Volume 76 — New York Supplement

<p>Vende—Convenience of Witnesses—Place of Transaction.</p> <p>The venue of an action for libel is properly changed when it not only appears that the change will be for the convenience of the greater number of witnesses, but also that the transaction to which most of the testimony will be pertinent occurred in the county to which the change is sought, and 6 miles from its county seat, and nearly 4Ó miles from the county seat of the county in which the action was commenced.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Malvine Gray against the Brooklyn Heights Railroad Company. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Louis Gray against the Brooklyn Heights Railroad Company. From a judgment for defendant and an order denying a new trial, the plaintiff appeals.

Action by Charles A. Brown and another against the city of New York and Sarah L. Furman, as executrix, etc., and others. Judgment for plaintiffs, and the city appeals.

<p>1. Water Rights—Condemnation—Damages.</p> <p>One having a mill on an outlet of a lake, the waters of which are-condemned for supplying a city, has only water-power privileges, and not storage-reservoir privileges, for which he may have compensation.</p> <p>2. Same.</p> <p>The availability of property condemned for use in connection with a-water supply for a city,' hut not its value to the city in view of its-necessity, may he considered in determining the compensation therefor.1</p>

Appeal by J. T. Eldridge, petitioner, and another, from an ex parte order of the surrogate’s court of Washington county declaring the proceeding in the compulsory accounting of Robert Armstrong, Jr., as administrator, abated, and directing payment by the petitioners of the stenographer’s fees.

<p>Appeal from trial term, Monroe county.</p> <p>Charles O. Hosier was convicted of attempting to commit rape, and appeals.</p>

<p>Judgment—Accounting—Validity. .</p> <p>A judgment which merely directs defendant to account to plaintiff is bad, the accounting being required to be made before the court or r'eferee, who must determine the amount due, and direct judgment accordingly.</p>

Action by Royal S'. Litchfield, administrator of Matthew Murphy, deceased, against the Buffalo, Rochester & Pittsburgh Railway Company. From a judgment for plaintiff, and from an order denying new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Mary Ross against Elmere E. Belden. From an order denying a motion to' open a default, plaintiff appéals.</p>

<p>1. Contracts—'Time for Performance—Waiver.</p> <p>Evidence examined, and held to sustain a finding that plaintiff’s failure to deliver material for defendant’s building within the time required by the contract had been waived by the defendant.</p> <p>2. Supplemental Summons and Complaint—Service without Leave of Court—Objections—Mode of Taking.</p> <p>An objection that a supplemental summons and complaint had been served without leave of court, bringing into the action the sureties on a bond given to secure the performance of any judgment obtained by plaintiff, could not be taken by answer thereto or on the trial, hut only by motion to set them aside.</p>

<p>1. Minor Servant—Injuries—Master’s Negligence.</p> <p>Plaintiff, between 14 and 15 years of age, was employed by defendant as an errand boy, and was given a package to take to an express office. The package was carried to the basement of the building, one floor of which defendant occupied, and placed on a lift, which was to elevate it to the street. Nothing further was required, except to indicate to the engineer who had charge of the engine which controlled the lift to start it, and when the lift arrived at a level with the street it stopped automatically; but plaintiff, without a suggestion from anyone, got onto the lift, and started it, and in trying to stop it sustained injuries. 'Held, that no negligence on the part of defendant was shown.</p> <p>2. Same—Labor Law.</p> <p>Plaintiff not having been employed to run the lift, defendant was not liable, within Labor Law (Laws 1897, c. 415, §? 79), providing that no child under 15 shall be permitted to have the care or management of an elevator.</p> <p>Laughlin, J., dissenting.</p>

Action by Henry L. Boughton against Edmond C. Petigny and others. From a judgment of the appellate term (73 N. Y. Supp. 139) •affirming a judgment in favor of plaintiff, defendants appeal. For further facts, see prior report.

Action by Herman Ellis against Leopold Miller and another. In letter from plaintiff to defendants he says, “In this invoice we make terms the same as in old contract, which was broken.” From order setting aside verdict and granting a new trial, defendants appeal.

<p>1. Sale of Patent—Palse Representations.</p> <p>Representation by a patentee, in negotiating the sale of the patent, that nothing like it has ever been patented, is sufficient to avoid the contract, at the election of the purchaser, if there are similar patents in direct competition with the patent in question, even though the latter is not an infringement thereof.</p> <p>S. Same— Evidence—Admissibility—Copies of Other Patents.</p> <p>Where the validity of a sale of a patent is attacked as induced by false representation that the patent differed from other patents, copies of other patents claimed to be similar to the patent in question are admissible.</p> <p>3. Evidence—Pbivileged Communication—Attorney and Client.</p> <p>Evidence of conversations and communications between an attorney and bis client is not incompetent as against tbe client, when the attorney at the time of the conversation and communications represented both plaintiff and defendant.</p> <p>■4 Same—Appeal—Harmless Error.</p> <p>The admission against a client of incompetent evidence of conversations between the client and his attorney is harmless error, when the facts so shown are also shown by written statements of the client which are in evidence.</p>

Proceedings in the matter of the appraisal of the property of Henry-W. King, deceased, under the transfer tax act'. From an order confirming the appraiser’s report, the executors appeal.

<p>1. Public Officers—Act Conferring Salary—Enactment after Acceptance of Office—Validity.</p> <p>Plaintiff was elected alderman of a city of the second class for two years, commencing January, 1900. Thereafter Act April 23, 1901, was passed, attaching to the office of alderman in such cities a salary of $750. Plaintiff continued to perform his duties, and served out his term. 'Held, that the act was not void as a gratuity, in so far as giving to plaintiff a salary for the balance of his term; plaintiff having had a right at any moment to resign, and it being, therefore, assumed that he continued in office in reliance on the salary.</p> <p>2. Same—Amendment Taking Away Salary—Validity.</p> <p>Act Jan. 22, 1902, providing that Act April 25, 1901, attaching a salary to the office of alderman, should take effect January 1, 1902, and that nothing therein should be “taken or held as granting or conferring any salary * * * for services as such alderman for any part of the year 1901,” having been passed after the expiration of plaintiff’s term, and after his salary had accrued, was void, in so far as affecting him, as impairing a vested right.</p>

Action on a guaranty by the Central Bank of Rochester against 'Laura M. Kimball and others, as executors of William Kimball, deceased. From a judgment for plaintiff (75 N. Y. Supp. 1122), defendants appeal.

<p>Appeal from trial term, Erie county.</p> <p>Action by Charles W. Waldron against Juliette C. Ailing, executrix, From a judgment in favor of defendant, plaintiff appeals.</p>

Suit by Henry Hamlin against John B. Smith and others. From a judgment for certain defendants, the plaintiff and one defendant appeal.

<p>1. Assignment for Benefit of Creditors — Failure to Collect Assets— Personal Liability of Assignee.</p> <p>H. and O. were the sole partners in two private banks,—the S. Bank, and H. & Co. The S. Bank failed, owing the H. Bank $8,000. Certain assets held by the partners were appraised by them and one A. at $26,-000. The partners, in the presence of A., settled their partnership transactions in both banks, and certificates of deposit in the' S. Bank were issued, of which two, of $4,000 each, were delivered to the H. Bank in settlement. O. withdrew from the H. Bank, and A. became a partner. During the next two years the certificates were twice renewed. During the next seven years they were again renewed from time to time; each of the latter renewal certificates having written on its face, in red ink, that it was to be paid from the assets of the S. Bank; total certificates, $20,000. A., who then owned these certificates, made a general assignment for the benefit of creditors, and his assignee, O., did not collect these certificates; nor could they have been collected in full from the assets of the S. Bank. •Held, that O., assignee, was not liable to the creditors of A. for the full amount of these certificates, as a partner of the S. Bank, since A. took them with full knowledge that the assets of the S. Bank were alone subject to their payment.</p> <p>2. Same—Sales Not is Good Faith.</p> <p>An assignee for the benefit of creditors sold at public auction certain certificates of an insolvent bank to his son and daughter. Shortly after, the daughter received §726, and the son $1,063.52, on these certificates, in excess of the amount paid. The son was living at the time in his father’s family, and borrowed of his father the money with which ile bought his certificate. The daughter was teaching school away from home, and the father used money held by him for her to buy her certificate. Both certificates had previously been sold to the daughter, and, with her consent, again sold at auction. Held, that the county court was justified in setting aside such sales, and charging the assignee with the items of §1,083.52 and §726.</p> <p>-3. Same—Jurisdiction op County Court.</p> <p>Under Laws 1877, c. 466, § 20, giving the county court such powers as to accountings by assignees for the benefit of creditors as a surrogate may exercise in reference to an accounting by an executor or administrator, and section 25, providing that such court shall have jurisdiction relating to assignments, and that jurisdiction shall be presumed in support of the orders and decrees therein, unless the contrary is shown, and that its powers shall be those of a court of equity in reference to the trust and any matters involved therein, a county court has jurisdiction to set aside sales of real estate and other property by an assignee for the benefit of creditors.</p> <p>■4. Same—Removal op Assignee.</p> <p>Under such statutes, the county court also has jurisdiction to remove such assignee, and appoint another in his place.</p>

Action by Joseph Purdy against Ormond L. Moore.” From a judgment on a verdict dismissing the action on the merits, and from an order denying motion for new trial on the minutes, plaintiff appeals.

