Volume 76 — New York Appellate Division Reports

Appeal by the defendant, the Metropolitan Street Railway Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of February, 1902, upon the verdict of á jury for $30,000, and also from an order entered in said clerk’s office on the 12tli day of March, 1902, 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>Negligence — injury to one who, engaging in a friendly scuffle on a sidewalk, falls - into an opening to an ash pit, at the time in actual use —presumption of authority, from three years’ existence of the opening.</p> <p>In an action to recover damages for personal injuries, it appeared that the defendant maintained an ash pit under the sidewalk in front of a building owned by him; that the opening into the ash pit through the sidewalk was three feet long and two feet nine inches wide and was covered by two doors, which when opened projected sixteen inches above the sidewalk at each side of the opening; that on the afternoon of the day of the accident, while the ash pit was ■open and in use by one of the defendant’s employees, the plaintiff, who was a truckman in the employ of the owner of the adjoining building, was upon the sidewalk caring for his horses and awaiting orders from his employer; that some other men were also upon the sidewalk waiting for employment, and that the plaintiff playfully took a glove from the pocket of one of such other men; that the owner of the glove followed the plaintiff for the purpose of recovering possession thereof, and that the plaintiff stepped back a few steps, stumbled over the grating and fell into the ash pit, sustaining injuries.</p> <p>The plaintiff had worked in the neighborhood of the ash pit for upwards of six years and knew of its existence, but, as testified by him, had never seen it open. The cause of action was based entirely upon negligence and no claim was made that the ash pit was not lawfully constructed.</p> <p>Held, that as the ash pit had existed for three years without objection on the part of the city authorities, it would be presumed that the city authorities had consented to its construction;</p> <p>That, assuming the ash pit to have been lawfully constructed, the defendant was bound to properly guard and protect it, and that any failure in this respect would constitute negligence which would authorize a person injured because of such failure to recover damages;</p> <p>That the evidence conclusively established that the accident was not caused by any negligence on the part of the defendant, and that a judgment entered upon a verdict in favor of tfie plaintiff should be reversed.</p> <p>O’Brien and Hatch, JJ., dissented.</p>

<p>Lessees of land and owners of the building thereon—when they a/re tenants in common and not partners — measure of damage for the negligent destruction of the building — action continued in the name of the survivor who is the executor and legatee of his deceased cotenant — supplemental pleading waived.</p> <p>In an action brought by the lessees of a building to recover damages from the lessee of an adjoining building for negligently permitting such adjoining building to fall upon the plaintiffs’ building and injure it to such an extent that the plaintiffs were required by the, city authorities to remove it, it appeared that at the time of the destruction of their building the plaintiffs were holding under a two years’ lease which did not contain any right of renewal, but did give them the power to remove the building at the expiration of the term.</p> <p>It further appeared that the plaintiffs’ lessor was a church corporation which had leased the property continuously for a period of about one hundred and thirty years, and that, although it had adopted a policy of not renewing leases for more than one or two years, it was its custom to grant such a renewal whenever desired.</p> <p>Held, that, in determining the value of the building to the plaintiffs, the court might consider the probability of their being able to obtain renewals of the lease for many years or to sell the building to a succeeding tenant or to the owner;</p> <p>That the plaintiffs were entitled to recover the fair rental value of the property for the remainder of the term and also the money which they were compelled to expend in removing their building.</p> <p>Van Brunt, P. J.„ dissented.</p> <p>The plaintiffs originally acquired possession of the demised premises under an assignment from a previous lessee, which assignment was purchased by them under an agreement which provided that each of them should advance an equal portion of the consideration and that the profits and losses should be divided between them. The leases subsequently executed to the plaintiffs did ¿ot characterize the nature of their tenancy in the leasehold, and the complaint in the action simply alleged that the plaintiffs were tenants and the owners of the building.</p> <p>Prior to the trial one of the plaintiffs died leaving a will by which he left the surviving plaintiff all of his, the decedent’s, property, including “any interest that I have or that may accrue to me from actions now pending by me,” and appointed'such surviving plaintiff Ms sole executor.</p> <p>The defendant having also died, the surviving plaintiff made a motion to continue the action, which resulted in an order that the action be continued in the name of the surviving plaintiff against the executrix of the original defendant, and that the pleadings and proceedings already had should stand as the pleadings in the action as continued.</p> <p>Held, that, as the nature of the tenancy of the original plaintiffs' in the leasehold interest was not declared in the leases, they became tenants in common thereof by virtue of section 44 of 1 Revised Statutes, 727;</p> <p>That the agreement between the original plaintiffs at the time they originally • ' acquired possession of the premises did not constitute them partners in the leasehold;</p> <p>That, as the surviving plaintiff had succeeded to the deceased plaintiff’s rights in the premises and was his sole executor, the court might award to him judgment for the entire damage resulting from the destruction of the building, and that the judgment rendered in such an action would be a bar to any other action growing out of the same subject-matter brought by the personal representatives of the deceased plaintiff; ,</p> <p>That, while it would have been the better practice to serve a supplemental pleading showing the devolution of the deceased plaintiff’s title upon the surviving plaintiff, as the defendant had interposed no objection to the procedure adopted for the continuance of the action, the court would, for the purpose of sustaining a judgment awarding the surviving plaintiff the entire damage sustained ■ because of the wrongful acts of the defendant, disregard the irregularity and deem the pleadings amended so as to conform to the facts proved.</p>

Appeal by the defendant, Max Hochstim, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, entered on the 6th day of December, 1901, convicting the defendant of the crime of willfully and feloniously hindering a deputy superintendent of elections in the performance of his duty, and releasing and assisting in the escape of a prisoner from the custody of such officer. . .

Appeal by the plaintiff, Erwin W. Winger.t, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 13th day of February, 1902, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case, and also from an order entered in said clerk’s office on the 17th day of January, 1902, denying the plaintiff’s motion for a new trial made upon the minutes. ■

