Volume 77 — New York Appellate Division Reports

Motion by the plaintiff, Halbert Gray, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of - the court after a trial at the Cayuga County Trial Term.

<p>Agency—proof of—declarations of the agent as — contract not within the scope of a corporation’s business — it must be authorized by the board of directors.</p> <p>The authority of an agent to do a specific act on behalf of a principal may be proved by the instrument creating the agency or by verbal statements of the principal showing that the principal has held the agent out to the world in other instances as having authority embracing the particular act in question; but such authority cannot be established by the unauthorized representations of the alleged agent not made in connection with some act done in performance of his duties as agent.</p> <p>A contract made by the assistant manager of a domestic brewing corporation, outside of the scope of its legitimate business, by which the brewing company agrees to pay for plumbing work done in a saloon belonging to one of its customers, is not binding upon the corporation in the absence of proof that the board of directors of the corporation authorized its assistant manager to make such a contract.</p>

<p>Appeal by the defendant, William Goldie, Jr., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the cleric of the county of Erie on the 30th day of July, 1902, adjudging the defendant guilty of contempt for an alleged failure to pay temporary alimony in pursuance of two orders theretofore entered in the action.</p>

Appeal by the defendants, Andrew Ochs, individually and as administrator, etc., of Josephine Speidel, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 22d day of January, 1902, upon the decision of the court rendered after a trial at the Erie Special Term.

<p>Tax upon personalty—remedy where other parties liable to assessment have been omitted from the rolls — what objections can be raised in proceedings to collect a tax — necessity of affixing seals to assessment rolls — acts to legalize taxes and local assessments—when unconstitutional.</p> <p>The remedy of a person, assessed by the assessors of the city of Rochester for personal property, who is displeased with the action of the assessors in omitting from the assessment roll other persons taxable for personal property, is by certiorari proceedings under chapter 908 of the Laws of 1896. He cannot raise that objection in a proceeding for the collection of the tax instituted against him under section 82 of the city charter (Laws of 1880, chap. 14, as amd. by Laws of 1890, chap. 561).</p> <p>When the taxing officers were without jurisdiction to impose an assessment, the assessment is void and its invalidity may be asserted in any proceeding to collect the tax.</p> <p>The requirement as to the affixing of a seal contained in section 86 of the charter of the city of Rochester, which provides that the warrant for the collection of taxes shall be issued under the hand of the mayor and the seal of the city Of Rochester, is mandatory, and a warrant issued under the hand of the mayor without the seal of the city is void and payment of the taxes cannot be enforced.</p> <p>Chapter 200 of the Laws of 1901 and chapter 719 of the Laws of 1901, entitled respectively, “ An act to amend the charter of the city of Rochester relative to expenses incident to improvements," and “An act to amend * * * and to consolidate therewith the several acts in relation to the charter of said city relative to expenses incident to improvements,” by which the Legislature has sought to legalize every general tax or local assessment upon any real or personal property in the city of Rochester, violate section 16 of article 3 of the State Constitution, which provides, “ No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title."</p> <p>McLennan, J., dissented.</p>