Action by the Farmers’ & Merchants’ State Bank of Oneida against Charles A. Stringer and others. Defendants move for an order to vacate the service of the summons, and for leave to withdraw the .notice of appearance.

<p>Action by Horace C. McCarty against the New York Central & Hudson River Railroad Company. On exceptions to a judgment of nonsuit. Ordered to be heard in the first instance by the appellate division. Exceptions sustained.</p>

<p>Appeal from special- term, Onondaga county.</p> <p>Certiorari by the people, on the relation of James D. Miller, against Duncan W. Peck, as commissioner of public safety of the city of Syracuse. From a judgment vacating the writ, the plaintiff appeals.</p>

<p>Appeal from trial term, Oneida county.</p> <p>Action by Susan Ingram, as administratrix, against Robert L. Fosburgh. Judgment for plaintiff, and defendant appeals.</p>

Proceedings to settle the estate of Charlotte Miller, deceased. From a decree of the surrogate refusing to admit to probate the decedent’s will (73 N. Y. Supp. 508), Justin Herold and another, the executors named in the will, and others, appeal.

Application of Ida Graves Raymond for trust fimds under the will of Sarah A. Brewster, deceased, etc. From a decree in favor of applicant, the trustee appeals.

Action by Henry W. Lynch against the Syracuse, Lakeside & Baldwinsville Railway. From a judgment of the county court reversing a judgment for plaintiff, and granting a new trial unless plaintiff stipulates to reduce his verdict to a certain sum, plaintiff appeals.

Action by Simon Numan against Samuel Wolf. From a judgmení for plaintiff, defendant appeals. In November, 1900, the plaintiff was arrested and taken before the recorder of the city of Little Falls upon an information charging him with the offense of criminally receiving stolen property. The examination was run, along for a few days, when the recorder accepted a plea of guilty of petit larceny, and fined the plaintiff §20, upon the payment of which he was discharged.

Action by the Taylor Worsted Company against Vincent M. Beolchi. and others. Motion by defendant Beolchi for a reference to fix the-damages claimed to be due on an injunction bond given in the action..

<p>Municipal Corporations—Work—Bonds—Materials Furnished Contract- or—Coal for Fuel—Statutes—Recovery from Obligors.</p> <p>Buffalo City Charter, § 478, as amended by Laws 1899, c. 577, enacts that the council may provide by ordinance that every bond for work for the city shall provide that every person rendering “services or materials in or about the execution of the contract” may recover of the obligors. Held, that where a bond was given under the statute for the construction of a retaining wall, the bond containing the clause as to recovery from the obligors, recovery might be had on the bond for coal furnished the contractor and used as fuel in producing power used in pumping and blasting.</p>

<p>Appeal from Monroe county court.</p> <p>Action by John Wanamaker against Simon J. Weaver. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals.</p>

<p>1. Indictment—Violation op Labor Law—Suf.ficiency.</p> <p>An indictment charging defendant with permitting his employé to work, more than 60 hours a week, in violation of Laws 1897, c. 415, art. 8, § 110, providing that no employé shall be required or permitted to work in. a bakery more than 60 hours a week, or more than 10 hours in any one day, unless for the purpose of making a shorter workday on the last' day of the week, which follows the language of the statute, and which contains proper averments as to time, place, person, and other circumstances to identify the particular transaction, is good.</p> <p>2. Labor Law—Bakeries—Hours of Labor—Validity.</p> <p>Laws 1897, c. 415, art 8, § 110, providing that no employé shall be required or permitted to work in a bakery more than 60 hours a week, or more than 10 hours in any one day, unless for the purpose of making, a shorter workday on the last day of the week, is a police regulation, for the protection of the health of the employes in bakeries, as well as-the health of the public, without prohibiting defendant from carrying-on his business; and it is therefore not in conflict with Const. H. S.</p> <p>• art. 14, § 1, providing that no state shall make any law abridging the-privileges and immunities of the citizens of the United States.</p> <p>3. Same.</p> <p>The statute is not in conflict with Const. U. S. art 14, § 1, providing, that no state shall deny any person within its jurisdiction the equal: protection of the law.</p> <p>4. Same.</p> <p>The statute is not in conflict with Const, art. 1, providing that no member of this state shall be deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers, nor be deprived of life, liberty, or property without due-process of law.</p> <p>McLennan and Williams, JJ., dissenting.</p>

<p>Appeal from trial term, Oneida county.</p> <p>Action by Stephen Madison against George Benedict From a judgment for plaintiff, and an order denying a new trial, defendant appeals.</p>

<p>1 Fraudulent Conveyances—Action to Set Aside—Exhaustion op Legal Remedies—Unsatisfied Execution.</p> <p>Under Code Civ. Proc. § 1871, authorizing suit by a creditor to reach assets of bis debtor in possession of third persons after the return unsatisfied of an execution, an action may be commenced to set aside a fraudulent conveyance by a judgment debtor on the return of an unsatisfied execution, without further attempt to collect the judgment.</p> <p>2. Same—Principal and Surety—Mortgages.</p> <p>A mortgagor sold the mortgaged property, hut the vendee did not assume the mortgage debt, but thereafter executed a bond as collateral security for the debt. The mortgage was foreclosed, the land sold, a deficiency judgment rendered against the mortgagor and her vendee, and execution returned unsatisfied against them, though the vendee was the owner of other lands. ‘Held, that the fact that such lands were not sold under the judgment did not preclude action by the judgment creditor to set aside a fraudulent conveyance of lands of the mortgagor; the latter being primarily liable for the debt, and the vendee only liable as surety.</p> <p>3. Same—Foreclosure Suit—Parties.</p> <p>Purchasers of mortgaged property who do not assume the mortgage" debt, but afterwards execute a bond to the mortgagee as collateral security for the debt, are not necessary parties to a foreclosure suit</p> <p>4. Same—Voluntary Conveyance—Presumptions.</p> <p>The fact that a conveyance is voluntary creates a presumption that it is in fraud of creditors.</p>

<p>1. Easements—Municipal Corporations—Reservation of Street—Obstruction.</p> <p>Where the owner of land in a city constructs a road therein, and designates it as a street in a plat, laying out the tract in lots, and reserves such street in the sale of the lots, an owner of a lot so sold has an easement in the entire way so created, as against the owners of the other lots so sold, which -is violated by the obstruction of the way, though the city never accepts the way as a street.</p> <p>2. Same—Other Means of Access.</p> <p>Where a property owner has a right of way over an adjoining property, the owner of the latter property cannot excuse an obstruction, of the right of way by showing that he has provided a means of access to the former property.</p> <p>8. Same—Action to Remove Obstruction—Dismissal—Sale Pending Suit.</p> <p>Where a portion of a manufacturing plant which is on and obstructs a way over which plaintiff has an easement is sold, pending an action to compel the removal of the obstruction in which no damage is asked, to purchasers having knowledge of the suit, it is error to dismiss the complaint on the ground that the removal of the obstructions cannot be enforced against the purchaser, as it acquires the property subject to the suit.</p> <p>4 Same—Proof of Damages—Necessity.</p> <p>A lot owner having a right of way over adjoining property, which is essential to the use and enjoyment of his property, is not required, in a suit to compel the removal of obstructions from such right of way, to show the amount of damages to his property caused by the obstruction.</p> <p>5. Same—Damages in Lieu of Removal of Obstruction.</p> <p>Where the removal of buildings obstructing a right of way of an adjoining property owner would cause a' damage out of all proportion to the damages which will be sustained by plaintiff by the continuance of the obstruction, they may be allowed to remain, and damages be awarded to plaintiff.</p> <p>6. Same—Burden of Proof.</p> <p>Where defendant in such action desires such relief, he has the burden of showing the facts which will authorize it.</p> <p>Williams, J., dissenting.</p>