<p>Appeal by the defendant, The New York University, 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 25th day of May, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, directing a- reconveyance by the defendant to the plaintiff of certain premises and property mentioned and described in a deed from the plaintiff to the defendant bearing date the 8th day of February, 1897, and recorded March 2, 1897.</p> <p>The theory of the action and the grounds of the decision are that the conveyance was made in trust or upon conditions and that the defendant has repudiated the trust or violated the conditions, and that a specific performance is impracticable.</p> <p>It appears that the “subscribers and shareholders of ‘The University of New York’” were incorporated in 1881 “for the purpose of promoting literature and science,” under the name of “The University of the City of New York” and it was provided that the corporation should be “conducted and managed” by a council of thirty-two shareholders and the mayor and four members of the common council. (Laws of 1831, chap¿ 176.) In 1837 a committee of ten physicians associated themselves together for the purpose of organizing a medical department for the uni-</p> <p>versity, and an act was passed expressly authorizing, the university to grant diplomas upon the “ recommendation of the. medical , faculty ” (Laws of 1837, chap. 25), which for brevity will be called the faculty. . The first plan adopted by the council for the organization of .the medical department provided that it should be subject to.the control of the council and that the university should be responsible therefor financially. This plan was not carried out. In 1841 a new plan was proposed, and the following “ statutes ” were adopted by the council for the organization of the medical faculty on the 27th day of January, 1841, to wit:</p> <p>“ I. All expenses for building, apparatus, museum, etc., are to be,provided for by the Medical Faculty and the Council shall be in no ways responsible for expenses incurred by' the Medical Faculty.</p> <p>“ II. Each graduate shall pay to the Treasury of the University $20, $10 of which shall be given to the Chancellor for each diploma furnished by him, and this shall be the only tax required by the Council from the students or Faculty.</p> <p>“ III. Nominations to fill vacancies and to establish new professorships shall come from the Faculty to the Council.</p> <p>“ IV. The. Faculty shall have power to make any by-laws for their own government and that of the students, which-shall be compatible with the character and general statutes of the University, to-regulate the terms of instruction and the fees from students, and to recommend students for diplomas.”</p> <p>On the 3d day of February, 1841, the council supplemented these statutes by by-laws regulating the giving of notices to fill vacancies,, providing for increasing the number of professorships bey bn d six on the recommendation of the faculty; that good moral character and the degree of doctor of medicine should" be an essential qualification for a “ chair; ” that “ it being the mutual desire of the Council and the Faculty to enlarge the usefulness of the medical profession,” an effort should be made as soon as deemed expedient by both to induce the Legislature to extend the term of medical education and that the council reserved the power to repeal or amend “ the plan of organization of the Medical Faculty.” Thereupon a medical faculty was elected and a committee appointed to organize the same. This committee became permanent and was known as the medical committee. It was designed to represent the council in matters pertaining to the faculty, but discharged no function of importance except as hereinafter specified.</p> <p>The medical department first opened the last week of October, 1841. All vacancies arising in the faculty have been filled by nomination of the faculty and election of such nominees by the. council. As the medical college developed the number of professorships was increased to eight, such professorships being filled in the same way as vacancies. Assistant professors and instructors were employed by the faculty without action on the part of the council. The responsible professors, those who contributed the funds for the ' establishment of the medical department, were called the “ Governing Faculty,” and they managed the business affairs, the council taking no part therein except upon request of the faculty. Degrees were conferred by the university on all candidates recommended by the faculty.</p> <p>An appropriation from the income of the United States deposit fund was made to the council “ for the use of the medical faculty ” of $3,000 per year for five years, and until otherwise ordered. (Laws of 1844, chap. 279, § 3.) But in 1847 (Chap. 258, § 2) the appropriation of $2,000 for each year of 1847 and 1848 was made from the same fund to the “Medical Faculty of the University of New York.” Some money appears to have been obtained by committees of the university for the medical college, but scholarships were granted for the same exceeding, according to the regular tuition fees, the amount received. This seems to have been the only direct financial aid given by the university, except that later on its council raised a fund of $10,000 by subscription and paid the income to the chancellor for his salary as president ex officio of the faculty, in which capacity he only acted on request.</p> <p>From the profits and the investments of the governing faculty the medical college prospered and accumulated property. In 1869 an act was passed authorizing “ The Medical Department ” to acquire and hold real estate, not exceeding $75,000 in value, in its own name or in the name of a trustee, for purposes of a medical college. (Laws of 1869, chap. 39.)</p> <p>In 1883 the eight members of the governing faculty were by name constituted a body corporate under the name of the “ Medical College Laboratory of the City of New York.” Prior to this the medical faculty had applied to the council for consent to incorporate under the name “University Medical College.of the City of New York,” which does not appear to have been granted. The Medical College Laboratory corporation was given power to take and hold property, real and personal, and to issue certificates representing the shares or interest of the incorporators therein who at that time owned all the property. The eight incorporators were constituted a board of directors and the board given, power to fill vacancies .arising therein. (Laws of 1883, chap. 125.) The property of the medical college was transferred by the members of the.governing faculty to the corporation. The board of directors assumed the-management of the financial or business affairs of the college, .and the governing faculty continued the management of the work of education and maintained relations with the council the same as before, Later three lay members were elected to the board of directors.</p> <p>In 1892 an act w.as passed authorizing the members of the Medical College Laboratory to transfer their individual shares or interest in the property to the corporation “ upon such trusts for educational and scientific purposes, and subject to such provisions and conditions ” as might be agreed upon, “ with power to said corporation for the purposes aforesaid, at any time thereafter to enter into agreement with the University of the City of New York for the use of such property, and with further power at any time, in its discretion, to convey and transfer by deed or gift to said University of the City of New York any or all of such property.” (Laws of 1892, chap. 549.)</p> <p>The respondent’s balance sheet for 1889 shows receipts or assets amounting to $226,074.45, with obligations, including faculty subscriptions or investments, of $148,300.' In 1891 or 1892 Col. Oliver H. Payne, a friend of the faculty, donated sufficient money to pay off all obligations then remaining, including the investments or subscriptions of the professors, and by resolution of November 22, 1892, the board of directors declared that all individual ownership should cease on December 1, 1892, and the interest of each director should vest in the corporation on his ceasing to be a member of the board.</p> <p>Col. Payne became a member of the council in 1894. It appears that during the existence of the medical college there was no precedent for the removal of a professor. In the autumn of 1896 the chancellor of the university was approached by Dr. Stimson, a member of the governing faculty, upon the subject of removing one of the professors. ■ The chancellor suggested that the only way was for the medical college to surrender its property to the university and place itself under the management of the council. It was admitted that the council had been apathetic — that its old medical committee had not met during the administration of the then chancellor (upwards of ten years) — and this was ascribed to the independent status of the medical department. Similar suggestions had been made in 1875, again in 1886, and again in 1889; but then the property of the medical college was incumbered and nothing came of the suggestions. It was not contemplated at those times, however, that the property was to be transferred unconditionally, as a gift to the university, nor that the management and control of the medical college was to be placed in the hands of the council. The plan proposed ■ was for the faculty to take back a permanent lease, “ for themselves and their successors,” paying interest, tin the mortgage (which was to be reduced to $35,000) until discharged and then free of rent; the faculty also paying taxes, insurance and repairs. At this interview in 1896, between the chancellor and Dr. Stimson, it was mentioned that if the council ever had the power to remove a professor, it had lapsed with disuse. The advisability of interesting the medical committee in the affairs of the college was discussed, and the chancellor suggested that there were two vacancies in the council that might be filled with friends of the medical college. Dr. Stimson testified that the chancellor said that if the property of the medical college were transferred to the university a medical committee would be. appointed “ that should have control and direction ” of the affairs of the college, and would be composed of men “ agreeable ” and “ satisfactory ” to the faculty and that the faculty were invited to suggest two men to be elected to the council. Dr. Stimson further testified that after consulting with his colleagues he proposed Henry F. Dimock, a close, friend of Col. Payne, and Charles E. Miller,, a director of the medical college laboratory. The chancellor’s testimony differs from that of. Dr. Stimson chiefly in a denial that he said that the affairs of the college should be under the control of the committee. It .does not appear affirmatively whether the nomination of said two memr bers was made with a view of effecting a transfer of the property of the medical college, or merely to obtain a committee that would interest itself in the'affairs of the college.</p> <p>On November 2, 1896, the two men proposed by Dr. Stimson were elected members of the council and were then, or soon after, placed bn the medical committee. The committee then, consisted of Henry F. Dimock, chairman, Col.Oliver H. Payne, Charles T. Barney and Charles E. Miller, with the chancellor ex officio. All except the chancellor were regarded by the governing faculty as their friends. At tliis time the board of directors of the Medical College Laboratory was composed of five members of the governing faculty and three lay members, one of whom was Charles E. Miller, above named. On November 24, 1896, the medical committee of the council adopted a resolution authorizing the chairman to confer with the executive committee in regard to inviting the Medical College Laboratory to transfer its property to the university in consideration of a guaranty to each member of- the governing faculty of a salary of $3,000 per annum for three years. It appears that the compensation of professors had been- as high as $5,500, out of the returns of the- institution, but were limited to $4,000 after the gift from Col. Payne, and he had guaranteed their salaries for a period which had expired, and that, owing to the -fact that the co.urse.of instruction had been lengthened to four years, it was anticipated that there would be a falling off of revenue and a possible reduc-' tibn of salaries. ' The executive committee approved the resolution of the medical committee and appointed .the chancellor and Mr. Dimock a committee to confer with the Medical College Laboratory and invited it to confer with said committee. A meeting was held ón the 19th day of December, 1896, at which all of the professional members of the board of directors and Mr. Miller were present. The other two lay members were not present. The testimony relating to what took place at that conference is considered in the opinion. •'</p> <p>On January 28, 1897, the board of directors of the Medical College Laboratory adopted a resolution authorizing and directing the transfer of its property to the appellant. The resolution was preceded by a preamble reciting that the corporation “ in its discretion consider that the property, real and personal, should be transferred by gift.” A deed was executed, dated February 8, 1897, reciting a consideration of one dollar and containing an assumption of the debts, if any, of the grantor by the grantee, and conveying premises on tlie southerly side of Twenty-sixth street, 150 feet easterly of First avenue, together with all personal property, of the grantor wherever situated. The property covered by the deed had cost $200,000 and over, but its value was estimated at from $100,000 to $150,000. • The deed was accepted by the council on March 1,-1897.</p> <p>On March 18, 1897, negotiations were formally commenced by the executive committee of the council for a consolidation of the Medical College Laboratory with the Bellevue Hospital Medical College. The overtures were promptly accepted by the trustees of Bellevue and reported by the medical committee to the council on April 5,1897, and approved. By April twelfth the consolidation seems to have been assured, and on that date the medical committee adopted a resolution calling for the resignations of the eight members of the "governing faculty, as it existed prior to the transfer from the respondent. The resignations were duly tendered and reported by the committee to the council and accepted on May 3, 1897, at which time the medical committee reported university statutes regulating the performance of the duties of the faculty, appointing the officers, professors, adjuncts and assistants of the faculty, conferring on the committee the power to appoint instructors and assistants and, with the approval of the executive committee, to fix salaries. This report was adopted. On May 24, 1897, the Council met on call and received a vehement protest from the former faculty of the Bellevue Hospital Medical College against the action already taken. The former action was reconsidered;. a substitute for the report of the medical committee was offered, and both the substitute and report referred to the medical committee, with directions to report at an adjourned meeting two days later. The difference between the report and substitute was that the latter stripped the medical committee of its power and left the former governing faculty in a minority in the'governing faculty of the new or consolidated college. The former report of the committee was the other way, which,, it. is claimed, would have insured a continuation of the methods and .policies which the governing faculty of. the respondent had developed.</p> <p>On the adjourned day the council met and the medical committee. presented a compromise report acceptable to the old faculty. This was amended by the council in respects regarded as material by the former governing faculty of the respondent, and rendered not acceptable to said faculty by reason thereof. Memorials were submitted by the members.of the former governing faculty urging an abandonment of the.plan of consolidation. On June 8, 1897, a hearing was given by the executive committee to the. various professors. All from the respondent and some from the Bellevue Hospital Medical College favored an abandonment of the project of consolidation, chiefly because of the lack of harmony and conflicting views. On the tenth the executive committee adopted resolutions approving the scheme and tabled a resolution offered by Mr. Dimock to abandon it. ' The action of the committee as' thus amended by the council was adopted on the same day.</p> <p>After May or June, 1897, the medical committee was not consulted concerning the affairs of the medical department. Six of the professors, members of. the former' faculty to whom chairs were offered, having declined, the chairs' were filled by the election of others for one year. On July 19, 1897, the treasurer rejDórted that he had purchased premises adjoining the former premises of the Medical College Laboratory for a little less than $100,000. On November 1, 1897, the annual election of members of the council was held; The committee on nominations reported Messrs. Miller and Payne, of the then medical committee, for re-ele.ction, hut,not, Mr. Dimock. Col. Payne nominated Mr. Dirnóck. The nominees of the committee were elected. Mr. Dimock withdrew from the meeting. Messrs. Payne, Barney and C. E. Miller, tendered their resignations and withdrew. The resignations were tabled and a committee was appointed then or subsequently to urge that they withdraw them. This.committee received a letter from Col. Payne, dated. January 8, .1898, stating that they could not attend the .meeting, but. setting, forth his view of the transactions in part as follows :</p> <p>“ 1. therefore considered, my self peculiarly bound to understand fully the. conditions, upon which the transaction was to be made. , I repeatedly conferred with those gentlemen and with the Chancellor, and the result was that I entertained no doubt but that it was fully and definitely understood by all parties that in case the property was turned over, both the property and the entire direction and control of all matters relating to medical affairs should be vested in a medical committee to be constituted by an agreement on individuals by name. Such a committee was constituted, two gentlemen being elected by the council for that purpose. Under such circumstances alone I advised that the property be turned over,' otherwise I should not have so advised. I feel that the agreement upon which I relied when giving the advice has been entirely violated, and my own honor demands that the property should be returned.”</p> <p>On January 8, 1898, the directors of the Medical College Laboratory made a written request for the retransfer of the property and stated, as a reason therefor, that the university had violated the understanding on which the transfer to it had been made, in changing the personnel of the medical committee without its consent and taking from that committee the direction and control of medical affairs.</p> <p>It appears that there was another corporation,-the Loomis Laboratory, whose board of trustees was controlled by the former governing faculty, and which held in trust for the use of the faculty premises and apparatus, and an endowment fund stated to be $117,000. This property was in the way to be transferred to the university when the misunderstanding arose and arrested action. In March, 1898,-the council reappointed the same six members of the former governing faculty for ’ another year and elected them to permanent professorships upon the express “ condition that the professors support the U niversity statutes and the University control of ■ the property employed for medical education.” This seems to have been understood to mean, among other things, that they were to use their influence to have the property of the Loomis Laboratory turned • over to the university. The professorships were not - accepted and the former .members of the faculty, sooner or later, severed their connection with the university; the time or times when the separation occurred does not definitely appear. The university then fully constituted its medical department with a corps of professors not ■ including any of the former governing faculty and the same has since so continued. This action was commenced,May 24, 1898.:</p>

<p>Appeal by the plaintiffs, Charles Hayden and another, from an order of the Supreme Court, made at the Few York Special Term and entered in the office of the clerk of the county of Few York oil the 14th day of August, 1902, vacating a warrant of attachment - theretofore obtained by the plaintiffs.</p> <p>The affidavit on which the attachment was granted alleges “ that the defendant, whose Christian name is unknown to plaintiffs,-but who signs himself ‘P. Mullins,’ was a resident of Butte, in the State of Montana, United States of America, and was a non-resident of the State of New York.”</p>

<p>Appeal by Abraham Barasch from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 4th day of June, 1901, directing that a supplemental summons issue making him a party defendant in the place of “John Doe,” and also from an order, made at the Hew York Special Term and entered in said clerk’s office on the 28th day of June, 1901, denying the appellant’s motion to vacate and set aside the first-mentioned order.</p>

<p>Appeal by the petitioner, John McLaughlin, 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 10th day of June, 1902, denying the petitioner’s motion for leave to commence an action to recover the balance of a mortgage debt.</p>

Appeal by the plaintiff, Max Goldstein, 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 26th day of February, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order, entered in said clerk’s office on the 21st day of March, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York University, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 16th day of Hay, 1902, and entered in the office of the clerk of the county of Kings, granting a temporary injunction restraining the defendant from interfering with the plaintiff in his attendance at the lectures of the junior class of the University Law School.

<p>Appeal by The City of New York, the successor to the Mayor, Aldermen and Commonalty of the City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1901, denying a motion to confirm the report of commissioners of estimate and assessment appointed in the above-entitled proceeding.</p>

<p>Appeal by The Oity of New York from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of July, 1902, taxing the costs, charges and expenses of the commissioners of estimate and assessment appointed in the proceeding.</p>

<p>Summary proceedings — the justice may determine whether any rent is due—he may take an account— if he errs the remedy is by appeal and a stay — a court of equity may interfere if the amount due for rent cannot be determined from the justice’s decision.</p> <p>The complaint in an action alleged that the plaintiff was the assignee of a lease of premises owned by the defendant, and that the latter had instituted summary proceedings to recover possession of the property, because of an alleged default in the payment of rent; that the plaintiff interposed an answer in the proceeding, alleging that all rent due under the lease had been paid; that upon the trial the plaintiff claimed to have paid certain sums of money for taxes, water rents and interest upon a mortgage, under a clause of the lease authorizing him to pay such sums in the event of the failure of the defendant to do so, and to deduct them from the rent; that upon such trial the defendant, to the surprise of the plaintiff, claimed to have paid an item of fifty-two dollars for water rent before such item was paid by the plaintiff, and disputed the other payments alleged to have been made by the plaintiff; that, if it was found that in point of fact the item of fifty-two dollars had been paid as claimed by the defendant, the plaintiff was “innocently in default” on the rent due under the lease in the sum of thirteen dollars and eighty-eight cents; that the matter had been taken under advisement by the justice, and that no final order-had been made; that the plaintiff had duly paid into court the said thirteen dollars and eighty-eight cents, and the costs of the summary proceeding, and had notified the defendant of such payment, and had duly tendered to the defendant the rent subsequently accruing under the lease.</p> <p>The relief demanded in the action was an accounting as to all sums due from the plaintiff to the defendant under the lease, and all payments made by the plaintiff for rent, interest, taxes, assessments or water ■ rents, and for an injunction restraining the defendant from continuing the summary proceeding or from instituting any other summary proceeding because of any default in the payment of rent theretofore accruing.</p> <p>Upon an appeal from an order granting a preliminary injunction restraining the defendant, among other things, from the further prosecution of the- summary proceeding, it was</p> <p>Held, that the preliminary injunction should be vacated;</p> <p>That, under section 2244 of the Code of Civil Procedure, the justice before whom the summary proceeding was pending had jurisdiction to determine whether there was any rent due under the lease;</p> <p>That, if an accounting was necessary to determine that question, the justice had power to take the account;</p> <p>That, if the justice erroneously determined the issue raised, the plaintiff’s remedy was by an appeal from the final order awarding possession of. the premises to the defendant and to obtain a stay, pending the appeal, of the warrant issued under such order;</p> <p>That, if a final order should tie made awarding the defendant the possession of the premises and the plaintiff could not ascertain from the justice’s decision the amount due for rent, the plaintiff might be justified in applying to a court ' of equity for relief.</p> <p>O’Brien and Hatch, JJ., dissented.</p>

Appeal by the defendants, John Bernstrom, individually and as managing director of Aktiebolaget Separator, 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 17th day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrers to the second amended complaint.