<p>Appeal by the defendant, Willis T. Gridley, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, 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, overruling a demurrer to the complaint.</p> <p>The defendants demurred to the plaintiff’s complaint herein, upon the ground that it did not state facts sufficient to constitute a cause of action, and from the judgment overruling such demurrer this appeal is brought.</p> <p>The complaint demands judgment for the sum of three thousand seven hundred and fifty dollars ($3,750) damages for the alleged wrongful breach of a written contract entered into between the parties hereto, of which the following is a copy:</p> <p>“ This agreement made this 22nd day of November, 1897, by and between Francis W. Gridley and Willis T. Gridley, of Syracuse, N. Y., of the first part, and Frank M. Bonta, of the same place, of the second part, Witnesseth :</p> <p>“Whereas, parties of the first part, being large holders of the capital stock of the Salt Springs National Bank of Syracuse, are desirous that said second party should purchase stock thereof, and should remain with said bank and use his time and influence to promote its prosperity; now, in consideration of the covenants and agreements herein contained, to be performed by said second party, said parties of the first part jointly and severally covenant and agree to and with said party of the second part as follows:</p> <p>“ 1. The said party of the second part shall be elected (unless he, himself, uses his own influence to prevent his election) cashier of the Salt Springs National Bank at the annual meeting thereof, to be held in January, 1898, and shall continue to hold such office for the space of five (5) years, or until the annual meeting to be held in January, 1903, unless he sooner voluntarily resigns such position, as hereinafter provided.</p> <p>“ 2. He shall receive for his services as such cashier the annual salary of twenty-five hundred dollars ($2,500).</p> <p>“ 3. He .shall have the power and authority and shall perform the duties usually performed by cashiers of National Banks in Syracuse, not inconsistent with law, subject to the by-laws of the bank and the resolutions of the discount committee and Board of Directors of said bank relative to loans.</p> <p>“ 4. Said first parties will purchase of said second party the fifty (50) shares of the capital stock of said bank purchased by him, as herein provided, at any time when he ceases to be cashier thereof, and pay him one hundred and thirty-five dollars ($135) per share therefor.</p> <p>“ In consideration of the premises said party of the second part covenants and agrees to and with said parties of the first part, that during the five years above described, or so long as he may remain cashier of said Salt Springs National Bank (he hereby expressly reserving the right to resign such position at any time), he will devote his whole time and attention to the promotion of the interests of the said Salt Springs National Bank, and will exercise such influence as he may possess in favor of said bank and toward retaining the services of the present board of directors. He further covenants and agrees to buy fifty shares of the capital stock of the Salt Springs National Bank at a price not to exceed one hundred and thirty-five dollars ($135) per share.</p> <p>“The said parties hereto further jointly and severally covenant and agree to and with each other, that in case of the breach by any of the parties hereto of the covenants and agreements herein contained, or any of them, that the party guilty of such breach shall pay to the other, in case such breach occurs during the year 1898, five thousand dollars ($5,000); in case the breach occurs in the year 1899, four thousand dollars ($4,000) ; in case it occurs during 1900, three thousand dollars ($3,000); in case it occurs during the year 1901, two thousand dollars ($2,000); and in ease it occurs during the year 1902, one thousand dollars ($1,000) ; the said sums herein provided for to be considered as liquidated damages for the breach of this contract or any part thereof, and in no respect as a penalty.</p> <p>“ In Witness Whereof, the parties have hereunto set their hands and seals of the day and year first above written.</p> <p>“ FRANGIS W. GRIDLEY. [l. s.]</p> <p>“ WILLIS T. GRIDLEY. [l. s.]</p> <p>“F. M. BONTA. [l. s.j”</p> <p>It is alleged in the complaint that in or about December, 1897, the plaintiff, in pursuance of the covenant in said agreement upon his part, purchased fifty shares of the capital stock of said bank,, and paid therefor $135 per share; that the plaintiff entered upon the performance of his duties as cashier of said bank and faithfully performed all the conditions upon his part until about the 11th day of September, 1901, when, without any fault on his part, he was discharged and removed as such cashier, and thereupon ceased to be cashier thereof; that thereafter, and on or about the eleventh and eighteenth days of September respectively, the plaintiff tendered to said Willis T. Gridley and Francis W. Gridley said fifty shares of stock, and demanded the sum of $135 per share, and requested them to purchase the same at said .price, as in said agreement undertaken by them to do, which they and each of them refused to do; that thereafter, and on the 30th day of September, 1901, plaintiff caused said stock to be sold at public auction to the highest bidder, after due notice to said defendants and each of them, and after due public notice of said proposed sale, and upon such sale received for such stock only $100 per share. The loss of $35 per share, amounting in the aggregate to the sum of $1,750, added to the amount of the liquidated damages which each of the parties of the first part, the defendants, agreed to pay in case a breach of said agreement occurred during the year 1901, to wit, $2,000, constitutes the damages which the plaintiff seeks to recover.</p>

Appeal by the defendant, the Lehigh Valley 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 Ontario on the 2d day of July, 1901, upon the verdict of a jury for «$8,000, and also from an order entered in said clerk’s office on the 2d day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Lehigh Valley Railroad 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 Ontario on the 2d day of July, 1901, granting the plaintiff an extra allowance of $400, that sum being five per cent of the verdict of $8,000 recovered by the plaintiff.

<p> An assignment by a, husband of a policy of insurance issued on Ids life for his wife's benefit is a consent to the wife’s assignment thereof. </p> <p>Chapter 248 of the Laws of 1879, requiring the written consent of a husband to an assignment by his wife of a policy of insurance issued upon the husband’s life for the benefit and use of the wife, is satisfied where the husband, contemporaneously with the assignment by the wife and as a part of the same transaction, executes a separate assignment of the policy to the assignee on the same sheet of paper which contains the assignment from the wife.</p>

Appeal by the plaintiff, Henry Sundheimer, 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 15th 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 11th day of February, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, John Owen and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of May, 1902, denying said defendant’s motion to amend the judgment theretofore entered in the action.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Samuel Emery, 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 1st day of March, 1902, upon the dismissal of the complaint after a trial before the court and a jury at the New York Trial Term.