<p>Appeal from trial term, Cattaraugus county.</p> <p>Action by Bridget Tobin against Charles E. Bell and others. "From a judgment for plaintiff, defendants appeal.</p>

<p>1. Manslaughter—Evidence—Sufficiency.</p> <p>On a prosecution for manslaughter, evidence held sufficient to show that death was caused hy injuries inflicted by accused, and not by an accidental fall.</p> <p>3. Same—Degrees of Grime Charged—Conviction of Inferior Degree—Evidence.</p> <p>Where, on a prosecution for manslaughter, the only incriminating evidence tended to show that accused struck deceased several times with an iron poker with sufficient violence to fell her to the floor, causing her death, it was not error to instruct that, if defendant was not guilty of manslaughter in the first degree, he was not guilty in any degree.</p> <p>•8. Same—Conviction of Assault—Evidence.</p> <p>Code Or. Proc. § 444, provides that, on an indictment for a crime consisting of different degrees, the jury may find defendant guilty of a de.gree inferior to that charged. Section 445 provides that a defendant may be found guilty of any crime necessarily included in the offense charged; and the latter section, as amended by Laws 1900, c. 625, provides that on a prosecution for murder or manslaughter, if the act •complained of be not proven to be the cause of death, defendant may be convicted of assault in any degree constituted by the act complained ■of, and warranted by the evidence. Seld, that where, on a prosecution for manslaughter, the only incriminating evidence showed that defendant struck deceased several times with an iron poker, causing her death,— an assault not being a crime within the range of homicide, and hence not within section 444, and the act complained of not being necessarily included in the crime charged, and hence not within section 445, and the act being proven to be the cause of death,—no conviction for assault could be had.</p>

Action by James C. Hogan against Arthur Clarke and others. From an order denying a motion to punish the defendant Clarke for contempt, the plaintiff appeals.

<p>Railroads — Persons Near Crossing — Failure to Signal—.Frightening • Horse.</p> <p>Where a railroad train approached a crossing without ringing a bell, or sounding a whistle, and the horse of plaintiff, which was standing ■ 65 feet from the crossing, became frightened at the noise of the train, and ran away, injuring plaintiff, the railroad was not liable for negligence on the theory that, had signals been given, plaintiff would have had time to take- some steps to prevent the horse from becoming frightened, since a railroad’s only duty as to signals is to warn those-approaching a crossing of the danger.</p> <p>Smith, J„ dissenting.</p>

Action for libel by Smith O’Brien against James Gordon Bennett. From a judgment for plaintiff and from an order denying a new trial defendant appeals. The alleged libel is as follows: “Arrested with Her Acquaintance. Mrs. Cook and Her Companion Taken into Custody When She Kept His Change. Fake §100 Bill for Drink. They Had Met on the Train and Become Separated from Her Woman ■Relative and Children.

Action by Jeremiah Towsand against .Charles Ford and another for conversion of a quantity of stone. From a judgment for plaintiff, defendants appeal.

Action by David P. Wager, as surviving partner of the firm of David P. Wager 8z Son, against John E. Corwin. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term, Erie county.</p> <p>Action by George H. Minor against the Erie Railroad Company. From a judgment for defendant, plaintiff appeals.</p>

Action by James B. O’Reilley and another against John King and another as receivers, etc. From a judgment for plaintiffs, and from an order denying a new trial, defendants appeal.

<p>1. Municipal Chaster—Assessment Roll—Completion—Removal of Property Therefrom.</p> <p>The city charter of Binghamton provides that the annual assessment shall be completed by September 1st; the assessors, after hearing objections and making corrections, shall file a correct assessment roll by October 1st; upon such roll the state and county tax shall be levied in December of each year; for 10 days after the first Tuesday in April the assessors shall meet to transfer property on the roll that has been sold, and to add thereto omitted property; and the roll “so revised” shall be the assessment roll for the city tax. -Held that, the roll not being completed until after the April meeting, the assessors could at that meeting correct it by removing therefrom the assessment on property previously exempted by statute.</p> <p>2. Same—Construction.</p> <p>The rule that statutes of exemption, purely, should be strictly construed, does not apply to an act imposing an annual tax upon the corporate stock of trust companies, and exempting them from all other forms of taxation, as it does not relieve property from taxation, but simply changes the method thereof.</p> <p>8. Corporation Tax—Effect as to Other Taxation.</p> <p>Under Laws 1901, c. 132, which requires trust companies to pay an annual tax on their corporate stock, and exempts them from all other forms of taxation, which act went into effect March 21, 1901, a trust company assessed for general taxes for that year was entitled to have its property removed from the assessment roll; it being the intent of the act to relieve trust companies from all other taxation from the time it went into effect.</p> <p>Parker, P. J., dissenting.</p>

<p>Action by the First National Bank of Binghamton against the . city of Binghamton. Submission of controversy under Code, § 1279. •Judgment for plaintiff.</p>

<p>Appeal from trial term, Richmond county.</p> <p>Action for death by Delia Swanton, administratrix, against J. Berre King and another. From a judgment in favor of plaintiff, she appeals.</p>

<p>Appeal from special term, Westchester county.</p> <p>Action by John E. Andrus against the National Sugar Refining Company and the New York Central .& Hudson River ^Railroad Compan)r to establish a right of way in plaintiff, and to .enjoin defendants from obstructing the same by means of a railroad siding and the use thereof. Judgment dismissing .the tcomplaint, -and plainírfi* OTlTlPíllc</p>

Action by Elizabeth Ellen Mount against the Brooklyn Union Gas Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by John McVeigh against Claude V. Gentry. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Wills—Devise of Realty— Equitable Conversion.</p> <p>A provision in a will authorizing the executors to sell or mortgage testator’s realty “if, in their judgment,” it is necessary to carry out the-will, is insufficient to effect of itself an equitable conversion of the realty.</p> <p>2. Same—Charging Realty with Legacies.</p> <p>A testator made a devise of real estate, subject to the payment of her debts. Then, after making several specific bequests, she authorized her executors to sell or mortgage her realty “if, in their judgment,” it was necessary to carry out the will. When the will took effect, testator’s-personalty was sufficient to pay both her debts and legacies, but by reason of expenses incurred by the executor in a contest of the will the debts, legacies, and expenses thereafter exceeded the personalty. 'Held that, in the absence of any extrinsic evidence of testator’s intention to charge her realty with the payment of the legacies, the power to sell' and mortgage given the executors was insufficient to charge it with such payment.</p> <p>Goodrich, P. J., dissenting.</p>

<p>•Shellfish—Cultivation—Lease fbom State—Maeking Plat—Convebston.</p> <p>Where a lessee from the state of land under water for the purpose of shellfish cultivation does not plainly mark the ground by stakes, buoys, or monuments, as required by his lease, and another, without knowledge of such lessee’s rights, plants clams on such land, such lessee has no right to appropriate such clams to his own use, and, if he does so, he is liable to the owner for the conversion.1</p>

<p>1. Misconduct of Counsel—Improper Argument—Ground for Reversal.</p> <p>Conduct of plaintiff’s counsel in an action against a street railway-company for personal injuries, in persistently insisting that the conductor had taken the names of numerous passengers who were not produced as witnesses, and whose names the company refused to disclose-to him on application, and in denouncing the company as a corporation, and in asserting that the trial was conducted on defendant’s- part at an unnecessary personal expense to the members of the jury as taxpayers, was reversible error, where there was no evidence whatever that the conductor or any one else took the name of a single passenger not produced by the company as a witness on the trial.</p> <p>2. Same—Cure of Error.</p> <p>The misconduct of plaintiff’s counsel was not cured by an instruction, given at plaintiff’s instance, that “in case either counsel, in summing up, stated facts that were not proven upon the trial, or in case either counsel gave a recollection of the facts which disagree with the recollection of the jury, the jury may disregard these statements, and take-their own recollection of the facts.”</p> <p>8. Same—Exceptions—Necessity.</p> <p>No exception is necessary to justify the reversal of an order denying a new trial, if in furtherance of justice.</p> <p>Goodrich, P. J., dissenting.</p>