<p>Attachment — motion to 'vacate it because j(f a recital of “wrongful detention” ' instead of “wrongful conversion”—it is an irregularity and must be specified in-the notice of motion — moving pap'ers stating conclusions of belief, but not facts, are insufficient—insufficient groundsfor 'an attachment — attachment of money deposited as bail, ]</p> <p>A recital in a warrant of attachment that the action is brought to recover damages for the "wrongful detention” of personal property instead of for a wrongful conversion of such property, as was shown by the complaint and affidavit upon which the warrant was granted, is not a jurisdictional defect, but an irregularity, which is not available upon a motion to vacate the warrant, unless "it is specified in the notice of motion, as required by rule 37 of the General Rules of Practice.</p> <p>An attachment cannot be sustained unless ¡the papers on which it was granted . .Show by competent evidence the facts required by. the Code of Civil Procedure, and mere conclusions of belief, not founded on facts thus shown, are of no avail.</p> <p>A defendant in a civil action who had been taken into custody under an order of arrest, obtained his release by depositing, in lieu of bail, a sum of money which he had borrowed from a third person, and at the time of making such deposit ordered, in the form authorized by section 586 of the Code of Civil Procedure, that if he should become entitled to the return thereof it should be paid to such third person. Subsequently the defendant substituted an undertaking for the cash bail, and obtained an order directing the return to him of the cash deposit. Before the deposit had been returned to the defendant, pursuant to the order, the plaintiff obtained an attachment against the deposit, upon an affidavit stating that the plaintiff “is informed and believes that said defendant is about to remove, dispose of or secrete said sum of four hundred (400) dollars for the purpose of defrauding his creditors and of preventing the execution of any judgment which might be recovered by the plaintiff.”</p> <p>The only grounds of the affiant’s belief disclosed by the affidavits were that executions on several judgments against the defendant had been returned unsatisfied, and that the affiant had been unable to discover, “ after diligent search,” any property of the defendant subject to levy under execution, or to discover the whereabouts of the defendant, although he had made inquiry of the defendant’s attorney, and “ caused diligent search to be made,” and that the sheriff had been unable to serve the attachment papers on the defendant.</p> <p>Held, that the papers upon which the attachment was granted, and on which it was sought to be sustained, were utterly insufficient.</p>

<p>Inspector of combustibles in New York_ city — it is his duty to act without being required to. do so by the fire commissioner—when he should apply to the commissioner for authority.</p> <p>Where the inspector of combustibles in the city of New York, who is charged by-section 737 of the Greater New York charter “ with the execution of all laws relating to the storage, sale and use of combustible materials,” knows that a quantity of dynamite, in excess of that authorized by the regulations of the fire commissioner, is being kept in a place in the city of New York, it is his duty to .confiscate such explosive compound and remove it to a place of safety, as provided in section 763 of the Greater New York charter.</p> <p>Sections 738, 731 and 771 of the Greater New York charter, relating to the power of the fire commissioner, do not relieve the inspector of combustibles from the obligation of taking action in such a casé until he is required to do so by the . fire commissioner. -</p> <p>Semble, that it is necessary for the inspector of combustibles to apply to the fire commissioner, under section 771 of the Greater New York charter, for authority to enter premises, only where the inspector of combustibles is without knowledge, that the law is actually being violated thereon and access to the premises is denied him.</p>

Appeal by Edwin M. Wight, as cpmmittee of the person and property of Harriet H. Arnold, an incompetent person, 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 pf New York on the 25th day of June, 1902, appointing a referee to take proof-of the facts set forth in the petition and answer here in and to report the testimony together with his opinion thereon.

<p>Action by a wife for a separation — the defendant’s answer cannot be stricken out because of a refusal to pay alimony and counsel fees.</p> <p>In an action brought by a wife against her husband to obtain a separation, the court has no power to punish the husband’s refusal to obey an order directing him to pay alimony and counsel fees pendente lite, by striking out his answer and refusing to allow him to defend the suit.</p> <p>Such a course operates to deprive the defendant of property without due process of lawj and is in violation of the 14th amendment to the Federal Constitution.</p>

<p> Demise with the right of access to a waterfront and of the me of a dock—subsequent lessees of such dock are subject thereto in the inverse order of the dates of their leases—an existing adjoining street must be used to obtain access thereto, if practicable. </p> <p>On January 28, 1892, one Tuska was the owner of a tract of land in the city of New York, bounded on the north by One Hundred and Sixth street, on the east by the East river, on the south by One Hundred and Fifth street and on the west by a line' parallel with, and 363 feet easterly from, First avenue.</p> <p>A private driveway extended through the parcel from One Hundred and Fifth to One Hundred and Sixth street, and a dock had been built along the water front extending from One Hundred and Fifth to One Hundred and Sixth street. Fences had been constructed along the northerly line of One Hundred and Fifth street and along the southerly line of One Hundred and Sixth street, extending "from the private driveway across the dock to the bulkhead. The portion of the dock at the foot of each of the two streets had been appropriated to the public use.</p> <p>On the day above mentioned Tuska leased to J. & J. W. Stolts, a manufacturing association, the portion of the tract lying westerly of the driveway, “ Together with the right to use a certain driveway, to the east of the property herein-above leased, and with a right of access to some point of water front and dock for the purpose of receiving materials to be used in the business of the tenant, and of shipping its manufactures, provided, ■ however, the tenant shall at no time encumber or obstruct said ways or any part of said water front and dock, and will expeditiously ship or remove all merchandise brought to said water front.”</p> <p>June 12th, 1902, he executed a lease of the southerly half of the easterly portion of the premises, lying between the driveway and the East river, to one Jackson, and on July 1, 1902, leased the northerly half of such premises to one Wright. After the execution of the leases to them, Jackson and Wright each obstructed the association’s access to the dock across the premises leased by them respectively, and each claimed an exclusive right to that portion of the dock covered by his lease.</p> <p>The Stolts association thereupon brought an action against Tuska, Jackson and Wright to have the alleged right of way, contained in its lease, established and located and to obtain an injunction restraining the defendants frorn interfering with its access over such right of way.</p> <p>Upon an appeal from an order refusing to grant an injunction pendente lite, it was</p> <p>Held, that the lease to the plaintiff secured to it access to and the use of the dock and that such grant was not void for indefiniteness, although the right of way was not described or definitely located;</p> <p>That if the easement, secured to the plaintiff in the lease, required that it should have a right of way over the premises leased to Jackson or Wright, the rule of inverse order of alienation would apply and the burden of such easement would fall upon the defendant Wright;</p> <p>That if that part of the dock which was leased to the defendant Wright should prove inadequate for the requirements of the plaintiff it was also entitled to use the portion leased to the defendant Jackson, so far as necessary;</p> <p>That the recording of the lease to the plaintiff was constructive notice to Wright and Jackson of the plaintiff’s easement in the premises leased to them;</p> <p>That as the plaintiff had not shown that reasonable access to the dock would not be afforded by the removal of the fence at the northerly end of the dock along the line of One Hundred and Sixth street, the plaintiff should be granted an injunction pendente lite restraining the defendants from obstructing the plaintiff’s access to the dock from One Hundred and Sixth street by fences or otherwise, and from using so much of the entire dock as should be necessary for the purposes of receiving materials and shipping manufactured products.</p>

<p>Qertiorari—application therefor in the first district — damage from change of grade of a street—limitation of the time for the presentation of claims therefor—when the “six months" mentioned in chapter 537 of the Laws of 1893, as amended by chapter 567 of the Laws cf 1894, begin to run.</p> <p>An application for a writ of certiorari may, in the first judicial district, be made to a justice of the Supreme Court at Chambers. The granting of such application is, nevertheless, the act of the court, and should be entered in the minutes of the clerk, but a failure to make such entry will not invalidate the writ. The Legislature, when authorizing a recovery of damages for a change of grade of a city street, may prescribe a limitation of time within which claims therefor must be filed.</p> <p>Chapter 537 of the Laws of 1893, authorizing the recovery of damages sustained by reason of the change of the grade of certain streets in the city of New York, pursuant to chapter 721 of the Laws of 1887, contained a clause requiring claims to be filed “ within six months after the first public meeting of” the commissioners appointed thereunder. Thereafter the Legislature enacted chapter 567 of the Laws of 1894, which, while it purported to be an amendment of the act of 1893, and re-enacted all of its provisions, including that in respect to the time for the filing of the claims, contained other provisions enlarging the jurisdiction of the commissioners, and authorized a recovery for changes of grade made pursuant to other acts than chapter 721 of the Laws of 1887.</p> <p>Held, that it was the intention of the Legislature, when enacting the amendatory act, to authorize the filing of new claims after its passage, and that the limitation against the filing of new claims began to run from the time of the first public meeting held by the commissioners, pursuant to the formal notice given under the amended act, and not from the time of the first meeting held by the commissioners after the enactment of the amendment.</p> <p>Van Brunt, P. J., dissented.</p>

<p>Assessment insurance companies — right of to change the rate of assessment—what constitutes the contract of insurance — acquiescence by director's in a new by-law — delegation to director's of the power to determine when by-laws shall take effect —. beneficiary concluded by the failure of the member to dissent—unfair discrimination against certain certificate holders.</p> <p>It is essential to the existence of assessment insurance associations 'that, with varying circumstances and with greater demands for death losses, they should he permitted to change the rate of assessment as well as the method of paying death claims.</p> <p>The application for membership, the certificate of membership and the by-laws form the contract by which the member’s rights are to be determined.</p> <p>Where an assessment insurance association adopts by-laws, changing the method of levying assessments and the method of paying death claims, and provides that such by-laws shall take effect at such time as the board of directors shall deem expedient, the passage of a formal resolution of adoption by the directors is unnecessary. It is sufficient that the amended by-laws were, in fact, actually accepted and adopted in practice by the board of directors directly after their passage, and that thereafter all assessments were made and all death losses paid in accordance therewith.</p> <p>The power given to the board of directors to determine when the amended by-laws shall take effect does not constitute a delegation by the association to * the board of directors of the association of the power to make and amend the by-laws.</p> <p>Where a person, who was a member of the association at the time the amended by-laws were adopted, continues, without dissent, for over three years, and until his death, to pay assessments levied pursuant to the amended by-laws, he . will be presumed to have assented to the. modification of his contract which . the amended by-laws purported to make, and an objection on the part of his beneficiary to such modification of the contract will not be entertained.</p> <p>Oil October 1, 1892, when the Insurance Law took effect, the by-laws of an assessment insurance association provided that the net avails of the moneys received'fordues and-assessments during each period of two months should be divided, at the expiration of that period, pro rata, after deducting the necessary expenses of the association, among the beneficiaries of the members who had died during that period, “which sum so divided shall constitute the entire amount due upon any certificate thus terminated by the death of such member.” Section 210 of the Insurance Law provided that the association should pay the full amount of all certificates thereafter issued, and,'in order to comply with this statutory requirement, the association amended its by-laws so as to provide that the association should pay the maximum amount of the certificates issued after September 80, 1892, but that the amounts payable upon certificates in force September 80, 1892, should be determined in the same manner as was specified in the previously existing by-laws.</p> <p>Held, that the amended by-laws were not void, on the ground that they unfairly discriminated against holders of certificates issued prior to September 30, 1892, as long as the additional payments made upon the certificates issued after September 30, 1892, did not come from any fund to which the holders of older certificates were entitled.</p> <p>Parker, P. J., dissented.</p>