Appeal by the defendant, Janet T. Malcolm, as executrix, etc., of James F. Malcolm, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of April, 1902, upon the verdict of a jury, 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 defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of May, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Albert Reitman, a judgment creditor of Isidor Henry, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of New York on the 6th day of September, 1902, directing said judgment creditor to pay the costs of the action to the defendants’ attorney.

Appeal by the plaintiff, Bridget M. Kelly, from a judgment of the Supreme Court bearing date the 24th day of March, 1902, and entered in the office of the clerk of the county of New York, upon an order of the Supreme Court made at the New York Trial Term, which order was entered in said clerk’s office on the 24th day of March, 1902, dismissing the complaint, and also from the order upon which the said judgment was entered.

<p>Appeal by the plaintiffs, Almira G. Fisk and another, as administrators, etc., of Henry G. Fisk, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 7th day of July, 1902, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.</p>

Cross-appeals by the plaintiff, The Blumenberg Press, and by the defendant, The Mutual Mercantile Agency, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 30th day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, in an action to foreclose an artisan’s lien.

Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York, on the 21st day of February, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, James Gordon Bennett, 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 22d day of January, 1901, upon the verdict of a jury for $40,000, and also from an order entered in said clerk’s office on the 21st day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, James Ralph Philips, from a judgment of the Supreme Court in favor of the defendant, Martha B. Philips, individually and as executrix, etc., of F. Stanhope Philips, deceased, entered in the office of the clerk of the county of New York on the 24th day of December, 1901, upon the verdict of a jury rendered by direction of the court sustaining the probate of the will,of F. Stanhope Philips, deceased.

Appeal by the defendants, Frieda Hart and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of March, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, foreclosing a mortgage on real property.

Appeal by the plaintiff, Wolf Cohen, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 25th day of November, 1901, setting aside a verdict theretofore rendered in favor of the plaintiff and directing a new trial of the action.

<p> The cost of store fixtures as evidence of value. </p> <p>The cost of store fixtures is competent evidence of their value.</p>

Appeal by the defendant, the Emigrant Industrial Savings Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Frederick W. Sander, “in his own behalf and in behalf of over 350 other property owners, lessees, parties and persons interested in property in the City of New York within the possible area of assessment herein,” 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 8tli day of July, 1902, appointing commissioners of assessment.

<p> Will—proof required to admit it to probate, where the attorney who prepares it and attends to its execution is a benejicia/ry thereunder. </p> <p>Upon a proceeding for the prohate of a will it appeared that the decedent had no children; that his next of kin were a sister and an infant child of a deceased brother; that the decedent was addicted to drink, and that the proponent of the will, who, by the terms thereof, was appointed sole executor and given one-half of the testator’s estate, was a lawyer to whom the decedent had given a sum of money which the proponent was accustomed to dole out to the decedent from day to day in sums sufficient to gratify his appetite for drink and to provide the means of existence. The will was drafted by one of the proponent’s clerks and was executed in the proponent’s office. The only persons present at the time of the execution were the decedent, the proponent and the two subscribing witnesses. One of the subscribing witnesses was a clerk of the proponent and the other a clothing dealer from whom the decedent was in the habit of purchasing clothes upon the order of the proponent.</p> <p>The subscribing witnesses testified to the execution of the will in conformity with the requirements of the statute. Evidence was also given tending to show that the decedent was sober and of sound mind when he executed the will. There was no evidence of the testamentary intention of the decedent prior to the execution of the will or that he gave any instructions for its preparation or had any independent advice upon the subject.</p> <p>field, that the relations between the decedent and the proponent were such as to impose upon the proponent the burden of proving by evidence other than that of the formal execution of the instrument that it was the free, untrammeled and intelligent expression of the wishes and intention of the testator;</p> <p>That no such affirmative evidence had been given, and that the surrogate was justified in refusing to admit the will to probate.</p>

<p>Ettbeas corpus — the writ will not be issued where the applicant has been admitted to bail—in case of his surrender by his bail it may issue.</p> <p>A person, who has been arrested upon a criminal charge and has been admitted to bail, is not entitled to a writ of certiorari or of habeas corpus, under section 2015 of the Code of Civil Procedure, “for the purpose of inquiring into the cause of the imprisonment or restraint,” as the imprisonment or restraint referred to in the section is an actual physical restraint by which the liberty of the individual is in some way restricted.</p> <p>If the relator should be surrendered by his bail and thus be actually in custody, he would be entitled to have the cause of his detention reviewed by such a writ of habeas corpus or of certiorari.</p>