<p>1. Stray Animals—Seizure and Detention—Defenses—Estoppel.</p> <p>Code, § 3085 et seq., provides that when animals are found running at large the person seizing them shall immediately file with a justice of the peace a written petition, etc. The town law (Laws 1890, c. 569, §§ 120, 121) provides that whenever animals stray on a person’s land he may seize and detain them, asserting a lien, etc. Held, that the mere fact that the defendant who seized and detained plaintiff’s animals, which had strayed onto his land, told plaintiff that he had telephoned to a justice of the peace, and that the property would be disposed of according to law, would not preclude defendants from defending an action of replevin brought against them on the basis of the town law.</p> <p>2. Same—Defenses—Sufficiency.</p> <p>The town law (Laws 1890, c. 569, *? 120) provides that wherever any person shall find strayed animals on his land, and such animals shall not have come thereupon from adjoining land, where they were properly kept, by reason of his refusal or neglect to make or maintain a division fence, such person may have a lien on" such animals by reason of the damage done, for his reasonable charges for keeping them, and for all fees and costs, and may keep them until the lien is satisfied. Section 121 allows him five days in which to file notice of lien. The other provisions of the law relate to the redemption and disposition of the property. Held that, where plaintiff’s animals came onto defendants’ property from a highway, and did damages, and were taken into custody by defendants, and no offer to redeem was made, and plaintiff instituted replevin before the expiration of the five days allowed for filing notice, the statute was a good defense.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Katherine V. Whitaker against the Staten Island Midland Railroad Company. From a judgment nonsuiting plaintiff, she appeals.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by3 John H. Paul against the Delaware, Lackawanna & Western Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Appeal from municipal court of New York.</p> <p>Action by James S. McQuillen against Aleda F. Carpenter. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Vendor and Purchaser—Contract to Sell—Title—Deed—Description— Adverse Possession.</p> <p>Plaintiff contracted to sell certain real estate to defendant, and, on-defendant’s objecting to the title, they agreed to submit the controversy. The submission stated that the premises intended were situate 408 feet west of a certain street; that the deed which was the source of plaintiff’s title described them as 480 feet west of such street, and also conveyed the grantor’s right to insert beams in the wall of a house adjoining, as conveyed to him by a certain deed. But the submission did not agree as to the location of such wall, though the location was given in the statement of plaintiff’s claim as one which would fix the situation as 408 feet west of the street. The submission also declared that the grantee in such deed and his successors, to plaintiff, had been in the actual possession of such property ever since 1875. 'Held, that the submission did not show title in plaintiff either by deed or adverse possession.</p>

Action by John D. Grover against Richard A. McNeely and others. From an order denying a motion to vacate or modify an order appointing a receiver, defendants appeal.

Specific performance by Charles O. Gates against William M. Dudgeon as trustee under the last will and testament of Richard Dudgeon,, deceased. Decree for complainant, and defendant appeals.

<p>1. Contracts—Extra Work—Consent.</p> <p>Where, in an action to recover a balance on a building contract and for extra work, the case fails to show either an express or implied consent of the defendant to such extra work, it is error to include pay therefor in the judgment.</p> <p>8. Same—Substantial Performance—Evidence—Judgment.</p> <p>Where, in an action to recover a balance on a building contract, at the close of the evidence plaintiff was permitted to amend the complaint to conform to the proof by alleging substantial instead of full performance, and defendant’s evidence showed the necessary expense to complete the contract, such evidence-supplied plaintiff’s omission to prove such expense, and the court was enabled to adjust the judgment.</p> <p>8. Same—Tender—Presumption.</p> <p>Where, before suit to recover a balance on a building contract, plaintiff claimed full performance and for extra work, and defendant tendered a certain sum in full payment, and on the trial plaintiff failed to recover for the extra work, and amended his pleading to conform to the proof, and recovered for a substantial performance more than the sum tendered, the court on appeal cannot assume that defendant would have tendered the amount recovered if plaintiff had not claimed more.</p>

<p>Obder op Nonsuit—Judgment on Merits—Amendment.</p> <p>Where, at the close of the plaintiff's case, a motion to nonsuit was made and denied, and at the close of all the evidence the motion was renewed and granted, the entry of a judgment dismissing the complaint “on the merits” was unauthorized, and the denial of plaintiff’s motion to amend the judgment by striking out such words was error.</p> <p>Jenks and Woodward, JJ., dissenting.</p>

<p>Appeal from trial term, Onondaga county.</p> <p>Action by Edwin G. Thompson against Samuel H. Easton and another. From a judgment for plaintiff for $150 on a decision without a jury (66 N. Y. Supp. 75), defendants appeal.</p>

<p>1. Partnership—Evidence—Exception.</p> <p>Where, in an action against A. and B., as partners, to recover for goods sold by plaintiffs, A. denied the partnership, his exception to a ruling permitting plaintiff’s agent to testify as to what B. said when ordering the goods (A. not being present) was unavailing, when the answer disclosed nothing bearing on the question of partnership.</p> <p>'2. Same—Error without Prejudice.</p> <p>Where, in an action against A. and B. as partners, A. denied the partnership, and the referee permitted B. to testify that he was doing business with A., -and B. afterwards testified to conversations and transactions tending to establish the partnership, the error worked no injury.</p> <p>■3. Same—Photograph—Changed Conditions.</p> <p>Where, in an action against A. and B. as partners, A. denied the partnership, the exclusion of a photograph of the premises in which the business was carried on, taken after a sign which was on the building at the time of the transactions involved had been removed, was not error.</p> <p>•4. Same—Finding op Fact—FTame op Firm.</p> <p>Where, in an action against A. and B. as partners, A. denied the partnership, and the referee found the existence of the partnership, and that they did business under the firm name of A. & B., while the evidence was that the business was done in the name of B., the error as to the name of the firm was without prejudice.</p> <p>■5. Same—Harmless Error.</p> <p>Where, in an action against A. and B. as partners, in which A. denied the partnership, error was committed at the trial before a referee in receiving secondary evidence as to the marks on certain bills, and in .admitting testimony of an interview between B. and a third party, the judgment should not be reversed on that ground, where it is manifest on the whole record that such incompetent evidence did not affect the result.</p>

Summary proceeding to recover possession of real property by David Flegenheimer against Gustav Dreyer and others. From a judgment for plaintiff, defendant Dreyer appeals.

<p>1. Negligence—Runaway Horse—Evidence.</p> <p>Where plaintiff, on stepping from the sidewalk into the street for the purpose of taking a street car, was knocked down by defendant’s runaway horse, proof that the horse, attached to a wagon, was on the street unattended, was prima facie evidence of negligence on defendant’s part.</p> <p>2. Same—Ownership op Horse—Evidence.</p> <p>Where, in an action against A. to recover for injuries caused by a runaway horse, plaintiff testified that the horse belonged to “A. Bros.,” but there was no proof that defendant belonged to such firm, the defect, if any, was cured by defendant’s witness testifying that the horse was A.’s.</p> <p>8. Same—Contributory Negligence.</p> <p>Where plaintiff, at twilight, desiring to take a street car, stepped into the street to see if a car was coming, and was knocked down by a run-' away horse, it was not negligence, as a matter of law, for him to so step into the street, or to fail to see the approaching horse.</p>

<p>Interpleader—Receiver—Possession op Property.</p> <p>Under Code Civ. Proc. § 713, authorizing the appointment of a receiver of property which is the subject of an action, before final judgment, in certain cases, where the property is not in the possession of the moving party, a receiver cannot be appointed on the motion of a plaintiff in an action of interpleader, who is in possession of the property.</p>

Suit by Ernestine Schleissner against Morris Schleissner. From a judgment for plaintiff, defendant appeals. Order for return of appellant’s brief to him because of scandalous matter, and giving permission to file another.

Action by Emanuel Braham against the Nassau Electric Railroad Company. From .a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from special term, Erie county.</p> <p>Action by Octavius O. Cottle and another, executors of John J. P. Read, deceased, against Walter Cary and another. From judgment for plaintiffs (70 N. Y. Supp. 129), defendants appeal.</p>

Bill by George A. Kent against the common council of the city of Binghamton and another to- enjoin the collection from the taxpayers or abutting owners of expenses for street paving. From a judgment for defendants, plaintiff appeals.

<p>Appeal from special term, Kings county.</p> <p>Actions by Fred Adee against the Nassau Electric Railroad Company and another, and Florence Adele Lott and another against the same. From judgments in favor of the plaintiffs, defendants-appeal.</p>

Application by Edward F. Brush for recount of votes cast for the office of mayor of the city of Mt. Vernon, and for a writ of mandamus to various election officials ordering a recount. From an order granting the application, Edwin A. Fiske, an intervener, appeals.

