chrystie street on the east, and approximately 25 feet in front and rear, and 100 feet in depth; the second adjoining this parcel on the rear, and approximately 25 feet square. The plaintiff’s chain of title to the first plot is as folloAvs : In 1810, John Lawrence conveyed to Thomas White a piece of land “ beginning at the distance of seventy-five feet from the northwest corner of First (noAV Chrystie) street on Grand street, and runs south one hundred feet, more or less to Isaac Berrian’s ground, by a straight line; then Avest tAventy-five feet, more or less, to Thomas White’s ground; then north one hundred feet, to Grand street, more or less; and then doAvn Grand street, to the place of beginning, twenty-fivTe feet, more or less.” By White’s will, probated in 1814, he disposed of considerable property on the south side of Grand street on- this block. He first devised to his grandson Thomas White a piece of land commencing at the corner of the Bowery and Grand street, fronting 75 feet on Grand street, and 50 feet deep. He next devised to his granddaughter Margaret White a. piece of land 26 feet 3 inches in front and rear, and 50 feet in depth, commencing at the easterly extremity of the preceding premises. He then devised to his granddaughter Ann White the premises “commencing in Grand street, at the easterly extremity of the last-mentioned lot, and running from thence easterly, along Grand street, twenty-five feet; from thence southerly, parallel to the Bowery, one hundred feet; and from thence westerly, parallel to Grand street, twenty-five feet; and from thence to the place of beginning.” This is the property in suit. Ann White intermarried with Mead Darrow, and in 1820 she and her husband conveyed it to William Schott, by the same description, as to metes and bounds, contained in the deed from Lawrence to White. The premises are, however, stated to be the same which were conveyed by that deed, and devised by White, the deed and devise being accurately described. Schott conveyed to Charles Speaight in 1821, by the same metes and bounds, and the same reference to the deed and dfevise. Thereafter Speaight died, intestate ; the property was partitioned; and the plaintiffs’ testator, John H. Heller, ■purchased it at the sale. The complaint and decree in the partition suit contain the same description, by metes and bounds, as the preceding deeds, but omit the reference to the original deed and devise. The referee’s deed, however, after reciting athe judgment, a sale thereunder at public auction, and confirmation of the report of sale, corrects the prior descriptions •by conveying the property: “ Beginning at the distance of seventy-five feet from the southwest corner of Chrystie (formerly First) street, on Grand street; * * * being the same premises of which Charles Speaight died seised; the said premises being the same as conveyed to the said Charles Speaight by William Schott, by deed dated May 1, 1821, and recorded in the office of the register of the city and county of New York on the'seventh" day of May, 1821, in Liber 151 of Conveyances, page 235.”</p>

<p>Officers—Appointment—Specifying officers succeeding.</p> <p>In 1890 the Mayor of Long Island City appointed five of the sis: members of the board of health, two for three 'years, two for two years, and one for one year, the charter requiring appointments to be for one, two, and three years. In February, 1893, two appointments were made for a term of three years, but the record did not show in whose places such appointments were made. Afterwards the Mayor appointed one D. as a member of the board, stating that the appointment was in the place of B., whose term expired. At the time of the appointment in February, 1893, there were two three-year vacancies, one of which was created by the expiration of B’s term. At the time D. was appointed, there were other vacancies on the board. Held, that, notwithstanding the recital in the appointment of D. as to the expiration' of B.’s term, D. was not appointed to succeed him.</p>

<p>Action by Thomas Balmford, as temporary administrator of Alfred Fogarty, deceased, against the Grand Lodge of the Ancient Order of'</p>

<p>Action by Fannie Briscoe, an infant, by Charles H. Luengene, her guardian ad litem, against Jacob Litt. T. Pinney, for appellant. Fromme Bros., for respondent.</p>

<p>Action by William L. Evans against Louis H. Kircher and another, and three other cases. E. W. S. Johnston, for appellants. S. Hanford, for respondent.</p>

<p>Action by Ezra B. Fancher against Bonifacio Pinon. Coudert Bros.,, for appellant. J. R. Fancher, for respondent.</p>

<p>Action by Ignatz Frischman against Moses Zimmerman and Herman Walke. S. D. Levy, for appellants. J. Fromme, for respondent.</p>

Action by Elwood S, Hand against William A. Shaw and others. Motion for reargument or for leave to appeal to the court of appeals denied. For decision on appeal, see 41 N. Y. Supp. 16. Chas. De Hart Brower, for the motion. D. J. Newland, opposed.