<p>Appeal by the defendant, Thomas Sturgis, commissioner of the fire department 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 27th day of June, 1902, granting the relator’s motion for a peremptory writ of mandamus requiring the defendant to replace the relator’s name upon the rolls of the fire department of the city of New York and to restore him to the position of assistant foreman in said fire department.</p>

<p>Appeal by Samuel Lenox Tredwell, individually, and as trustee under the will of Seabury Tredwell, deceased, and as administrator with the will annexed of Seabury Tredwell, deceased, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 1st day of July, 1902, denying his motion to vacate an ex parte order reviving a final accounting commenced by Eífingham H. Ni.chols, as executor, etc., of Seabury Tredwell, deceased.</p>

Appeal by the defendant, The Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of March, 1902, upon the verdict of a jury for $2,000, and also from, an order entered in said clerk’s office on the 25th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, George W. Quaekenboss, 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 8th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the plaintiffs, J. Henry Lane and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of July, 1902, changing the place of trial of the action from the county of New York to the county of Albany.

<p> Beference—it cannot be ordered until an issue as to the existence of a partnership is first determined. </p> <p>Where the complaint, in an action for an accounting, alleges that the parties were copartners and the answer denies the existence of the partnership, an order of reference cannot be granted, under section 1013 of the Code of Civil Procedure, until the issue as to the existence of the partnership has been first determined.</p>

<p>Appeal by the plaintiff, William Sheehan, 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 8th day of April, 1902, upon the decision of the court rendered after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 29th day of April, 1902, denying the plaintiff’s motion to correct the judgment entered as aforesaid by striking therefrom the words “ upon the merits.”</p>

Appeal by the relator, Charles L. Cooke, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of September, 1902, denying the relator’s motion for an alternative writ of mandamus.

<p>Appeal by the defendant, John M. Swasey, from a judgment of the Court of General Sessions of the Peace in and for the city and county of Mew York in favor of the plaintiff, entered on the 9th day of July, 1902, convicting the defendant of the crime of abduction, and also from an order entered on the 9th day of July, 1902, denying the defendant’s motion for a new trial.</p>

Appeal by the relator, The Dives-Pelican Mining Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of July, 1902, dismissing a writ of certiorari to review an assessment upon personal property for the purposes of taxation, and also from a judgment in favor of the defendants entered in the office of the clerk of the county of New York on the 5th day of August, 1902,…

<p>Appeal by the defendants, Agnes K. Murphy Mulligan and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 28th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1902, denying the defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal an order made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1902, granting the plaintiffs’ motion to double the damages as assessed by the jury from September 8, 1898, to March 8, 1902.</p>

<p>Appeal by the defendant, the Providence Washington 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 New York on the 6th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the llth day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the R. M. Gilmour Manufacturing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of October, 1902, denying the defendant’s motion to vacate a warrant of attachment theretofore issued in the action.

<p>Appeal by the plaintiff, Henry R. Worthington, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of March, 1902, upon the dismissal of the complaint at the opening of a trial at the New York Trial Term, upon the ground that the complaint did not state facts sufficient to constitute a cause of action.</p>

Appeal by the defendant, the Monumental Mutual Life Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of October, 1902, denying the defendant’s motion to vacate and set aside the service of the summons in the action.

<p>Suit by an infant in forma pauperis—pecuniary ability of the guardian.</p> <p>Where an action is brought by an infant through a guardian ad litem, the infant will not be denied leave to prosecute the action as a poor person simply because the guardian ad litem is possessed of sufficient means to pay the expenses of the action unless it appears that such guardian ad litem is a parent of the infant.</p>

<p>Appeal by the defendant, Supreme Commandery, United Order of the Golden Gross of the World, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 28th day of May, 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 29th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.</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 New York on the 30tli day of April, 1902, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 19th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Thomas Dwyer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13th day of January, 1899, upon the dismissal of the complaint at the close of the plaintiff’s evidence on a trial at the New York Trial Term.

Appeal by the plaintiff, Henry W. Hardon, as assignee of Thomas W. Robertson, for the benefit of creditors, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 14th day of May, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Xew York Trial Term.