<p>Submitted controversy by Charles D. Robinson, receiver, against Bushrod H. Spencer.</p>

<p>L Bastardy Proceedings—Sufficiency of Evidence.</p> <p>Complainant in bastardy proceedings testified that she met defendant for the first time on January 5, 1901, at a ball, when she made an engagement to meet him on the night of January 9th, and that on such night he took her to a Raines Law hotel, where he had intercourse with her. Defendant admitted that he had been intimate with complainant, but testified that he met her for the first time on March 17, 1901, at a friend’s house. A witness subpoenaed by complainant, but not introduced by her, testified that complainant, during her pregnancy, told the physician in attendance that she did not meet defendant until March, and other matters corroborating defendant’s testimony; and there was evidence that as late as about the 1st of February complainant had lived with another man, who represented her to be his wife, and had introduced her as such to the janitor of the building in which he lived, and that complainant’s parents believed her to be married to this man. Held, that the evidence was insufficient to sustain a conviction.</p> <p>3. Appeals from Court of Special Sessions—Jurisdiction—Constitutional Law.</p> <p>Laws 1897, c. 378 (New York City Charter) § 1413, providing that “the provisions of Laws 1895, c. 601, respecting appeals from a judgment or determination of the court of special sessions in the city and county of New York shall continue and apply to appeals from the courts of special sessions in the city of New York as constituted by this act,” was not in violation of Const, art. 3, § 17, prohibiting any previous law from being made a part of any act without inserting the previous law in the act; the act of 1897 being in the nature of an amendment of the previous act extending its provisions over the enlarged territory created by the act of 1897, and thus within the legitimate scope of the legislative powers.</p>

<p>Testimony—Inconsistent Letter—Subsequent Letter—Corroborative op Testimony—Admissibility.</p> <p>In an action against one of several associated underwriters, the issue was whether plaintiffs’ attorneys at law had agreed to perform certain services for the underwriters for §300 received from each underwriter, or whether such sum was merely a retaining fee. One of the underwriters testified that one of the plaintiffs had stated in his presence that the §300 ,was to cover everything. Plaintiffs introduced a letter written by the witness to each of the underwriters, asking for §300 as a “preliminary subscription” for legal fees, etc.; and defendant offered a letter from such witness to one of the underwriters, written the day after the other letter and after the statement of the plaintiffs, which letter stated the §300 would be in full for legal services. Held, that the latter letter was admissible, since the first letter might well he regarded as a declaration inconsistent with the testimony of the witness, and the latter letter was competent to qualify or explain the first.</p> <p>Goodrich, P. J., dissenting.</p>

Action by Terence King against William Brookfield and another, as receivers of the Hecker-Jones-Jewell Milling Company. From an order denying defendants’ motion for a bill of particulars, defendants appeal.

<p>1. Evidence—Book of Accounts.</p> <p>The testimony of several witnesses that they settled bills rendered to them, and plaintiffs testimony that such bills were correct copies of the books, is not a compliance with the rule that the party shall prove by those who have dealt and settled with him that he keeps fair and honest accounts before his books are admissible in evidence.</p> <p>2. Same—Sales—Agency.</p> <p>Where, in an action for goods sold, there was no evidence that defendant personally ordered or promised to pay for any of the goods, but there was evidence that her daughter had ordered some goods, which were delivered, it was error to exclude a question, asked the daughter, whether her mother ever requested, instructed, or directed her to order any goods of plaintiff.</p>

<p>1. Perjury—Materiality of Testimony.</p> <p>On a prosecution of a deputy commissioner of city works for conniving at the audit and allowance of fraudulent claims against the city with intent to defraud, wherein the frauds charged consisted of the awarding of contracts for public improvements pursuant to a fraudulent arrangement with a certain contractor, whereby the contractor was to pay defendant a percentage on the contracts awarded him, the testimony of such contractor that he had furnished defendant with the names of men who would hid for the contracts as his representatives, and that he paid defendant the percentage agreed upon out of the proceeds of the contracts awarded him, was upon matters material to the prosecution, within the meaning of Pen. Code, § 96, providing that one who willfully and knowingly testifies on oath as to any material matter shall be guilty of perjury.</p> <p>2. Same—Testimony as to Memory of Material Matters.</p> <p>Where a witness on a criminal prosecution knows and remembers wnat occurred between himself and defendant in connection with the crime charged, and such occurrences are material to the determination of defendant’s guilt or innocence, the false testimony of such witness-that he does not remember such occurrences is perjury, within Pen. Code, § 96, providing that any- one who willfully and knowingly testifies falsely in any material matter, or states in his testimony that any material matter is true which he knows to be false, shall be guilty of perjury.</p> <p>8. Same—Prosecution—Circumstantial Evidence—Sufficiency without Direct Testimony—Former Testimony—Contradictory Statements.</p> <p>On a prosecution for perjury by a witness in the second trial of a criminal case, in testifying that he did not remember certain transactions as to which he had given positive testimony on the former trial, evidence consisting of copies of the witness’ testimony on the first and second trials, and of his positive testimony on the trials of two other participants in the transactions as to which the alleged false testimony was given, and of affirmative recitals of the circumstances made by the witness to the district attorney prior and subsequent to the trial in which the alleged perjury was committed, was sufficient to take the-case to the jury, though no witness testified directly as to the falsity of the witness’ testimony.</p> <p>4. Same—Capacity to Remember—Admissibility of Evidence—Evidence Involving- Other Crimes.</p> <p>On the first trial of a criminal case, a contractor testified that defendant and other public officers were all engaged with him in a scheme to defraud the public, and that, pursuant to their arrangements, he had to pay defendant and the others a percentage on all contracts awarded him, amounting in all to 40 per cent. All the transactions were closely related, and the contractor described them in detail before the grand jury and on such first trial. On a second trial of such officer, the contractor-testified that he did not remember anything about a certain one of the contracts as to which he had previously given positive testimony, and subsequently he was prosecuted for perjury in the second trial; his sole defense being that his mind had become so impaired by disease that he was incapable of remembering anything. Held, that the contractor’s former testimony as to all the transactions and contracts entered into pursuant to the scheme to defraud was admissible as bearing upon his capacity to remember the particular circumstances in regard to which the alleged perjury was committed, and upon whether his testimony on the second trial was knowingly false, though such evidence involved, defendant’s connection with other independent crimes.</p> <p>Fursman, J., dissenting.</p>

Action by Bridget Reilly against the Erie Railroad Company. From a judgment for plaintiff, and from an order denying a new ffrial, defendant appeals.

Action by Jacob Fritz and another against the City Trust Company of New York, trustee under a decree of the court ordering them to interplead as to their claims to trust funds. From a judgment for defendant, plaintiffs appeal.

Action for divorc'e by Warren M. Billings against Ella M. Billings. Frank Albright defended as co-respondent. From a judgment for plaintiff, the co-respondent and defendant appeal.

<p>1. Receiving Stolen Property—Evidence—Sufficiency.</p> <p>On a prosecution for receiving stolen property, the evidence showed that defendant, who dealt in hides, bought of four hays, all under 14 years old, a Texas hide taken from a cow the summer before. It was easily distinguished from a hide taken from a cow in that vicinity. The value of the hide was 11 cents per pound, and he paid the boys 6 for it. One of the boys told him it was a hide taken from a cow by his father. The boys asked for change, so that they could divide the money. ’Held, that it was for the jury to determine whether the defendant believed the boys got the hide honestly or had stolen it.</p> <p>2. Same—Finding.</p> <p>The jury was justified in finding that the defendant knew that the hide was stolen property when he received it.</p> <p>3. Same—Former Transaction.</p> <p>On a prosecution for receiving a stolen cowhide from four boys all under 14, evidence that the defendant had bought of the same boys another stolen hide a few days before, and had told them at that time that he would buy all they could bring, was competent to show knowledge by the defendant that the hide was stolen property.</p>

<p>Appeal from special term, Westchester comity.</p> <p>Action by Charles H. Williams against the village of Port Chester. From an interlocutory judgment overruling defendant’s demurrer to</p> <p>the complaint, it appeals.</p>

Action by the Atlantic Trust Company, as trustee, against the Crystal Water Company of Edgewater and another. From a judgment in favor of plaintiff, defendant company appeals.