<p>Appeal by the defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, from a judgment of the Supreme Court in favor of the plaintiff, entered.in the •office of the clerk of the county of Broome, on the 25th day of February, 1902, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 18th day of February, 1902; denying the defendant’s motion for a new trial made npon the minutes.</p> <p>This action is brought for negligence. On or about October 11, 1895, the plaintiff, who was not an employee of the defendant, was loading a car of bark upon one of the defendant’s switches. While thus engaged, the defendant’s employees ran one of its engines with great force against the car, causing the injuries which it is claimed the plaintiff suffered. Plaintiff’s allegations as to his injuries are as follows: “ The plaintiff received a direct omental hernia of the left ■side, together with a developing femoral hernia aneurism, and the plaintiff also received possibly a slight concussion of the spine, and sprain and injuries to the muscles and ligaments of the back, by which the plaintiff has at all times since said injuries been entirely incapacitated from doing work, and will probably through his future life be incapacitated from doing any work, and suffered from said injury, and will continue to suffer from said injury great pain, and will suffer from said injury probably throughout his life, and as plaintiff is informed and believes, he is liable at any time to lose his life as the direct result of said injuries, and particularly the ' development- of said ruptures and aneurisms, received through the defendant’s negligence as hereinbefore described, and that the plaintiff has also been put to considerable expense for medical attendance on account of said injuries and will be in'the future put to con-</p> <p>■ siderable expense on account thereof, by all of which the plaintiff has suffered damage in the sum of Twenty-five thousand dollars-.($25,000), for which he demands judgment, with the costs of. this action.” The answer contains practically a general denial.</p> <p>Early in the trial of the case the plaintiff offered to prove that-his sexual organs had been affected as a consequence of the injury* and the following proceedings were had : “ Q. I will call your attention to another thing; how have your sexual organs been affected ?' [Objected to as incompetent and improper and not embraced ■ within'-the claims of the complaint; he has enumerated the injuries he did-receive in the complaint, and he is confined to that and cannot now introduce new elements of which there is no claim whatever made in the complaint.] Plaintiff’s Counsel: The. defendant cannot be surprised, for this testimony was given upon the other-trial without objection, And the complaint alleges a concussion of the spine, and from that concussion of the spine we shall show by medical evidence that this has resulted : this impairment and degeneration of the nervous section of the back and the nervous system of the plaintiff and proceed directly from that to affect the' nerves-which control and support the sexual organs; that the injury to these nerves has resulted in this impairment and injury to the sexual organs, a direct consequence and connected with the injury to the spine. The Court: Objection overruled. [Exception taken by defendant’s counsel.] The Court: This evidence is received conditionally ; unless you show this was the result of the injury alleged in the complaint, I shall strike it out. Plaintiff’s Counsel: Certainly. Q. Now answer the question, how have your sexual organs, been affected; have you been able to cohabit with your wife since this injury ? A. No, sir. [Objected to as before. Objection overruled. Exception taken.] * * * Defendant’s Counsel: All this testimony may be taken under my objection and exception. The Court: Tes. Plaintiff’s Counsel: This line of evidence:'may be considered under your objection and exception.”</p> <p>Plaintiff recovered judgment in the case and a motion for a new trial was denied. From the judgment and order denying the motion for a new trial this appeal was taken.</p>

Appeal by The City of Troy from an order of ■ the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 4tli day of April, 1902, directing that the appellant be substituted as defendant in the action in the place and stead of The Village of Lansingburgh.

Appeal by the defendant, William Starr Miller, from a judgment •of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 26th day of February, 1902, upon the decision of. the court rendered after, a trial at the Ulster Special Term, the parties having waived a trial by jury. The defendant was the owner of a residence at Rhinecliff, upon the.

<p>Removal of a roundsman from the E Imira police — it maybe done for economic reasons ■—loss of his pension—effect of the abolition of the office.</p> <p>The police board of the city of Elmira, in the interests of economy arid for the purpose of keeping within the annual appropriation for the police department, may abolish the position of day roundsman and discharge the incumbent thereof from the police force, and is not obliged to make the appropriation sufficient to pay all the members of the police force, by reducing salaries, where it does not appear that the salaries paid are excessive.</p> <p>Section 183 of the city charter (Laws of 1894, chap. 615), providing, “ No member of the regular police force shall be removed therefrom except by the concurring vote of at least four members of the board of police at a stated or regular meeting of said board, and except for inefficiency, misconduct or neglect of duty, and after reasonable notice of the charges against him and an opportunity to be heard in his defense before said board,” has no application to a removal for such a cause.</p> <p>The roundsman has no such vested right in a police pension fund, which has been created by the Legislature and not by his voluntary contribution, as will prevent his discharge when necessary for economic reasons.</p> <p>Semble, that the mere abolition of the office of roundsman would not, of itself, operate to discharge the roundsman from the police force but would only reduce him to the rank of a regular police officer.</p>

Appeal by John A. Carnduff from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Fulton on the 16th day of July, 1902, making him a party defendant to the action and authorizing the plaintiff to file and serve a supplemental summons and complaint in the action.

Appeal by the plaintiff, Carrie Lashaway, from an order of the Supreme Court, made at the Washington Trial Term, and entered in the office of the clerk of the county of Washington on the 24th day of March, 1902, setting aside a verdict of $250 rendered by the jury in favor of the plaintiff and granting a new trial of the action.

<p>Contract — a promise to repay one who without obligation or request so todo has paid another’s debt — not sustainable as a ratification by a principal of an agent’s ads.</p> <p>Where a debt is paid by a person under no obligation to the creditor and who-had not been requested to do so by the debtor, and thereafter the debtor . promises to reimburse such person for the moneys expended in his behalf, the promise is not enforcible against the debtor.</p> <p>In such a case, liability on the part of the debtor cannot be predicated upon the theory of a ratification by a principal of the acts of an agent, as such a ratification only operates to make the acts of the agent the acts of the principal, and does not create any liability upon the part oí the principal to the agent.</p>

Appeal by the plaintiff, The Burbanks Hardware Company, from •a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 13th day of May, 1902, reversing a judgment-rendered by a justice of the peace in favor of the plaintiff.

Appeal by the defendant, the Hudson Valley Railway Company,, from an order of the Supreme Court, made at- the St. Lawrence Special Term and entered in the office of the clerk of the county of Saratoga bn the 24th day of June, 1902, enjoining the defendant from constructing a crossing over the plaintiff’s street railway tracks, in the village of Ballston Spa during the pendency of the action.

<p>Offer by an administrator to have a rejected claim determined on the settlement of his accounts — time within which a creditor must file a consent—delay in giving notice of the rejection of a claim.</p> <p>Under section 1833 of the Code of Civil Procedure, where an administratrix rejects a claim against her decedent’s estate and within six months thereafter files a written consent that the claim shall be heard and determined upon the judicial settlement of her accounts, a consent filed by the creditor fourteen months after the rejection is ineffective.</p> <p>The failure of the creditor to either file the consent or sue within six months bars his claim under the short Statute of Limitations.</p> <p>The failure of an administratrix to give notice of the rejection of a claim against the estate of her intestate, for a considerable time after its presentation, does not of itself operate as an acceptance of the claim which will preclude the administratrix from thereafter rejecting it.</p>

<p>Appeal by the defendant, George W. Anderson, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 6th day of September, 1901, upon the decision of the court rendered after ' a trial at the Broome Special Term, with notice of an intention to bring up for review upon such appeal an interlocutory judgment of the Supreme' Court in favor of the plaintiff, entered in the office . of the clerk of the county of Broome on the 19th day of August, -1898, upon the decision of the court rendered after a trial at. the Broome Special Term.</p> <p>This judgment determined the terms of the partnership existing between the defendant and Hiram Lake, plaintiff’s intestate, prior to January 13, 1896, when Hiram Lake died, and further stated the account between the parties. In the complaint the plaintiff alleged, first, her appointment as administratrix; “ II. That on or about April 1st, 1892, the defendant formed a copartnership with the said Hiram Lake, to-be carried on at Brew-ster, Putnam County, N. Y., under the firm name and style of Anderson & Lake, on the following terms and conditions, in substance: The said defendant, being related to said Lake and being desirous of helping him in a business way, agreed that he would lend the use of his name and credit to</p> <p>the firm and would give a little time to the concern, for which he was to receive' a reasonable compensation. The said Lake was to conduct the business and devote all his time to it and have all the ■profits therefrom.</p> <p>“ III. That accordingly the business was begun at that time and so continued until the death of said Lake, whereupon, as surviving partner,, the defendant took possession of the assets,' books and papers of said firm and has substantially disposed of the same, and now has in his hands many thousand dollars of the assets of said. partnership which rightfully belong to this plaintiff.”'</p> <p>The. demand was for an accounting, the appointment of a receiver, and general relief. In the answer of the' defendant, the partnership with Hiram Lake was admitted. The terms thereof as alleged in the complaint were denied, and it'was alleged that they were to share equally in the expenses and profits. The answer further alleged that upon the death of Hiram Lake, the defendant took possession of the assets, books and property of said firm, and thereafter in-or about March,-1896, sold and disposed.of the partnership property and business, and that defendant has diligently endeavored to close up the partnership matters but has not yet been able to do so. The demand of the answer is that the accounting be delayed until defendant can have a reasonable time to close up the partnership affairs and business and until such time as he is able to make a full accounting to said plaintiff, and that the said complaint be .dismissed, with costs.</p> <p>The action was commenced about the loth of September, 1896. After issued joined, and upon the 7th day of September, 1897, the parties entered into a stipulation, of which the following is a copy :</p> <p>“SUPREME COURT, BROOME COUNTY.'</p> <p>“ Isabella L. Lake, as Administratrix of the Goods, Chattels and Credits, of Hiram Lake, Deceased, Plaintiff, against George W. Anderson, Defendant.</p> <p>" It is hereby stipulated and agreed by and between the attorneys for the respective parties, plaintiff and defendant, subject to the conditions hereinafter set forth, that the above action be referred to H. L. Beach, Esq., an attorney and counselor at law, Binghamton, to take and report to the court the testimony of the witnesses which may be produced in the above action by either party, ■ as to the interest of Hiram Lake, plaintiffs intestate, or the interest of said plaintiff, and the interest of said defendant in the alleged partnership mentioned and referred to in said action.</p> <p>“ And that said defendant render to said referee a full account of his proceedings as surviving partner of Hiram Lake, deceased, and that said referee take and report the testimony in reference to said account.</p> <p>“ This stipulation is made subject to the following conditions: And it is hereby stipulated that the defendant’s attorney may have the privilege of moving at any Special Term of this court, within this Sixth Judicial District, to dismiss the plaintiff’s complaint, the same as though the motion was made at the trial, on the grounds that the same does not set forth facts sufficient to constitute a cause of action. At any time before said testimony is taken by said referee, or at his election, said defendant may make said motion before said referee, to be determined by this court on the coming in of said referee’s report.</p> <p>“ Dated Sept. 7, ’97.</p> <p>“WALES & WILBER, Plff’s Attys.</p> <p>“ J. C. & B. I. TALLMADGE, Defts AttysS</p> <p>The matter was brought to trial before Referee Beach, who-reported the evidence to the court, whereupon Justice Lyon, at Special Term, found the terms of the partnership to be that Hiram Lake was to receive a reasonable compensation for his time, and, in addition, one-half of the profits of the business. An accounting was thereafter had before the said referee, who found the defendant indebted to the plaintiff in the sum of $2,532.80, for which judgment was ordered, with costs and an extra allowance. From this judgment defendant has appealed.</p>