<p>Conviction for vagrancy in the boroughs of Manhattan and the Bronx — constitutionality of the provisions for the prisoners earlier discharge fn case of his not having been previously convicted.</p> <p>Sections 707-712 of the Greater New York charter, as amended by chapter 466 of the Laws of 1901, provide that persons convicted of vagrancy in the boroughs of Manhattan and the Bronx shall be sentenced to the workhouse on. Blackwell’s Island for a term of six months, but that if it is the prisoner’s first-offense within a period of two years the commissioner of correction shall make an order directing that he be discharged at the expiration of five days; that if it is his second offense within that time he shall be discharged at the expiration of twenty days, and that if he shall have been previously convicted two or more times within that period the order shall direct his discharge ‘ ‘ at the expiration of a period equal to twice the term of his detention under the last previous commitment, but not in any event exceeding the period fixed by the warrant of commitment.”</p> <p>The sections further provide that the prisoner may, if he so desires, obtain a hearing before a magistrate upon the question whether he has been previously convicted, and also that no prisoner committed upon conviction of vagrancy shall be discharged before the period fixed by the warrant of commitment without the written consent of the magistrate who committed him.</p> <p>Meld, that such sections were constitutional.</p>

<p>Appeal by the plaintiffs, C. Ernest Bayne and another, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 7th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiffs’ demurrer to counterclaims set up in the defendants* answer.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York •on the 2d day of May, 1902, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 4th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, George F. Shrady, 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 14th day of April, 1902, denying the plaintiff’s motion to correct a judgment theretofore entered in the action upon the report of a referee, because of certain alleged irregularities.</p> <p>The action was brought by a beneficiary under the will of Maria Shrady, deceased, to compel the sale of a large amount of realty, for the removal of trustees, a settlement of their accounts, and other relief. The issues in the action were referred to a referee to hear and determine. His report was made on October 10, 1901,. and filed in the office of the clerk on Rovember 6, 1901. That report directed that the testamentary trustees should sell all such realty at public auction, but whether for cash, on bond and mortgage, on credit, or otherwise than cash, did not appear in such report. Subsequently upon notice, the referee, on January 11, 1902, approved a judgment as to form, wherein it was provided that such real estate should be sold in separate pareéis, “ with the privilege of allowing sixty per cent of the purchase money to remain on bond and mortgage for two years.” A motion was then made to confirm the report of the referee and for entry of judgment, and the court at Special Term directed the entry of judgment in conformity with the form of judgment approved by the referee which contained the provision quoted, that upon the sale of the property sixty per cent of the purchase money should remain on bond and mortgage for two years. Thereafter plaintiff moved to strike out this and three other provisions in the judgment, upon the ground that they were unauthorized and irregularly and improperly inserted, which motion was denied, and from the order so entered the plaintiff appeals.</p>

<p>Purchaser under a judgment in partition — relieved, from his purchase where guardians ad litem for infant defendants were connected in business with the attorneys for adverse parties—who is an “ adverse party.”</p> <p>Buie 49 of the General Buies of Practice, which provides, “ No person shall be appointed guardian ad litem,” unless he “ has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party,” should be construed in its broadest sense, and when so construed the term “ connected in business ” with the attorney or counsel of the adverse party contemplates any kind of business association and includes clerks as well as partners.</p> <p>The terms “interest adverse” and “ adverse party” should receive a similar construction, and the rule should not be limited to cases wherein it has been adj udged that the interests of the infant are or are not adverse, but should be applied as well to cases in which that question is involved.</p> <p>In an action to partition real property passing under the 3d paragraph of the will of Daniel Parish it appeared that the testator devised the property to his two daughters, Susan D. Parish and Helen Parish, for life, and directed that after the termination of such life interest the property should be sold by his executors and the proceeds be divided equally among his children then living (excepting one son) and the issue, if any, of such as should have died, the issue of any deceased child taking their parent’s share per stirpes. At the end of such paragraph was a statement that the testator desired his daughters to be able to maintain their usual style of living, and it was under this provision that the action was sought to be maintained.</p> <p>Certain infant great grandchildren of the' testator, whose interests depended upon the death of their grandfather or grandmother, as the case might be, prior to the death of the survivor of the two life tenants, were made parties to the action. The attorney for the plaintiffs was a clerk in the office of a firm of lawyers who appeared for the adult defendants, and a member of this firm appeared for some of the infant defendants, while another clerk in their office appeared for other infant defendants. The questions litigated in the action included the construction of the will, the right to maintain the action and the time of the sale.</p> <p>Held, that the infant defendants were necessary parties to the action and were entitled to be represented by guardians ad litem who were in no way connected in business with the attorney for parties who had rights which were or might be adverse to those of the infants;</p> <p>That, as the infants had not been represented by proper guardians ad litem,, the purchaser at the partition sale was entitled to be relieved from his purchase, notwithstanding that it appeared from the terms of the judgment that, even if the infants had been represented by proper guardians ad litem, the infants could not have changed the judgment rendered or have prevented the sale from taking place.</p>