<p>Action by Marie D’Appuzo against Florine A. Albright. Motion to set aside verdict for plaintiff and dismiss the complaint.</p>

Suit by John W. Goodwin against Rushanna Goodwin for the annulment of a marriage between the parties. From a judgment for plaintiff, defendant appeals.

Action by Mary A. Luessen against Frederick Morich and another as executors of the will of Paul Morich, deceased. From a judgment for plaintiff, defendants appeal.

<p>1. Partition—Issues Triable.</p> <p>Plaintiff in partition against his sister and father claimed an undivided one-half of the premises under a deed to himself and respondent sister, and alleged that the interest claimed by the father was derived from the sister. Respondents controverted his title, alleging that the deed under which he claimed had never been executed and delivered. 'Held, that the issues were' properly triable in partition.</p> <p>2. Same—Parties.</p> <p>Under the issues formed, the sister and father were proper parties.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Harry Berliner against Pequa Club Association. Defendant had judgment (66 N. Y. Supp. 791), and plaintiff appealed. Pending the fixing of the case on appeal; plaintiff moved for leave to file an exception nunc pro tune. From an order denying the motion, movant appeals.</p>

Supplementary proceedings for collection of a tax against Wright, Peters & Co. From an order denying a motion of the corporation proceeded against to dismiss the proceeding, movant appeals.

ÁppeáVfrom special term; Action by the Brooklyn & Rockaway Beach Railroad Company against the Long Island Railroad Company and another. From a judgment for plaintiff, defendants appeal.

Action by Celia Galligan against Timothy Galligan. Defendant died pending the action, and Margaret Galligan, administratrix and guardian ad litem of defendant’s infant children, was substituted as defendant. From an order amending a judgment for plaintiff, she appeals.

<p>1. Evidence—Transaction with Deceased Party.</p> <p>In an action against an administrator for services rendered decedent, testimony by plaintiff as to the rendering of the services, their value, and of conversations had with deceased, was incompetent.</p> <p>2. Services Rendered Deceased Person—Claim against Estate—Sufficiency of Evidence.</p> <p>Plaintiff was 70 years of age, blind, and penniless, and made the grocery store of a sister-in-law a stopping place, voluntarily assisting her in various ways for six years, and never presenting any account for his services, or receiving any payment other, than small articles occasionally given him from the store. After her death he claimed compensation for the services. 'Held to fall short of the convincing proof required to establish such claims.</p>

<p>Appeal from special term, Nassau county.</p> <p>Action by the Jamaica Savings Bank against Harry Taylor and others. From a judgment for plaintiff, defendants appeal.</p>

<p>Injunction—Building of Turnpike—Delay in Tide—Damage.</p> <p>Where defendant has received full approval from the federal authorities to erect a turnpike road, with certain bridges and spans, across a bay in which the tide ebbs and flows, the fact that such structure will delay the movement of the high tide for some minutes is not ground on which to enjoin the construction of such road, in the absence of a showing that such delay will damage the property lying on or underneath such bay.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by L,evi L. Gans against Tillie Wormser. From a judgment for defendant, and from an order denying a new trial, plain-■f"1TT ÍIDDPÍl iQ</p>

<p>Appeal from i unicipal court, borough of Manhattan.</p> <p>Action by Michael Ostroslcy against William Heinle, impleaded with another. From a judgment for plaintiff against defendant Heinle, he appeals.</p>

<p>Action— Counterclaim—Burden op Proof—Evidence—Verdict.</p> <p>Where, in an action to recover overpayment of wages, and damages for failure to perform a contract for services as bookkeeper, defendant interposed a counterclaim for unpaid wages, and her uncorroborated testimony that she was employed for plaintiff during the time for which such wages were claimed was- unqualifiedly contradicted by plaintiff, and inconsistent with a statement of their account in plaintiff’s band-writing, indorsed by her with her initials, and with a letter written by her to him, a verdict in her favor on the counterclaim was not justified.</p>

<p>Building Contract—Construction.</p> <p>Where defendant engaged plaintiffs to make plans for a building to cover his entire lot, and plaintiffs submitted plans leaving vacant part of the lot, on the ground that the law did not permit such construction as defendant desired, and there is nothing to show that such construction was prohibited, there can be no recovery for the value of their services on defendant’s refusal to accept their plans</p>

<p>Partnership—Existence—Evidence—Perjury.</p> <p>Where the evidence in an action for contribution from defendant for the amount of a judgment paid shows that the action in which such judgment was recovered was brought against plaintiff and defendant as' partners, and that plaintifE filed a verified answer therein, denying the existence of the partnership, no recovery can be had.</p>

<p>Continuance—Bill on Particulars—Objections—Laches.</p> <p>Where, In an action by an agent for commissions, no objections to the sufficiency of a bill of particulars are taken until three weeks after the filing thereof, and no reason given for the delay, a postponement of the trial is properly denied.</p>

<p>Carriers—Injuries to Passenger—Evidence.</p> <p>Plaintiff, a passenger, while leaving defendant’s car, stepped on a nail which penetrated his shoe and entered one of his toes, remaining there. No direct proof was given that the nail came out of the floor of the car. Defendant proved that the car had been inspected an hour before the accident, and that a matting covered the floor. 'Held that, since the evidence was as equally consistent with the absence as with the existence of negligence, plaintiff could not recover.</p>

<p>Appeal from city court of New York, general term.</p> <p>Action by Jacob Greenspan against Max Newman and others. From a judgment of the general term of the city court of the city of New York affirming a judgment in favor of plaintiff, and an order refusing a new trial, defendant Max Newman appeals.</p>

<p>Appeal from municipal court, borough of the Bronx, Second district.</p> <p>Action by Jacob ICronenberger against Otto M. Bierling. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Husband and Wife—Separation Agreement—Validity.</p> <p>Articles of separation between a husband and wife, though referring in words to a separation in futuro, were valid, where, as a matter of fact, the parties were separated when they were entered into.</p> <p>2. Same—Waiver—Rescission.</p> <p>An agreement of separation made between a husband and wife was not waived or abrogated by the action of the wife in subsequently obtaining two distinct orders for alimony and counsel fees in suits for divorce and separation, respectively, and in accepting payments thereunder, especially where the sums allowed by the orders were less than those provided for in the agreement.</p>

Replevin by'Arthur J. Sprague against C. Fletcher King. From a judgment of the municipal court in favor of defendant, plaintiff appeals, and from an order modifying the judgment, defendant appeals.

<p>Appeal from municipal court, borough of Manhattan.</p> <p>Action by James Bergman against Charles A. Neidhardt. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from municipal court, borough of Manhattan.</p> <p>Action by Thomas Rosenbloom against Jessie G. Finch. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from municipal court, borough of Manhattan, First district.</p> <p>Action by the Rider-Ericsson Engine Company against Annie Y. Fowler. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal—Evidence—Admissibility—Failure to Make Objection.</p> <p>Where defendant in a personal injury case brought by an infant failed to raise the objection to evidence of plaintiff’s emancipation and loss of earnings that plaintiff’s emancipation had not been pleaded, the objection cannot be raised on appeal.</p>

<p>1. Appeal—Money Reoeiyed—Pleading and Proof.</p> <p>Where plaintiff in an action for money received alleges payment of rent for soda fountain stand to defendants, and seeks recovery thereof on the ground that a city ordinance prohibits a licensee of the city from “paying rent or other compensation to the owner or occupant of the premises where his stand shall be located,” an affirmative showing that no permit or license for a stand was issued to plaintiff will be ground for reversal of a judgment in his favor.</p> <p>■3. Same—Parties in Pari Delicto.</p> <p>Where the payment and collection of rent were prohibited by a city ordinance providing that no compensation should be paid to the owner or occupant of premises on which a stand shall be located by one holding a city license therefor, the parties are in pari delicto, and. the licensee cannot recover the rent paid.</p> <p>-3. Same—Ordinances—.Judicial Notice,</p> <p>Where the payment and collection of rent were prohibited by a city ordinance providing that no compensation should be paid to the owner or occupant of premises on which a stand shall be located by one holding a city license therefor, proof of the ordinance must be given, as judicial notice cannot be taken thereof.</p>

<p>Contracts—Parol Explanation—Subject-Matter Involved—Evidence.</p> <p>Plaintiff sued for services in procuring a reduction of an assessment made in proceedings for the opening of a certain street. Defendant contended that plaintiff was only retained to represent her in proceedings for the opening of a different street. The written contract authorized defendant to represent plaintiff for the purposes mentioned in an annexed schedule, which merely stated in general terms the rates charged for representing property owners in procuring reductions of assessments in street-opening proceedings. Defendant testified that it was orally agreed that the contract only related to the street as claimed by her, and this evidence was uncontradicted. 'Held, that evidence that proceedings for the opening of the street to which defendant claimed that the contract related were pending, at the time the contract was made, was improperly excluded.</p>

Action by Nathan Scheurer and others against Morris L. Monash in which defendant filed a cross complaint. From a judgment in favor of defendant on his cross complaint, plaintiffs appeal.