<p> Action to set aside a sale and a final judgment in an action for the partition of land, . brought after the denial of two motions, made in the partition action, for a postponement of the sale on the same grounds—the complaint is demurrable—relief must be sought in the action for partition. </p> <p>- The complaint in an action to set aside a sale in partition and a final judgment therein alleged that the plaintiff had in July, .1897, brought an action of partition against the defendants, and that after the action was commenced she learned that her mother had transferred to the defendant Bertha E. De Land certain personal property, and that after the interlocutory judgment of partition and sale had been entered, the plaintiff brought an action to set aside the transfers made to such defendant, and to obtain an adjudication that she was the owner of a one-half interest in such personal property; that she then made a motion to have the partition sale postponed, alleging, in substance, -that in order to protect her interests in the property it would be necessary for her to bid at .the sale and that she had no property other than her interest in the premises sought to be partitioned and in the personal property then in litigation; that the court denied the motion upon the ground that the sale of the real estate could not be suspended while the plaintiff was trying to establish her right to other property; that the plaintiff appealed from the- order and moved for a stay pending the appeal, which was denied. The complaint did not disclose what disposition was made of the motion on appeal.</p> <p>At the sale, which was held September 15, 1898, the entire real estate was bid in by the defendant De Land. The plaintiff was a bidder at the sale, and alleged ' ■ that if she had had possession of her claimed interest in the personal property she would have been willing to bid more than the sum at which it was • bid in by the defendant De Land. The sale was confirmed October 8, 1898,</p> <p>, and final judgment was entered. The complaint did not allege that the plaintiff opposed the confirmation of the sale or the entry of final judgment, or that she had at any time made any application in the partition" action to set aside the sale for inadequacy of price, or for any other cause..</p> <p>In March, 1899, the plaintiff recovered judgment in the action to set aside the transfers of the personal estate. This judgment was affirmed by the Appellate Division, and an appeal was taken to the Court of Appeals, where-fit is now pending undetermined.</p> <p>The present action was brought November 11, 1901, and the complaint alleged that the defendant De Land still owned the property bid off at the sale for $31,200; “that if a sale of said real estate is ordered after plaintiff’s judgment (in the personal action) is affirmed (in the Court of Appeals), plaintiff will bid-$40,000.00, or upwards, for said real estate.”</p> <p>The relief sought was that the final judgment, the order of confirmation and the sale be vacated and a resale ordered, and that the purchaser account, for the rents, profits and improvements oí the property since September 15, 1898.</p> <p>Held, that the complaint was demurrable for the reason that the questions sought to be presented in the present action had been determined adversely to the plaintiff on two several applications in the partition suit for a postponement of the sale therein and for the further reason that if the plaintiff was entitled to such relief she should have obtained it in the partition action, and was not entitled to institute an independent action therefor.</p>

<p>Appeal by the plaintiff, Howard McKinlay, from judgments of the Supreme Court in favor of the defendants Gertrude E. Green and others, entered in the office of the clerk of the county of Fulton in the- months of June and July, 1902, upon an order granted at the Fulton Trial Term, and entered in said clerk’s office on the 24th day of June, 1902, directing the dismissal of the complaint on the ground that the facts stated therein were insufficient to constitute a cause of action.</p>

<p>Appeal by ¡Nathan L. Miller, Comptroller of the State of ¡New York, from a decree of the Surrogate’s Court of Saratoga county, entered in said Surrogate’s Court on the 24th day of March, 1902, adjudging the estate of the deceased to be exempt from taxation under the law relating to taxable transfers of property.</p>

<p>. Appeal by Albert Levi from an order of the Supreme Court, made at the Fulton Special Tprm and entered in the office of the cleric of the county of Warren on the 28th day of August, 1902,' on the motion of Walter McEwan, a junior attaching creditor, setting aside a sale to the said Albert Levi of certain perishable property belonging to the defendant Goldberg, and directing a resale thereof, on the.ground of collusion and fraud evidenced by the inadequacy of the purchase price.</p>

<p> Attestation clause—it does not establish the due execution of a will, where the testimony of the subscribing witnesses contradicts its terms. </p> <p>While an attestation clause annexed to a will may, in the event of the failure of the subscribing witnesses to recollect what took place at the time of the execution of the will, be received in support of the probability of the due execution thereof, such a clause is not sufficient to prove the due execution of the will as against the distinct recollection of both the subscribing witnesses that the formalities required by the statute were not observed at the time the will was executed.</p>

<p>Will—trust for a father until a person named in the wiU arrives at thirty-five, in _ ease of the father’s prior death the property to go to Ms issue — if the father dies-before thirty-five, an absolute estate passes to Ms issue.</p> <p>A testator by his will bequeathed and devised his residuary personal estate and all of his real estate to his executors upon the following trusts: “ To hold one-third of my said personal estate and pay over the income thereof to my said wife during her lifetime, and after her death to divide the income of said one-third, and eventually the said one-third between my two sons in the same manner as hereinafter provided concerning the remaining two-thirds,</p> <p>“As to the remaining two-thirds of my personal estate, after the payment of the legacies above provided for, and also as to all my real estate, subject as. aforesaid to the dower right of my wife, I direct my said executors and executrix to hold-one-half thereof as a fund for the benefit of each of my said song, respectively, to collect the rents, income, interest and profits of each said share, and to pay to or for the benefit of each said son the net income of his said share as it accrues until the younger of my said sons shall have arrived at the ■ age of thirty-five years (or until the later distribution of my estate), at which.' time, with the consent of all my said executors or the survivor of them and not otherwise, they shall pay over and assign to each of my said sons respectively his said share of my estate. But the trusts provided in this will shall in any event terminate not later than upon the death of two of the three beneficiaries named herein.</p> <p>“ Third. In case of the death of either or both of my said sons, leaving issue, before the distribution of my estate as aforesaid, I direct that the share of either or each one so dying, both income and principal, be paid and distributed equally to and among his said issue.</p> <p>“In case of the death of either one of my said sons without issue surviving; before the distribution of my estate, I direct that the share of the one so dying be held in trust for and paid over to the surviving son in the same manner as hereinbefore provided.</p> <p>“ And in case of the death of both my said sons without issue surviving, before my said wife, and before the distribution of my estate as aforesaid, I give, devise and bequeath all my property, both real and personal, to my wife.”</p> <p>The testator was survived by his widow and his two sons. The elder son married shortly before the testator’s death, and died before reaching the age of twenty-five, leaving a widow and an infant son,-born after the testator’s death. The testator’s other son never married.</p> <p>In an action for partition, brought by such infant son during the lifetime of the testator’s widow and that of the testator’s surviving son and before the latter had reached the age of thirty five years, it was Held, that, on the death of the plaintiff’s father, the trust created for his benefit terminated, and the trust property vested absolutely in the plaintiff, freed from the trust.</p>

<p> A notice of appeal must be served upon a co-defendant to whom the judgment requires the defendant appellant to pay money—where the notice has been served on the plaintiff and the cleric the court may allow it to be served on the co-defendant. </p> <p>Where a creditor of a decedent brings an action to set aside, on the ground of fraud, a transfer of personal property made by the decedent during his • lifetime, making parties thereto the alleged fraudulent transferee and the decedent’s administrator, and a judgment is rendered directing the alleged fraudulent transferee to pay the proceeds of the property transferred to the decedent’s administrator, the latter is a necessary party to an appeal, by the fraudulent transferee, from the judgment.</p> <p>Where, however, the fraudulent transferee serves the notice of appeal upon the plaintiff and the clerk of the court, but neglects to serve it upon her co-defendant, the court has power, under section 1303 of the Code of Civil Procedure, to relieve the fraudulent transferee from the consequence of her neglect and to permit her, upon terms, to perfect her appeal.</p>

<p>Appeal by the defendants, Susan A. Lyon and Gyrus P. Hatch, as executors, etc., of Charles Lyon, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiffs David J. Hanna and others, entered in the office of the clerk of the county of Washington on the 18th day of December, 1901, upon the decision of the court rendered after a trial at the Saratoga Special Term, with notice of an intention to bring up for review upon such appeal an intermediate order, bearing date the 28th day of March, 1900, and entered in the office of the clerk of the county of Washington, making Clarissa Piser and Cora M. Arnott, as administratrix of William B. Maynard, deceased, parties plaintiff to the action and amending the complaint accordingly.</p>

<p>Appeal by the defendants, Winfield Wilson and others, from an interlocutory judgment of the Supreme Court, in favor of the plaintiff and the defendant Schuyler S. Wilson, entered in the office of the clerk of the county of Montgomery on. the 24th day of June, 1902, upon the decision of the court rendered after a trial at the Montgomery Special Term.</p> <p>Jacob Wilson died, the owner of the real property described in the complaint, on the 15th day of September, 1838. He left a will, dated May 18, 1835, which was duly probated on the 26th day of November, 1838. The real property in question is a farm and wood lot and was devised by the 4th paragraph of the will as. follows:</p> <p>“ Fourthly. I give, devise and bequeath to my son Ira the farm on which I now reside and my wood lot near Starlings above mentioned, except thereout on my said farm where the burial ground now is a piece of forty feet square which is forever to be devoted to the sole purpose of a burial place for myself and my connections and descendants. To have and to hold the same to him for life, and in case he should die leaving lawful male issue then to such male issue and to his or their heirs and assigns forever, subject to the right herein given to my said wife, and also subject to the powers and authorities herein given to my executors.”</p> <p>When the will was executed Ira Wilson was about eight years old. He continued to live on said farm during his life and died on the 27th day of May, 1901. He left him surviving his widow, Sarah Jane Wilson, and three sons, the defendants Winfield Wilson, Jay S, Wilson and líichard II. Wilson; also the plaintiff, Edward 0. Wilson, a grandson and the only heir at law of a deceased son, Ira Wilson, the defendant Schuyler S. Wilson, a grandson and the only heir at law of another deceased son of Ira Wilson, Sr., also one daughter, Lydia Wemple, who is still living. She'has three children, all sons, Several conveyances were received in evidence affecting the interests of the parties in the real property, but they are immaterial so far as they affect the question at issue herein. This action is brought by the plaintiff for the partition of said real property, Lydia Wemple and her children are not made parties to the action. The plaintiff and the defendant Schuyler S. Wilson claim that they are “ lawful male issue ” of Ira Wilson and as such aré each entitled to an undivided one-fifth part of the real property described in the complaint. The appellants claim that under the will of Ira Wilson Ms. “ lawful male issue ” are limited to the male children of Ira Wilson living at the time of his decease, and that respondents have-no interest in said real property; The decision of the court was in favor of the contention of the plaintiff and said Schuyler S. Wilson, and from, the interlocutory judgment entered upon such decision this appeal is taken.</p>

<p>Appeal by the defendant, Bosephe Wilson, from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 3d day of June, 1902, directing that all proceedings on the part of said defendant be stayed until the payment of twenty dollars costs of a former motion and ten dollars costs of the motion upon which the order was made, and that the answer of said defendant be stricken out in the event of such motion costs not being paid within three days, and also from an order made at the Otsego Special Term and entered in said clerk’s office on the 10th day of June, 1902, staying all proceedings in the action on the part of said defendant, and striking out her answer in the action.</p>

<p>New trial — when granted because the verdict is contra/vy to the evidence — direction of a verdict, when proper.</p> <p>Á judge, presiding at a jury trial, may set aside the verdict and direct a new trial, although the case was one that was necessarily submitted to the jury, and in many cases even. Where the evidence given was sufficient to sustain the verdict. ■ ■</p> <p>Where the right of trial by jury exists and the evidence presents an actual issue of fact; the court has no power to direct, a verdict. ■ ■</p> <p>The court, however, may direct a verdict if there is no evidence, or insufficient evidence,' to support an opposite verdict, or if the proof which has been introduced on one side is conclusively answered, so that no question as to credibility .and no issue of fact remains.</p> <p>Appeal by the plaintiff, John H. Larkin, as administrator, etc., of Mary Larkin, .deceased, from an order of the Supreme Court, made at the Albany Trial Term and entered in the office of the clerk of the county of Albany on the 13th day of January, 1902,. setting aside a verdict theretofore rendered in favor of the plaintiff and directing a new trial of the action,</p>

<p>Appeal by the defendant, Augustus Loomis, from a judgment of the County Court of Madison county in favor of the plaintiff, rendered on the 21st day of March, 1901, upon the verdict of a jury convicting the defendant of- the crime of burglary in the third degree and grand larceny in the second degree, and also from an order bearing date the 21st day of March, 1901, and entered in the office of the clerk, of the county of Madison, denying the defendant’s motion for a .new trial.</p>

Appeal by the plaintiffs, Taylor C. Collins and others, as commissioners of highways of the town of Amsterdam, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office -of the clerk of the county of Montgomery on the 28th day of July, 1902, as amended by an order entered in said clerk’s office on the 30th day of July, 1902, vacating a temporary-injunction theretofore granted in the action.