<p> Interpleader—when no sufficient hasis is shown therefor—reading in support of a motion an affidamit not served on the adverse party. </p> <p>A temporary receiver in bankruptcy having come into possession of a policy of insurance on the life of the bankrupt, the court appointing him made an order directing him to deliver the policy to one Chapuis, and providing that upon compliance with the order the receiver should be discharged from liability in respect to the order. The receiver refused to comply with the order, and Chapuis brought an action in replevin against him to recover possession of the policy. The receiver then made a motion to substitute one Parkhurst as defendant in the replevin action, alleging “that one Arthur H. Parkhurst, not a party to this action, made a demand against deponent for the same property, without collusion with this deponent; that the said Parkhurst claims the said property by virtue of an order made in the City Court of the city of New York, wherein and whereby the said Arthur H. Parkhurst was appointed receiver of the property, assets and effects of one Isidore Marty, and that the said Arthur H. Parkhurst, as deponent is informed and verily believes, has qualified as such receiver and claims the said policy of insurance as the property of the said Isidore Marty, and he claims to be entitled to the same by reason of such receivership.” No facts were stated tending to show that Parkhurst’s claim had any just or reasonable foundation.</p> <p>Held, that the order of interpleader should have been denied.</p> <p>The practice of receiving, in support of a motion, affidavits which have not been served upon the opposing party and which he has had no opportunity of answering is bad and should not be encouraged.</p>

<p>Transfer by a bankrupt—what must be shown to establish that it was fraudulent as to creditors — exceptions to a charge, when not sufficiently definite.</p> <p>A transfer made by a bankrupt to a creditor within four months of the filing of the petition in bankruptcy is not voidable under section 60 of the Bankrupt Act (30 U. S. Stat. at Large, 562) unless it appears that the bankrupt was insolvent at the time the transfer was made; that the transfer actually operated to create a preference; that the bankrupt intended to create a preference and that the creditor had reasonable grounds to believe that a preference was intended.</p> <p>The bankrupt’s intent to create a preference need not be proved by direct evidence, but may be established by facts and circumstances from which it can be found that such intent existed at the time the transfer was made.</p> <p>Where, at the close of a jury trial, the plaintiff’s counsel presents fourteen separate requests to charge, an exception taken by the plaintiff's counsel in the following form: “ I except to each of your Honor’s refusals to charge to* my several requests,” is not sufficiently definite and specific to enable an appellate court to review the trial court’s refusal to charge in accordance with the plaintiff’s requests.</p>

Appeal by the defendant, Laura B. Washburn, from a judgment of the Supreme Court in favor of the plaintiff and the defendant Brantingham, entered in the office of the clerk of the county of New York on the 2d day of April, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Negligence — death of a track repairer engaged with his head down between the ties of an elevated railroad driving bolts —proof as to the continued violation by the engineers of a rule for the track repairer's protection — when not sufficient to establish direct or constructive notice to the company — duty to station a man near by to warn him.</p> <p>In an action to recover damages resulting from the death of the plaintiff’s intestate, who was a track repairer employed by the defendant, an elevated railroad company, it appeared that at the time of the accident the deceased was engaged, with his head down between the ties, driving bolts into a guard rail, and that while in this position he was struck and killed by an elevated train. Evidence was given tending to show that a green flag had been posted for the protection of the intestate and that a rule of the defendant required engineers to slow up their trains when approaching a green flag. The case was submitted to the jury upon the theory that liability on the part of the defendant could only be predicated upon the persistent and continued violation by the engineers of the rule requiring observance of the green flag.</p> <p>The only evidence bearing upon this subject was given by a co-employee of the deceased, who was not vested with any authority in regulating or controlling the actions of other servants of the defendant. He testified as follows: “Q. When this green flag was set what would happen, so far as any of the trains-were concerned, with regard to obeying this flag? * * * A. I don’t understand. Q. Would the speed of the trains decrease any? A. They didn’t seem to mind the flag at all. Q. Didn’t mind the flag at all? A. Hot that flag. Q. Was that an every-day occurrence previous to this accident? * * * A. Yes; every day.”</p> <p>Held, that, assuming that this testimony simply established a failure on the part of the engineers operating trains on the day of the accident to observe the green flag posted for the intestate’s protection, such evidence would not warrant a finding that the defendant was negligent in failing to correct a habitual neglect of rules by its servants;</p> <p>That, assuming that the testimony of the witness applied to all cases in which green flags were displayed and showed that they were habitually disregarded, it was insufficient to establish negligence on the part of the defendant, as it did not show that direct notice of the failure to observe the rule in question had been given to any officer or representative of the company having authority in the premises or that the disregard of such rule had continued for a length of time sufficient to charge the defendant with constructive notice thereof.</p> <p>Qvare, whether the defendant was guilty of negligence in failing to station a workman near the deceased to inform him of approaching trains.</p>