<p>Appeal from municipal court, borough of Manhattan, Fifth district.</p> <p>Action by Selig Thai against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Contracts—Consideration—Settlement of Dispute under Prior Contract.</p> <p>Plaintiff! agreed to do all the plumbing in defendants’ building for a fixed price, and after having put in place a portion of the material it was-stolen, defendants at the time having a watchman in the building. Plaintiff refused to replace the stolen parts unless paid therefor, and defendants told him to do the work and they would pay him. Held, that in a suit for the material so used plaintiff was entitled to recover on defendants’ oral agreement to pay, the settlement of the dispute as to-liability for the stolen property being a sufficient consideration therefor.</p>

<p>Appeal from municipal court, borough of Manhattan.</p> <p>Action by Bernard Greeser against Joseph Sugarman. From a judgment for plaintiff, defendant appeals.</p>

. Appeal from city court of New York, general term. Action by Ephraim Corotinsky against Harry Maimin, the name' Harry being fictitious. From a judgment of the general term off the city court of the city of New York (74 N. Y. Supp. 1123) affirming a judgment. in favor of plaintiff, defendant appeals.

<p>1. Agency—Power to Contract—Evidence—Sufficiency.</p> <p>In an action on a contract claimed to have been made on behalf of defendant by the general manager of his hotel, the latter testified that he signed the contract, and that he superintended the conduct of the hotel throughout. ‘Held a sufficient showing of the manager’s authority to make the contract</p> <p>2. Same—Scope op Authority.</p> <p>Evidence that the manager gave orders to tradespeople in matters-pertaining to the hotel, and stood in the place of defendant during the latter’s absence, was improperly excluded.</p>

Action by the East River Bank against Thomas R. De Lacy and Isaac L. Smith. From an order of the general term of the city court of the city of New York (74 N. Y. Supp. 925) modifying an order in supplementary proceedings adjudging defendant Smith guilty of contempt, he appeals.

<p>Appeal from municipal court, borough of the Bronx, Second district.</p> <p>Action by John H. C. Johansmeyer against Edward W. Kearney and others. From a judgment in favor of defendants, plaintiff appeals.</p>

Action by the W. M. Ritter Lumber Company against Alexander S. Bacon and others. From an order of the general term of the city court of. the city of New York (74 N. Y. Supp. 923) affirming an order denying a motion to. compel acceptance of an answer, defendants appeal.

Actipn by Charles Brein against Max Light. From an order (72 N. Y. Supp. 655) affirming an order of special term of the city court directing Mark Jacobs, a receiver appointed in proceedings supplementary to execution, to pay over to Abraham Eisenbud the sum of $158, he appeals.

<p>1. Action on Contract—Evidence.</p> <p>A written contract provided that, in consideration of a certain sum, defendant should assist in the formation of a corporation within a reasonable time. After payment of the consideration, defendant executed a writing agreeing to return the sum paid if the corporation was not formed. In an action to recover the consideration, plaintiff's counsel and the plaintiff himself, as a witness, stated that the action was on the instrument executed by defendant. 'Held, that testimony as to any breach of the first contract was inadmissible, except as touching upon the question of consideration for the second instrument.</p> <p>2. Same—Consideration.</p> <p>There being no evidence that, at the time the second instrument was executed, plaintiff claimed" that a reasonable time had elapsed, or that defendant desired more time, the second instrument was without consideration.</p>

Action by William C. Rodger against the Toilettes Company.From a judgment of the general term of the city court of the city of New York affirming a judgment in favor of plaintiff, defendant appeals.

Action by Howard E. Parker against J. Overton Paine and others. From a judgment of the general term of the city court of the city of New York affirming a judgment in favor of plaintiff, and an order refusing a new trial, defendant Paine appeals.

Action by Hyman Olansky and another against Zax K. Berlin, impleaded, etc. From a judgment and order of general term affirming a judgment in favor of plaintiffs, and affirming an order denying defendant Zax K. Berlin’s motion for a new trial, he appeals.

<p>Appeal from municipal court, borough of Manhattan, Tenth district.</p> <p>Action by Colman J. Mullin against John Langley. From a judgment of the municipal court, Tenth district, borough of Manhattan, in favor of plaintiff, defendant appeals.</p>

<p>Appeal from municipal court, borough of Manhattan, Fifth district.</p> <p>Action by Max Kest against Max B. Kimmel and another. From a judgment for plaintiff, defendants appeal.</p>

^ Action by Edwin Weston and another against Frederick F. Proctor. From a judgment in favor of plaintiffs, defendant appeals. The pleadings were verified. The complaint alleged a cause of action for a breach of contract of employment, and the answer admitted the employment, but set up certain new matter in justification of defendant’s failure to perform the contract. The material facts are stated in the' opinion.

<p>Appeal from trial term.</p> <p>Action by Richard H. Krall and others against James H. Howard! and others. From a judgment for plaintiffs, defendants appeal.</p>

Action by Seward Prosser and another against Henry W. Miller. From a judgment for defendant and from an order denying a new trial, plaintiffs appeal.

<p>1. New Trials—Newly Discovered Evidence.</p> <p>Where the tacts are known at or before the trial, but for some unexplained reason the evidence cannot be obtained in time for the trial, such evidence is not newly discovered.</p> <p>2. Same—Effect of Evidence.</p> <p>Where, on a motion for new trial on the ground of newly discovered evidence, it is doubtful whether such evidence would affect the result, an order denying the motion will not be reversed.</p> <p>3. Same—Instructions—Exceptions—Evidence—Verdict.</p> <p>Where there was no exception to the charge, or request for a different submission, and the evidence was conflicting, an order denying a new trial will not be reversed.</p>

<p>"Dismissal of Action—Want of Prosecution—Error.</p> <p>A case, when reached for trial, was by consent marked “Reserved generally,” and the same entry made nine monthsi later. After remaining on the calendar for over four years more, a motion to dismiss for want of prosecution was made, and the plaintiff requested another opportunity to bring the case to trial. The defendant was partially responsible for the delay. Reid, that the motion should have been denied.</p>

Action by Katherina Lauck against the Metropolitan Street Railway Company. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals.

<p>Action—Bent—Evidence—Sufficiency.</p> <p>In an action for installments of rent which became due on August 1st and September 1st, the answer denied that there was rent due from August 1st. Plaintiff testified that he had no remembrance of the amounts paid, and could not say how many payments were made, or what the payment made July 31st was for, but presumed it was for rent; he knew defendant left owing two months’ rent; his books would show, but he did not have them there. He was not asked to bring them. Held, that the testimony did not support the claim for the two months’ rent.</p> <p>O’Dwyer, J„ dissenting.</p>

<p>Appeal from special term.</p> <p>Action by Simon Uhlfelder and another against Thomas J. Dunn, sheriff of the county of New York, and another. From a judgment dismissing the action for want of prosecution, and granting affirmative relief, plaintiffs appeal.</p>

<p>Slander—Moral Turpitude.</p> <p>In an action for slander, the language alleged to have been employed was, “You are a dirty, drunken cur; you are lying around the house drunk more than half the time; you are drunk now; you have poisoned all the cats and dogs in the neighborhood, and have scalded my cat and kicked my dog, and have persecuted a poor woman, and have robbed her of her rights.” Held, that such words do not impute a crime invQlving moral turpitude.</p>

Action by George F. Waldeck against Lewis A..Cushman. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Albert L. Parkes against the Metropolitan Street Railway Company. Plaintiff appeals from a judgment dismissing the case.</p>

<p>Appeal from special term.</p> <p>A.ction by the State Bank against John Spence and others, doing business as the Bell Manufacturing Company. From an order advancing the cause to short-cause calendar, the defendants appeal.</p>

Action by Julius Imgard and another, as executors, against John J. Ashley. From a judgment in favor of the plaintiffs and an order denying a motion for a new trial, defendant appeals.