<p> Nuisance—piling on land molding sand which, is blown upon adjoining premises. </p> <p>Where a dealer in molding sand stores large piles thereof upon land owned by her, the blowing of such sand upon adjoining property becomes a nuisance and can be abated as such where the resultant injury to the adjoining property is so great that it visibly diminishes its value and materially interferes with physical comfort and the enjoyment of the property.</p> <p>If, however, the blowing of sand upon the adjoining property is so slight and trivial as not to interrupt the reasonable enjoyment thereof, it does not constitute a nuisance.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 12th day of July, 1902, directed to John T. McDonough, as Secretary of State, and others, constituting the printing board, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in the matter of awarding to the Argus Company the legislative printing for the year commencing October 1, 1902, and relating to the contract entered into therefor with said Argus Company.</p> <p>The said printing board, pursuant to chapter 507 of the Laws of 1901, gave due notice that, until the 5th day of June, 1902, at eleven o’clock, a. m., they would receive sealed proposals for the whole of the legislative printing for one year from October 1, 1902. Said notice contained, among other things, a provision as follows: “Proposals must be made upon blank forms, which forms will be furnished upon application to either of the undersigned.”</p> <p>The Argus Company, pursuant to said notice, procured from the printing board blank forms which included a blank form for a guaranty as follows: “-hereby guarantee that if the foregoing bid for the public or legislative printing is accepted that-will enter into a contract in compliance with said proposals and give the necessary security.”</p> <p>Six bids were received by said printing board. All of these bids were upon blanks furnished by the printing board. The blank form for the guaranty so furnished by the printing board was used by each bidder. The blank spaces therein were properly filled, and in each case the guaranty was signed by a person who was duly certified to be a freeholder and able to. make good his guaranty. Added to the guaranty signed on behalf of the relator were the words “ and make due and proper performance of the contract.”</p> <p>No question is raised in this court in regard to the notice or bids, except that it is claimed by the relator that the form of guaranty used by the bidders other than itself does not comply with the statutory requirement.</p> <p>; The printing board determined that the bid of the Argus Company was $32,959.56 less than either of the other bids, and the contract was awarded to the Argus Company as the lowest bidder. The Argus Company has been made a party defendant in this proceeding.</p>

<p>Tam deed—effect of section 132 of the Tam Law as a short statute of limitations—r proof, other than the record of the deed, when required to set the statute running—■ action for forfeiture imposed for cutting timber.</p> <p>Section 132 of the Tax Law (Laws of 1896, chap. 908), relative to the effect of a tax deed executed hy the Comptroller of the State of New York, which has been recorded for two years, is a statute of limitations as well as a curative law, and, so far as it is a statute of limitations, the doctrine that jurisdictional defects cannot he cured by retrospective legislation has no application.</p> <p>Assuming that, as against the true owner of the property, it would he necessary for the People of the State of New York, claiming under deeds of the character set forth in section 132 of the Tax Law, to show, hy evidence other than the records of the deeds, that the statute, as a statute of limitations, had been set running against such true owner so as to destroy his title, such a course need not he adopted in an action brought by the People of the State of New York under section 280 of chapter 488 of the Laws of 1892, added hy chapter 385 of the Laws of 1895, to recover forfeitures from, the defendant for cutting timber from the lands described in the tax deed, where the defendant isnot shown, to have title to the property and does not claim under one shown to have had title thereto.</p> <p>The right of action for the forfeitures was not taken away by chapter 114 of the Laws of 1896, amending the act under which the action was brought.</p>

Appeal by the plaintiff, Matthew Drohan, from an interlocutory judgment of the Supreme Court in favor of - the defendant, entered in the office of the clerk of the county of Albany on the 13th day of March, 1902, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining the defendant’s demurrer to the complaint, and also, as stated-in the notice of appeal, from the decision or order pursuant to which the interlocutory judgment was entered.

<p>Appeal by the defendant, William Reynolds, from an order .of the Oounty Court of St. Lawrence county, entered in the office of the clerk of the county of St. Lawrence on the 8th day of January, 1902, setting aside the taxation of the defendant’s costs and directing that costs be taxed in favor of the plaintiff.</p> <p>This action was brought in a Justice’s Court in St. Lawrence county, and judgment was rendered therein in favor of the plaintiff against the defendant on the 14th day of May, 1901, for $188.05 damages, besides costs.</p> <p>One O., an attorney and counselor at law, appeared in the Justice’s Court as attorney for the plaintiff. On the 31st day of May, 1901, defendant served a notice of appeal demanding a new trial in the St. Lawrence County Court upon the justice by whom the judgment was rendered. On the same day said O. signed an admission of service of notice of appeal as follows: “ Service of notice of appeal of which within is a copy is admitted this 31st day of May, 1901.</p> <p>“ HANNAH E. McLEAR, by</p> <p>“ A. W. Orvis, her Atty"</p> <p>O. swears that he signed the admission at the request of defendant’s attorney, but that he then told him that such “ admission would b.e of no use as the plaintiff had not authorized him to act for her.” Defendant’s attorney denies that O. then disclaimed any authority to act for plaintiff. 0. sent the notice of appeal to the plaintiff by mail, but until October fifth she never spoke to O. about the case, nor communicated with him in any manner. On the fourteenth of June a former stenographer in the office of the attorney for the defendant served upon O. an offer to allow judgment to be taken against him for $100, with costs, and asked for an admission of service of the same. O. swears in regard to the same that, “ I then told him that I had nó authority to act for Mrs. McLear, that she had not employed me since the trial in Justice’s Court, and that, I was not her attorney, and I refused to sign the admission and I told him that Mrs. McLear was in the village and that he had better serve the offer on her, and be sure of the right person.” This statement is substantially admitted by the man who served the offer of judgment on O.</p> <p>On the 5th day of October, 1901, the attorney for defendant served a notice of trial on O. and requested him to admit service thereof. O. swears in regard to the same, “ I again told him that I was not employed by Mrs. McLear in the matter and that I was not her attorney; that she had never spoken to me about acting for her upon the appeal and that for all I knew she might have employed another attorney.” This statement is admitted by plaintiff’s attorney. Notice of trial was served on the plaintiff and subsequently she came to O. and employed him to try the case in the County Court, and O. then went to the defendant’s attorney and told him that he was then authorized to attend the case and act for Mrs. McLear as her attorney. The case was again tried in the County Court and resulted in a verdict in favor of the plaintiff in the sum of sixty dollars. Costs were taxed in favor of the defendant and an application was then made to the County Court to have the taxation of costs in favor of the defendant vacated and set aside and to have costs taxed in favor of the plaintiff, which motion was granted, and from the order so granting such motion this appeal is taken.</p>

Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 18th day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 13th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes. The action is on a policy of life insurance.

Appeal by the defendant, The Erie Fire Insurance 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 9th day of Hay, 1901, upon the verdict of a jury, 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 a case containing exceptions.

Appeal by the defendants, Sandy Casler, as sole surviving executor, etc., of Josiah Snell, deceased, 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 Montgomery on the 22d day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of February, 1902, denying the defendants’ motion for a new trial made upon the minutes, with notice of an…

<p>■ Appeal by the defendant, Edmund De Forest, from a judgment of the County Court of Otsego county, entered in the office of the clerk of the county of Otsego on the 13th day of November, 1901, affirming a judgment rendered by a justice of the peace.</p> <p>This action was commenced injustice’s Court to recover damages for a breach of warranty in the sale of three cows to the plaintiff by the defendant. The case was tried before a jury, resulting in a judgment for the plain tiff," from which judgment the defendant appealed to the County Court. The County Court affirmed such judgment, with costs, and from the judgment of affirmance this appeal is taken.</p>

Appeal by the Consolidated Rosendale Cement Company and others, the defendants in the first above-entitled action, from an order of the Supreme Court, made at the Ulster Special Term, bearing date the 17th day of May, 1902, and entered in the office of the clerk of the county of Ulster, restraining the defendants during the pendency of the action from exacting from the plaintiff a greater rate of toll than four cents a ton per mile for the transportation of merchandise over…

<p>Appeal by Henry Y. Canfield* judgment creditor in the above-entitled proceedings, from so much of an order of the County Court of Delaware county, entered in the office of the clerk of the county of Delaware on the 25tli day of January, 1902, as adjudges that certain moneys in the hands of the judgment debtor are exempt from the claims of creditors and denies the motion of said judgment creditor that such moneys be applied for his benefit, and also an appeal by Leroy Wyman, the judgment debtor in the above-entitled proceedings, from so much of said order as denies his motion to set aside the order for examination theretofore granted in this proceeding, and the service of a copy of the order and affidavit upon the judgment debtor.</p> <p>The county judge of Delaware county, on September 13, 1891, made an order that the judgment debtor, Wyman, appear in proceedings supplementary to execution, before a referee on September twentieth, and answer concerning his property. This order was made upon an affidavit in all respects sufficient to warrant it. On September sixteenth such order and a paper purporting to be a copy of the affidavit was served upon Wyman, The paper was a copy, except that it contained the printed words, “said judgment debtor’s appearance, or,” which had been stricken out in the original, so that the copy was made to read, “ that said judgment was duly rendered upon said judgment debtor’s appearance, or personal service of the summons upon said judgment debtor,” instead of stating, as it did in the original, that it was rendered upon personal service upon the defendant.</p> <p>On the twentieth Wyman appeared specially before the referee, and took the objection that no copy of the affidavit having been served upon him with the order, he was not obliged to be sworn and answer concerning his property. It was finally agreed, however, that he should then be sworn and answer conditionally, and that the question of his liability to do so under the order should be thereafter presented to the county judge, the agreement being that, if the service was held sufficient, the evidence so taken should be deemed operative in the proceedings, but that, if the service was held insufficient to authorize the referee to take the examination, then the evidence so taken should go for naught.</p> <p>On the examination it appeared that, when the order was served upon Wyman, he had just received forty-four dollars for milk he had" sold- to a condensery during the month ending September fifteenth." He resided upon a farm that he rented for twenty-five dollars per month." He had a family consisting of a wife and three children living with him. He worked the farm, and the milk was .“'the proceeds of labor ” from such farm.- The whole of such money .was necessary for the payment of his rent and the support of his family, and his rent was due at the end of each month. He .claimed that such forty-four dollars were exempt under section 2463 of the Code.</p> <p>The referee made a report in accordance, with' the above facts,, and, upon its presentation to the County Court, Wyman asked for a decision that the service was not- sufficient to warrant the examination, and that the order and all the proceedings be dismissed. The court held that the service was sufficient to give the referee jurisdiction to act, and refused to dismiss the proceedings. The judgment creditor asked the court for an order directing the judgment debtor to pay over the forty-four dollars to be applied on his judgment. The court declined to do so, holding that such money was exempt. An order was entered to the above effect, with ten dollars costs against the judgment creditor, Canfield.</p> <p>■ Each of the parties has appealed from so. much of the order as' denies his application.</p>

Appeal by tbe defendant, The Union Bag and Paper Company,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 4th day of June, 1902, upon the verdict of a jury for $2,000 and also from an order entered in said clerk’s office on the 10th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by William S. J. Seymour and Alexander R. Benson from an Order of the County Court of Columbia county, entered in the office of the clerk of the county of Columbia on the 12th day of September, 1902, modifyingan order theretofore entered in the action.

Appeal by the relator, the New York, New Haven and Hartford Railroad Company, from 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 24th day of October, 1902, modifying a writ of certiorari theretofore issued in the proceeding.

Appeal by the defendant, Frederick Eisele, from a final judgment of the Supreme Court in favor of the plaintiff and the defendant Frederick Borgwald, entered in the office of the clerk of the county of Westchester on the 14th day of October, 1901, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the plaintiffs, Apollonia Iiodg.es and another, 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 Riche mond on the 10th day of May, 1902, denying the plaintiffs’ motion to compel Margaret J. Cornell* the purchaser at the foreclosure sale had in the above-entitled action, to complete her purchase.

Appeal by the plaintiff, Joseph Rose, from an order of the Supreme Court, made at the Orange Trial Term and entered in the office of the clerk of the county of Orange on the 13th day of January, 1902, setting aside a verdict for seventy-six dollars rendered by the jury in favor of the plaintiff, and granting a new trial of the action unless the plaintiff should stipulate to reduce the verdict to the sum of two dollars.

Appeal by the defendant, E. Halloway Coe, as executor of the estate of E. Frank Coe, 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 Westchester on the 2d day of August, 1902, granting the plaintiff an extra allowance.