<p> Evidence—testimony given on another trial used Try the party calling a witness to> discredit him as to matter called out by the adverse pa/rty—striking out competent evidence—not a ground of reversal unless the evidence was beneficial to the pa/rty complaining thereof, ■ </p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff while riding a bicycle upon a city street, in consequence of his being struck by a horse and wagon owned by the defendant, one of the questions litigated upon the trial was whether the defendant’s driver was whipping the horsé at the time of the accident. The plaintiff called the driver as a witness and examined him concerning certain details of the accident, but did not examine him as to whether or not he was whipping the horse, Upon cross-examination by the defendant, the driver testified that he did not have a whip in his hand. He was then cross-examined by the plaintiff’s counsel upon this point and, for the purpose of discrediting him upon such point and upon othet points about which the defendant had questioned him and which had not been touched upon by the plaintiff, the court permitted the plaintiff to read in evidence the testimony given by the witness on a former trial.</p> <p>Held, that the ruling was proper;</p> <p>That, as the defendant had cross-examined the witness with respect to a matter independent of the direct examination and which was part of the defendant’s-affirmative defense, it was competent for the plaintiff to cross-examine the • witness, as to the matter developed by the defendant, in the same manner as if the witness had been called by the defendant.</p> <p>The action of a trial judge in striking out, upon the motion of the party produsing it, competent evidence, lawfully in the case, does not constitute reversible error, unless it appears that the evidence is in some way beneficial to the other party and that he will be prejudiced by its exclusion.</p> <p>Van Brunt, P. J., and Ingraham, J., dissented.</p>

<p>Motion by the plaintiff, Charles F. Shirk, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the. plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1902, upon the verdict of a jury for $4,550, and also from an order entered in said clerk’s office on the 25th day of March, 1902, denying the defendant’s motion for a. new trial made upon the minutes.</p>

Appeal by the defendant, the Pennsylvania Steel Company, 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 1st day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling said defendant’s demurrer to the plaintiff’s amended complaint.

Appeal by the plaintiff, Charles Uggla, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of blew York on the 28th day of April, 1902, upon the decision of the court, rendered after a trial at the blew York Special Term, overruling the plaintiff’s demurrer to the second, third, fourth, fifth and sixth separate defenses contained in the defendant’s answer, which demurrers were interposed upon the…

Appeal by the plaintifE, Theodore P. Spitz, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of June, 1902, denying the plaintiff's motion for a bill of particulars of the counterclaim set up in the defendant’s answer.

Appeal by the defendant, Annie Donohue, 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 23d day of April, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to two separate defenses contained in said defendant’s answer.

Appeal by the defendants, Walter J. Tice and others, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 30th day of April, 1902, setting aside the direction of the '.trial court, made before the opening of the case dismissing the ■.'(Complaint, and granting the plaintiff’s motion for a new trial.

<p>Appeal by the defendant, Emil B. Meyrowitz, 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 20th day of September, 1902, upon an order made at the New York Special Term and entered in said clerk’s office on the 19th day of September, 1902, striking out the separate defense contained in the defendant’s answer as sham, and awarding judgment to the plaintiff upon the remainder of the answer, and also from said order upon which the judgment was entered.</p>

Appeal by the plaintiff, The Union National Bank of Lewisburg, Pennsylvania, 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 21st day of March, 1902, upon the dismissal of the complaint at the close of the plaintiff’s evidence on a trial at the New York Trial Term.