Action on a note by the Mechanics’ & Traders’ Bank against. B. Gerson Oppenheim and another. From a judgment on a verdict directed for plaintiff, and from an order denying a new trial,, the defendants appeal.

<p>1. Judgment on Pleadings—Frivolous Answer.</p> <p>Where an answer sets up affirmative matter, which, if true, would tend to establish a set-off, it should not be dismissed as frivolous, however improbable its allegations may appear.</p> <p>2. Same—Test op Sufficiency.</p> <p>The test as to whether a pleading is frivolous is not whether a. demurrer would lie, but whether it shows upon its face that it is without merit</p> <p>5. Same.</p> <p>Where counsel must be heard, and statutes and decisions examined, in order to determine whether a pleading is sufficient, it cannot be said to show upon its face that it is without merit</p>

<p>Appeal from trial term.</p> <p>Action by Rudolph Hess against Nathan Citron and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.</p>

Action by Morris Wise against the International Society. From a judgment for plaintiff, and from an order denying a new trial, and from a motion to set the judgment aside, defendant appeals.

Action on an undertaking in replevin by William Frances Clemmons against Louis Gordon and others. From an order granting leave to plaintiff to serve an amended complaint, defendant Louis Gordon appeals.

Action by Hannah Phillips against the United States Grand Lodge Independent Order Sons of Benjamin. From a judgment for defendant, and from an order denying motions to set aside the verdict and for a new trial, plaintiff appeals.

Action by Louis Mitterwallner against the Supreme Lodge, Knights and Ladies of the Golden Star. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Pleading—Amendment after Trial—New Issue—Payment of Costs.</p> <p>Where two jury trials were had, the verdict being for plaintiff in each instance, and the judgments thereon were reversed on technical grounds, and not on the merits, leave to file an amended answer setting up a counterclaim should be granted only on payment of all accrued costs by defendant</p>

<p>Brokers—Loans—Commissions—Pleading.</p> <p>A complaint alleging that defendant agreed to pay plaintiff's commissions on a loan “to he procured hy them for her,” and that they obtained a person ready and willing to make the loan, but the same was not made owing to defendant’s inability to deliver a. bond and mortgage because of incumbrances on her property, did not state a cause of action, as it did not allege that defendant was aware of the securing of the lender, or that the loan was actually secured.</p> <p>O’Dwyer, J., dissenting.</p>

<p>Action by the Barrett Chemical Company against Julius Stern. A. L. Pincoffs, for appellant. C. B. Meyer, for respondent.</p>

<p>Application by Edward E. Brush for a recount of the votes of the ballots cast for mayor of the city of Mt. Vernon. Questions determined, and count ordered accordingly. See 76 N. Y. Supp. 597. Roger M. Sherman, for appellant. Charles W. Sinnott (William N. Dykman and William A. Ferguson, on brief), for respondent.</p>

<p>Action by Charlotte A. Cipperly against Charles G. Eddy and another.</p>

<p>Action by Edmund F. Driggs against the city of New York.</p>

<p>Action by the David Stevenson Brewing Company against Olga Rebecca Jordan.</p>

<p>Action by George W. Crooks, as trustee, against the People’s National Bank of Malone.</p>

<p>Action by Charles B. Du Bois and another against John J. Zimmerman and another.</p>

<p>In the matter of the application of the Edison Electric Illuminating Company of Brooklyn for a peremptory writ of mandamus, etc.</p>

<p>Action by the Forestport Lumber Company against the state of New York.</p>

<p>Action by Sarah A. Freeborn against the New York Elevated, Railway Company. F. S. Williams, for appellant. C. H. Strong, for respondent.</p>

<p>Action by Adolf Goldmark against the Magnolia Anti-Friction Metal Company. • A. S. Bacon, for appellant.</p>

<p>Action by James J. Gallagher, Jr., against the state of New York.</p>

<p>Action by James J. Gillespie against the United Traction Company.</p>

<p>Action by Philo C. Hubbell against Nellie Henrickson, impleaded, etc.</p>

<p>Action by Marie L. Jaeger against Margaretha Koenig, as executrix. G. H. Hart, for appellant. S. Scoville, Jr., for respondent.</p>

<p>Supplementary proceedings for collection of a tax against J. W. Gillis & Co. From an order denying a motion of the corporation proceeded against to dismiss the proceeding, movant appeals, Reversed. John A. Barhite, for appellant. Abraham Benedict, for respondent.</p>

<p>Action by Frederick Komp against James T. Raymond, as president. J. S. Epstein, for appellant. J. L. Hill, for respondent.</p>

<p>Action by Henry O. Kennedy against John W. Hallauer and another.</p>

<p>Action by-George Keister against William Rankin. C. De H. Brower, for appellant. E. A. Hibbard, for respondent.</p>

<p>Application of John N. Golding for the taxation of the compensation due to him for services as an expert appraiser and witness for the city of New York in proceedings to acquire title to certain real estate. From an order fixing his compensation the city appeals. Reversed. Theodore Connoly, for appellant. John Lindley, for respondent.</p>

Mortimer Burns was convicted of rape, and from the judgment, an order denying motion for arrest of judgment, and an order denying defendant’s motion for a new trial, he appeals. Affirmed. Robert L. Drummond, for appellant. Harry T. Dayton, Dist. Atty., for the People.

<p>Proceeding by the people of the state of New York against the Commercial Bank.</p>

Petition for mandamus, on relation of Henry E. Abell, against Bird S. Coler, as comptroller of New York City. From an order denying the writ, relator appeals. Affirmed. Abram I. Elkus, for appellant. Theodore Oonnoly, for respondent.

Mandamus by the people, on the relation of Thomas G. Coyne, against John L. Shea, as commissioner of bridges of the city of New York, and others. From an order denying a motion to resettle an order denying the writ, relator appeals. Affirmed. Joab H. Ban-ton, for appellant. Theodore COnnoly, for respondents.

<p>Proceeding by the people of the state of New York, on the relation of Jacob W. Falk, against Charles Guden.</p>

<p>Proceeding by the people of the state of New York, on the relation of Jacob W. Falk, against Norman S. Dike.</p>

<p>Actions by August Reiss and by Charles Weber against the Town of Pelham.</p>

<p>Action by Frank Rushterfer against the village of Tonawanda.</p>

<p>Action by Amelia Russell against the Prudential Insurance Company of America. From a judgment entered on a verdict against defendant for $1,131.63, and from an order denying a new trial, defendant appeals. Affirmed. D. Raymond Cobb, for appellant. Frederick A. Kuntzseh, for respondent.</p>

<p>Action by Sam Saffier against “Yon” Motchkol, first name fictitious, real name unknown to plaintiff.</p>

<p>Action by Martha R. Scott against the Third Avenue Railroad Company.</p>

<p>Action by Ella D. Spencer as administratrix, etc., against the town of Sardinia.</p>

<p>Action by Barnard L. Steefel and Joseph L. Steefel against J acob Rothschild.</p>

<p>Action by Jessie Suydam against the Brooklyn Heights Railroad Company.</p>

<p>Action by George Steinson against the board of education. G. Steinson, in pro. per. T. McIIvaine, for respondent.</p>

<p>Action by Frances G. Sweet against Katharine M. Corbit, Caroline O. Fuller, individually and as executrix, and Almena Fuller.</p>

<p>Action by William Syphert and others against the state of New York.</p>

<p>Action by Oarmi A. Thompson, as administrator, against Samuel Thomas. J. J. Crawford, for appellant. H. Siegrist, Jr., for respondent.</p>

<p>Action by the Watertown Paper Company and another against Josiah W. Place, as assignee. J. A. Arnold, for appellants. L. S. Amoreaux, for respondent.</p>

<p>Action by Rose Weissboum against David Guth.</p>

Action by Sylvester Wilcox against the American Telephone & Telegraph Company. From a judgment entered on a directed verdict in favor of defendant, and from an order denying a new trial, plaintiff appeals. Affirmed. Jay K. Smith, for appellant. Elbridge L. Adams, for respondent.

<p>Action by Annette B. Wetmore (now Annette B. Markoe) against William B. Wetmore. T. P. Wickes, for appellant. F. B. Candler, for respondent.</p>

Suit for injunction by Isodore Wormsor, Jr., against the Metropolitan Street Railway Company, and another. From an order denying a motion to continue an injunction pendente lite (76 N. Y. Supp. 151), plaintiff appeals. Affirmed. E. Ellory Anderson, for appellant. Charles F. Brown, for respondents.

<p>Action by the Woodhall Lumber Company against the state of New York.</p>