<p>Appeal by the defendant, John 0. Austin, 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 1st day of August, 1902, adjudging the ■ defendant guilty of contempt.</p>

Appeal by the defendant, Frederick FT. Du Bois, from a judg■ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of April, 1902, upon the verdict of a jury, and also from an order éntered in said clerk’s office on the 'Tth day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by Sarah Martin 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 1st day of March, 1902, denying the motion of the said Sarah Martin to vacate a judgment entered in each of the above-entitled actions, which were consolidated and ordered to be tried as one action.</p>

<p>Appeal by the defendant, The Long Island Railroad Company, from a judgment in each of the above-entitled actions in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 24th day of January, 1902, upon the verdict of á jury in each of said actions for $500, and also from an order in each action entered in said clerk’s office on the 21st day of February, 1902, denying the defendant’s motion for a new trial made Upon the minutes.</p>

Appeal by the plaintiff, John J. McGuire, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 3d day of February, 1902, upon tbe dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence, and also from. an order entered in said clerk’s office on the 9th day of January, 1902, denying the plaintiff’s motion for a new trial made upon the minutes. ■

<p>Appeal by the plaintiff, The International Society, from a judgment of the Municipal Court of the city of New York, borough of 'Queens, in favor of the defendant,, entered on the 19th day of March, 1902, upon the verdict of a jury.</p>

Appeal by the plaintiffs, Dora S. Holbrook Brown and others,, 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 Suffolk on the 21st day of March, 1902, granting the motion of the defendant Ann Eliza Fish to strike out certain portions of the. complaint as irrelevant and redundant.

Appeal by the defendants, Theodore L. Arthur and others, from that part of a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 24th day of December, 1900, confirming the referee’s report of sale in a partition suit, which directs the said referee to pay to the plaintiff out of the proceeds of sale a certain sum for moneys advanced by plaintiff for the benefit of said real property; with notice of…

Appeal by the plaintiff, Julius Muth, as trustee of Lulu E. Wuest, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 14th day of January, 1902, dismissing the plaintiff’s complaint on the merits.

<p>Livery stable keeper — his liability as bailee for goods left in his stable.</p> <p>One Bergman’ hired from one Reich, who kept a livery stable, a number of coaches to be used at a wedding entertainment, and at the same time arranged with Reich to take care of such other carriages as should be sent from a disr . tance. Pursuant to this arrangement one McKillpp left two carriages in Reich’s stable to remain during the wedding entertainment, and,' under the ', direction of the person whom he found in charge of the stable, placed in the office of the stable certain personal property contained in the carriages. After-depositing the property in the office McKillop informed Reich, who was then outside of the stable on the sidewalk, that he had left the property in the office- and Reich responded “all right.” When McKillop returned to the stable he-was unable to obtain the property deposited in the office and later made á per-, sonal demand upon Reich therefor. Reich did not, return the property and declined to give any explanation or reason for failing to do so.</p> <p>Held, that Reich was liable to McKillop for the value of such personal .property.</p>

<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 Queens on the 13th day of January, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 15th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Charles E. Willis, 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 2d day of January, 1902,. upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order, entered in said clerk’s office on the 16th day of December, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the • defendants, Christian A. Jacob (sued as Jacob ^Brothers) and another, from a judgment of the Supreme Court' in •favor of the plaintiff, entered in the office of the clerk- of the county ■of Kings on the 18th day of October, 1901, upon the verdict of a jury, and also from an order entered in said -clerk’s office on the ' 18th day of October, 1901, denying said defendants’ motion for anew trial made upon the minutes.

Appeal by the defendants, Bohumil W. Sidle and another, trading as the Artistic Marble Company, from an order of the Municipal Court of the city of New York, borough of Queens, entered on the 14th day of March, 1902, setting aside a judgment theretofore entered in the action in favor of the deféndants and granting a new trial.

Appeal by the plaintiff, Arnold Uhlefelder, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of. March, 1901, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint upon the merits.

<p>Appeal by the plaintiff, Katharine Y. Whitaker, 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 June, 1902, denying the plaintiff’s motion to vacate an order for the personal, and physical examination of the plaintiff before trial.</p>

<p>Constitutional question, by whom, it can be raised — a legislative grant to a corporation may be altered — a boom'd of education cannot sue to have a statute depriving it of part of its territory declared unconstitutional—limitations on corpwate power to sue—legislative power over school districts.</p> <p>A constitutional question can only be raised by one having a legal right or interest involved.</p> <p>A legislative grant to a corporation of special privileges, unless forbidden by the Constitution, may be a contract, but where one of the conditions of the grant is that the Legislature may alter or revoke it, a law altering or revoking, or which has the effect of altering or revoking, the exclusive character of such privileges, cannot be regarded as one impairing the obligation of the contract, whatever may be the motive of the Legislature or however harshly such legislation may operate upon the corporation or the parties affected by it.</p> <p>The board of education of a union free school district cannot maintain an action to have a statute, transferring a portion of its territory to another school district, declared unconstitutional on the ground that its inhabitants would be obliged to pay a larger tax for the purpose of'liquidating the outstanding obligations of the district than they would if the statute had not been enacted, as the only persons interested in the determination of that question are the taxpayers and creditors of the plaintiff school district.</p> <p>Section 1926 of the Code of Civil Procedure does not authorize the maintenance of such an action.</p> <p>So far as the school district itself is concerned, it is competent for the Legislature, not only to transfer a portion of territory to another district, but to merge it into such other district or to abolish it entirely.</p> <p>Section 3 of article 8 of the State Constitution, providing that “ all corporations shall have the right to sue and shall be subject to be sued in all courts in like cases as natural persons,” does not confer upon corporations the general power to maintain all kinds of actions, but only those relating to their corporate rights.</p>

Appeal by Max Micha, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office óf the clerk of the county of Kings on the 31st day of January, 1902, canceling a liquor tax certificate theretofore issued to him..

<p> Denials in a/n answer, therein stated to be “ defenses" —they are sufficient to raise issues which must be established in case of defendant’s default —'an answer on information and belief, not stricken out as sham. </p> <p>The fact that denials, contained in an answer, of material allegations of the complaint, are preceded by the words, “ for a second (or third or fourth) further, separate and distinct defense,” does not render them inoperative to raise an issue as to such allegations, nor does it relieve the plaintiff, in the event of the defendant’s making default at the trial, from the necessity of proving the allegations so denied.</p> <p>An answer made upon information and belief cannot be stricken out as sham, even where the answering defendant was in a position to know the facts.</p>

Appeal by Myron P. Howes and others, owners of property taken in the above-entitled proceeding, from so much of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Putnam on the 6th day of May, 1901, as confirmed the fourth separate report of the commissioners of appraisal appointed in the proceeding in so far as such report related to the awards made to the appellants.

<p>Appeal by the defendant, Charles Ficchia, from a judgment of the Municipal Court of the city of Few York, awarding possession of the premises to the landlord, Marie Castagnette, in summary proceedings.</p>

Appeal by the defendant, Isaac Levin, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 17th day of April, 1901.

Appeal by the defendant, William R. Hearst, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 1st day of May, 1901, upon the verdict of a jury for $25,000, and also from an. order bearing date the 29th day of April, 1901, and entered in' said clerk’s office, denying the defendant’s motion .for a new trial made upon the minutes.

<p>Appeal by the defendant, Peter Martin, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 9th day of October, 1901, upon the decision of the court rendered after a trial at the Nassau Special Term.</p>

Appeal by the defendants, Victoria Berger, by Alfred E. Sander her guardian ad litem, and others, from a judgment of the Supreme Court in a foreclosure action in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of April, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term as amended by an order entered in said clerk’s office on the 7th day of May, 1901.

Appeal by the plaintiff, James W. Wilson, 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 22d day of December, 1900, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 3d day of January, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the Congregation Shearith Israel in the City of New York from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 14th day of March, 1902, and entered in the office of the clerk of the county of Kings, granting leave to the petitioner to disinter the remains of his deceased mother, Adela Cohen, from the grave in which they then reposed in the cemetery of the Congregation Shearith Israel, to the end that such remains might be…

Appeal by the defendants, Edward A. Gaus 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 Kings on the 11th day of January, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the demurrers of certain defendants to the complaint.

Appeal by the. defendant, the St. Regis Paper Company, from an order .of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of J une, 1902, directing judgment for the plaintiff upon the pleadings.

Appeal by the defendants, Samuel Handel and others, composing; the firm of S. Handel & Oo., from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the-clerk of the county of Kings on the 13th day of December, 1901, upon the decision of the court, rendered after a trial at the Kings. Count'’ Special Term, overruling a demurrer to the complaint.

Appeal by the defendant, The New York Central and Hudson River 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 Rockland on the 20th day of May, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1901, denying the defendant’s motion for a new trial made upon the minutes.

• Appeal by the defendant, Minnie M. Schaf, 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 October, 1902, directing that the service of a notice of trial upon the said defendant be deemed sufficient.

<p>Motion to set aside a verdict—the appellate court may consider that two verdicts have been rendered far the sa/mepa/rty—credibility of witnesses—proper question to ask an impeaching witness—where objectionable.evidence is not objected, to, the remedy is to direct the jury to disregard it —proof that an attorney dismissed a witness —refusal to strike out testimony which the jury had been directed to disregard— testimony to refresh memory — testimony as to the effect of the normal use of an injured limb.</p> <p>The fact that, upon two trials of an action to recover damages for personal injuries, the jury have found in favor of the plaintiff may be considered by the Appellate Division in determining whether or not to set aside the judgment entered upon the second verdict on the ground that it is against the weight of evidence. .</p> <p>The credibility of witnesses who have made written or oral statements out of court which conflict with their testimony is a question for the jury.</p> <p>The usual and approved course to be followed in the examination of an impeaching witness is to put to him the precise question.addressed to the witness sought , to be impeached; it is, however, sufficient if the question is so framed as to elicit an answer that is in clear contradiction.</p> <p>The denial by the court of the defendant’s motion to strike out testimony which it had directly charged the jury could not entail any liability upon the defendant does not constitute reversible error.</p> <p>The refusal of a judge presiding at a jury trial to • strike out objectionable evidence admitted without objection does not constitute error, and the remedy of the aggrieved party is to make a request that the jury be instructed to disregard such evidence.</p> <p>Semble, that evidence given upon the second trial of a case by a witness who had - been subpoenaed by both parties to attend the first trial, to the effect that after he (the witness) had heard the plaintiff testify to a certain fact on the first trial, the plaintiff’s attorney excused him from further attendance at that trial, is Incompetent.</p> <p>Upon the trial the defendant called a witness and asked her if the plaintiff had not. told her in a certain conversation at what floor his foot had been caught, to which she replied, “ He didn’t say anything to me at that conversation as to what floor his foot was caught at.” The defendant’s counsel then said, “ Now, to refresh your memory about that, I will ask you if you did not testify on the last trial that he said his foot was caught between the first and second floors ? ” The plaintiff objected to the question as improper in form and the objection was sustained.</p> <p>Held, that the testimony was inadmissible for the purpose of impeachment, and that, so far as the question served to refresh the memory of the witness, the ruling was fairly within the discretion of the court.</p> <p>The plaintiff pleaded permanent injuries and inability to work, and on the trial a physician .called by him testified, in effect, that, as a result of the. accident, the plaintiff’s foot was permanently injured and could not be normally used. He also testified that 'there was liable tó be an open ulcer on the .plaintiff’s foot, “if the boy uses his leg as we ordinarily use ours." ■</p> <p>Held, that the latter testimony was competent as tending to show that any attempt to make an ordinary use of the plaintiff’s foot would be attended'with danger, pain and suffering; and that, in the absence of any proof that the defendant had been prejudiced by its admission, such admission would not be treated as error merely upon the assumption that, if the jury had considered it in another aspect, as the basis for additional damages, such consideration would have been erroneous.</p>

<p>Appeal by the plaintiff, Nellie A. Collins; as administratrix, etc., of John Collins, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of March, 1902, upon the report of a referee.</p>

Reargument of an appeal by the plaintiff, Joseph Hartmann, from a judgment of the County Court of Nassau county in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 6th day of April, 1901, upon an order of said County Court entered in said clerk’s office on the 6th day of April, 1901, affirming a judgment rendered by a justice of the peace.

<p>Appeal by .the defendant, Morris Besdine, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 29th day of April, 1902, after a trial before the court without a jury.</p>

<p>Appeal by the defendant, the American Steel Barge 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 12th day of November, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of November, 1901, denying the defendant’s motion that a verdict be directed in favor of the plaintiff for the sum of $2,500 only, and granting the plaintiff’s motion for an extra allowance of five per cent upon the amount of the verdict, and denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Frederick Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 30th day of January, 1902, upon the verdict of a jury for $235, and also from an order entered' in said clerk’s office on the 30th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Rung Furniture Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of March, 1902, upon the verdict of a jury, and also' from an order entered in said clerk’s office on the 4th day of April, 1902, denying the said defendant’s motion for a new trial made upon- the minutes.

<p>Negligence — injury to an employee while standing upon a ladder which slipped because of his foreman’s failure to continue to hold it in place— assumption of risk —fellow-servant.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the plaintiff operated a capping machine in the defendant's canning factory and was perfectly familiar with the factory and with the machinery therein; that on the day of the accident one Reese, a foreman, who, in the absence of the superintendent, discharged the latter’s duties, requested the plaintiff to aid in replacing a belt which had slipped off a pulley; tliat thereupon the plaintiff procured an ordinary step ladder and went upon it for the purpose of replacing the belt; that for a time Reese held the foot of the ladder, but that, before the plaintiff had descended therefrom, Reese let go of the ladder, which slipped, causing the plaintiff's arm to be caught between the belt and the pulley.</p> <p>The plaintiff had used the ladder on several occasions for the purpose of replacing belts, knew of its defects, if any, the manner in which it had been repaired and had used it after such repairs had been made without inconvenience or accident.</p> <p>Seld, that even if the jury found that the ladder was defective, and that such defect caused or contributed to the injury, the plaintiff, having used the ladder with full knowledge of its defects, could not recover;</p> <p>That, if the accident happened because Reese neglected to continue to hold the ladder in place, such act was the negligence of a co-servant for which the defendant was not liable.</p>

Motion by the plaintiff, Jesse Streets, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit directed as to the defendant The Grand Trunk Railway Company, and the direction of a verdict in favor of the defendant The New York Central and Hudson River Railroad Company, after a trial at the Erie Trial Term.

Appeal by the plaintiff, George D. Berry,, from a judgment of the County Court of Oneida county in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 15th day of February, 1902, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at a Trial Term of said court.

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

<p> Witness—how impeached—he cannot he by asking whether on the trial of another action he was impeached—when an appellate court may disregard the admission of incompetent evidence. </p> <p>The only way in which a witness may be impeached by the statements of others is by producing the discrediting witnesses in court, in order that they may be subjected to cross-examination and their testimony weighed and considered by the jury in the light of their appearance upon the witness stand.</p> <p>Disparaging questions to a witness must be confined to his own conduct or declarations and not extended to the acts or declarations of others. It is, therefore, improper to ask a witness whether, when sworn as a witness in another action, he had been impeached.</p> <p>The admission of incompetent evidence can only be ignored by an appellate court when it is apparent that no harm could have resulted from its reception.</p>

<p>Appeal by the defendant, George Wing, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 8th day of January, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Home Insurance Company of 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 Erie' on the 27th day of January, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 28th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Luzerne A. Williams, as sole surviving partner of the copartnership firm of Case, Williams & Company, from a judgment of the Supreme Court in favor of the defendants, John Magee and others, as executors, etc., of George J. Magee, deceased, entered in the office of the clerk of the county of Onondaga on the 5th day of March, 1902, upon the decision of the court, rendered after a trial at the Onondaga Special Term, sustaining said •defendants’ demurrer to the complaint.</p>

<p>■Counterclaim—when allowed in an action of tort — action for the conversion of money—counterclaim of a margin deposited to secure a purchase of stock ordered, hut not purchased.</p> <p>It is the policy of the law, even where a complaint is in tort, to allow the defendant to set up therein any counterclaim arising out of the transaction which is the foundation of the plaintiff’s cause of action or is connected with, such ' transaction, in order that the entire controversy may be disposed of in a single action.</p> <p>The complaint in an action alleged that the plaintiffs were stockbrokers and that one Spencer was a local broker who operated through them; that on May 9,1901, the defendant Cooley was indebted to the plaintiffs in the sum of §800 for margins on stock transactions carried on through Spencer at the instance of Cooley; that Cooley paid such indebtedness to Spencer to be delivered to the plaintiffs and that Spencer was improperly and unlawfully induced by the defendant Dwyer, who had obtained possession of the money without the consent of the plaintiffs, to repay the same to the defendant Cooley. The plaintiffs alleged a conversion of such money and sought to recover the same.</p> <p>The defendant Cooley alleged in his answer that he paid Spencer §1,110 as margins for the purchase of certain stocks, §310 of which was paid by Spencer to the plaintiffs. He also alleged, for a second counterclaim,' that between May 4 and May 9, 1901, he requested the plaintiffs to purchase certain stocks and deposited with them, “as margins §1,110 upon the representation of the plaintiffs that such stock had been purchased and that these are the transactions which are set forth in the complaint; that the plaintiffs did not, in fact, purchase said stock or become liable by reason of the request of the defendant. but declined to return said sum. of $1,110,” for which sum the defendant demanded judgment.</p> <p>Held, that the facts set forth in such second counterclaim arose out of the same transaction which constituted the plaintiffs' alleged cause of action or, at least, - were “.connected with the subject of the action,” and that it was, therefore, a proper counterclaim within subdivision 1 of section 501 of the Code of Civil Procedure.</p> <p>McLennan and Hiscock, JJ., dissented.</p>

Appeal by the defendants, Maitland Boon 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 Jefferson on the 29th day of August, 1901, upon the decision of the court, rendered after a trial at the Jefferson Special Term, foreclosing a mortgage and directing a sale of the mortgaged premises.

<p>Bond to pay for “ materials ” used in the erection of a retaining wall—it does not cover tools and implements used in and surviving its construction — correction by the Appellate Division of a material error committed in the direction of a verdict.</p> <p>Tools and implements which were used in the performance of a contract for the construction of a retaining wall and survived its performance, are not “ materials ” within the meaning of an undertaking conditioned that the contractor would “well and truly pay for all materials used and services rendered in the execution of such contract,” and “that, any person * * * furnishing material or rendering services in or about the execution of such contract ” might “maintain an action to recover for the same.”</p> <p>The Appellate Division has power to correct a material error committed in the direction of a verdict, even if no specific objection thereto was taken at the trial, when it does not appear that anybody was misled by the failure to take such objection.</p>

<p>- Appeal by the defendant, The New York Central and Hudson. River 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 Onondaga on the 7th day of January, 1902, upon the= verdict of a jury for $10,000, and also from an order entered, in said clerk’s office on the 7th day of January, 1902, denying the; defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, David Koughead and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 14th day of .April, 1902, upon the report of a referee, in and by which judgment it was in effect provided that defendants be required to do and perform certain acts necessary to carry into operation an alleged agreement made between the plaintiffs and the defendants, other than MacNabb, for the…

Appeal by the defendant, The Hew York, Chicago and St. Louis ■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 Chautauqua on the 23d day of April, 1902, upon the verdict of a jury for $3,875, and also from an order entered in said clerk’s office on the 23d day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, William H. Crosby and another, from & judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of •January, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of February, 1902, denying the motion of- each of •■said defendants for a new trial made upon the minutes.

<p>Use of a street for telephone poles and wires without obtaining the consent of abutting owners of the fee thereof— distinction between the uses to which city streets and country highways may be put.</p> <p>A telegraph and telephone company, incorporated under chapter 265 of the Laws of 1848 and the various acts amendatory thereof, which obtains from the board of trustees of an incorporated village, having a population of several thousand inhabitants, the right to erect its poles and string its wires through a populous street in said village, the fee of which is in the abutting owners, will not be held on demurrer not to be entitled to exercise such right without obtaining the consent of such abutting owners, as-the use of the street for such purpose may on the trial of the action be shown to be within the limits of the public éasement therein.</p> <p>In regard to the use to which they may be put, village streets are to be treated as city streets rather than as rural highways.</p>

Appeal by the plaintiff, Oscar M. Wood, as trustee in bankruptcy of James 0. Ward, known as James C. Dillenbeck, a bankrupt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Jefferson on the 7th day of January, 1902, upon the decision of the court rendered after a trial at the Jefferson Special Term, except that portion thereof which awards certain farm stock to the plaintiff.

Appeal by L. Adler Brothers and Company, 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 7th day of Augiist, 1902, denying a motion to vacate an order theretofore entered in the proceeding requiring the treasurer of L. Adler Brothers and Company to appear before a referee and be examined concerning the property of. said corporation pursuant to section 259 of the Tax Law.

<p>Appeal by the defendant, the Wyoming County Co-operative Fire Insurance Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 2d day of July, 1902, denying the defendant’s motion to vacate and set aside an order previously granted in the action directing the secretary of the defendant to appear .before a referee named in said order for examination and to produce the books of the defendant.</p>

Appeal by the plaintiff, Salina Olmstead, and by the defendant Ella Caroline Olmstead, from a judgment of the Supreme Court in favor of the defendant Gertrude Olmstead, entered in the office of the clerk of the county of Erie on the 13th day of January, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, adjudging that the said Gertrude Olmstead is entitled to the fund in controversy.

Appeal by the defendant,. Patrick J. Shortle, from a judgment •of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the 12th day of August, 1899, upon the report of a referee.

. Appeal by the plaintiff, James Sargent, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the .clerk.of the . county of Monroe on the 4th day of February, 1902, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, Cornelius Van Geison, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 13th day of June, 1902, upon the decision of the court, rendered after a trial at the Orleans Special Term, adjudging the said defendant liable for a deficiency arising upon a foreclosure sale of mortgaged premises.

<p>Conversation with a decedent — it may be testified to by one of several claimants in, severalty in favor of the other claimants, but not of himself</p> <p>Where a controversy arises as to whether a deceased life beneficiary had ever received a certain fund, in which "event five persons Would be entitled to definite portions of the fund in severalty, and the executors of such decedent bring an action, against such five claimants to determine, the controversy, one of the • claimants is not incompetent, under section 829 of the Code of Civil Procedure, to testify on behalf of the other claimants to declarations made by the decedent in her lifetime to the effect that the fund in controversy had come into her possession, hut such declaration cannot he given effect as to the claimant testifying thereto.</p> <p>McLennan, J., dissented.</p>

Appeal by the plaintiff, William Huber, from a judgment of the County Court of Erie-county, entered in the office of ,the clerk of the county of Erie on the 12th day of December, 1901, reversing a judgment theretofore rendered by a justice of the peace in favor of the plaintiff.

<p>declarations against, interest — not such where they relate to the question whether certain transfers of property were advancements or gifts — proof to establish agency — competency of declarations of the agent that he was the principal in the transaction. •</p> <p>In an action to partition certain property which passed to the parties tó the action from their deceased mother, the question whether- certain transfers of property • made by the decedent during her lifetime, to two of the defendants, were advancements or gifts, was litigated on the trial.</p> <p>Held, that the mother did not have such an interest in having the transfers treated as advancements rather than gifts as would render admissible, .on the ground that they were adverse to her interest, declarations, made by her subsequent to the transfers, to the effect that they were intended as gifts.</p> <p>On the trial. a contro versy arose as to whether certain moneys, paid by the father ?.. of the parties to the two defendants befóre mentioned, .belonged to the father . or to. the mother. The plaintiff gave evidence tending to show "that such moneys were the proceeds of a sale of real estate, belonging to the mother and was then permitted to show that the moneys were paid directly to the father in the presence of the mother and that the father then stated that he would give the moneys to the two defendants before mentioned.</p> <p>Held, that the evidence was competent, in connection with other testimony, to show that the mother made the father her agent to pay the moneys over to the defendants; .</p> <p>That evidence, offered on behalf of the defendants before mentioned, to the effect that when the father paid over.the moneys to them he stated that he was giving them the moneys on his own account and that it did not belong to the mother was inadmissible for the following reasons : Mrst, because, if the plaintiff had succeeded in establishing that the father was the agent of the mother in paying over the*money to the defendants, the father’s declarations Were not admissible to contradict his agency,' and, second, because the mere declarations of the father, as to his ownership of the money, were not admissible in support of the defendants’ contention that the money belonged to the father.</p> <p>. Williams, J., dissented.</p>