<p> Life insurance —action by the insured to reform, the policy and to recover its surrender value as reformed—he acts as trustee for the beneficiary—right of an assignee of the beneficiary, after the death of the insured, to be substituted as plaintiff and to serve a supplemental complaint asking for the information of the, policy and the recovery of the amount thereby secured to be paid. </p> <p>The complaint in an action brought by William Wilkinson against an insurance company alleged that, in 1891, the defendant issued an insurance policy to him, and represented that such policy provided for a fixed rate of premium, payable quarterly; that in December, 1898, the defendant sent the plaintiff a notice demanding payment of a much larger premium than he had theretofore paid; that the plaintiff had then reached the age of sixty-seven years, and that it was impossible for him to obtain insurance upon his life in any reputable insurance company, except at a greatly increased rate of premium.</p> <p>The relief demanded was that the policy of insurance should be reformed, if it should be determined that the defendant was, by its terms, entitled to demand payment of premiums at an increasing rate, or that the policy be construed to be a level rate policy, not subject to an increasing premium; that the defendant be required to accept the premium at the level rate, as paid when the policy was first issued, for the remainder of the life of the insured; that the plaintiff recover the value of the policy as reformed, and that he have such other and further relief as to the court might seem just and equitable.</p> <p>The policy in question designated Wilkinson’s three sons as the beneficiaries thereof, and, at the time the action was brought, such beneficiaries had assigned all their interest in it to Eebecca Wilkinson. After the defendant had answered and the case was ready for trial, Wilkinson died. His wife, Eebecca Wilkinson, filed with the defendant proof of the death of the insured, and subsequently assigned to one John E. Hunt all of her claim under the policy of insurance and all her right, title and interest in the cause of action then pending. Thereupon Hunt made a motion for an order reviving the action and substituting him as plaintiff in the place and stead of said Wilkinson, and also for leave to serve a supplemental complaint setting up the facts in relation to Wilkinson’s death and the assignment to him of the cause of action, and asking therein for judgment that the policy be declared to be a level rate policy according to its terms, and that the plaintiff recover judgment thereon for the sum of §10,000, which was the whole amount secured to be paid thereby in the event of Wilkinson's death.</p> <p>Held, that Wilkinson stood, in relation to his wife, as the trustee of an express trust, within the provisions of section 449 of the Code of Civil Procedure, and that, as such, the action was properly brought in his name;</p> <p>That Hunt, having succeeded to the entire claim by virtue of his assignment, was entitled to be substituted as the party plaintiff either under section 756 or section 757 of the Code of Civil Procedure;</p> <p>That Hunt should be permitted to serve the supplemental complaint;</p> <p>That the fact that such complaint demanded a reformation of the policy and also sought to recover the sum secured to be paid thereby did not render it objectionable;</p> <p>That it could not be successfully urged, because the money judgment demanded by the proposed supplemental complaint was the amount secured to be paid by the policy in the event of Wilkinson’s death, while the money judgment demanded in the original complaint was only for the surrender value of the policy, that the purpose of the proposed supplemental complaint was to set up a new and totally different cause of action from that averred in the original complaint;</p> <p>That the cause of action under both complaints remained the same and that the extent of recovery was alone modified.</p> <p>Van Brunt, P. J., dissented.</p>

<p>Appeal by Mary E. Fitzsimons, as administratrix de bonis non of Ann Cassidy, deceased, from an order of the Surrogate’s Court of New York county, entered in said Surrogate’s Court on the 7th day of July, 1902, denying the motion of said administratrix for an order withdrawing the objections of Michael McNally, individually and as administrator, etc., of John P. McNally, deceased, to the account of Mary E. Fitzsimons, as administratrix of Ann Cassidy, deceased.</p> <p>Ann Cassidy died in August, 1897, leaving property real and personal. The heirs surviving were Peter A. Cassidy, a brother, Mary E. Fitzsimons, a sister, and John P. McNally a nephew, each entitled to one-third of her estate. The last named was a lunatic who for several years before his aunt’s death was confined in an asylum. Peter A. Cassidy the brother, was appointed administrator of the estate of Ann Cassidy, deceased, and after his appointment died, and the said Mary E. Fitzsimons was appointed in his place administratrix do bonis non. After this last appointment, John P. McNally died in the asylum, leaving as his only next of kin his father, Michael McNally; and the latter with one William Harrigan were appointed administrators of the estate of John P. McNally, deceased. As such administrators they commenced proceedings in the Surrogate’s Court to compel Mary E. Fitzsimons to render an account as administratrix, which resulted in an order requiring her to file such an account, to which, when filed, objections were made by Michael McNally, as administrator and individually. Thereafter the account and objections were sent to a referee and while the matter was there pending, McNally withdrew his objections and consented that the account be settled and allowed as filed. He also executed a general release to Mary E. Fitzsimons of all claims against the estate of Ann Cassidy.</p> <p>The administratrix then made a motion before the referee, based on the release and consent, for a report approving the account, which motion was opposed by I. Newton Williams, the attorney for McNally, who was also attorney for McNally and Harrigan, as administrators, on the ground that he had a lien on the fund which McNally could not release or settle. In opposing the motion he introduced an agreement dated July 21st, 1901, upon which the alleged lien was based and which provided, so far as it is necessary to be considered upon this appeal, that he was to be paid “ as full compensation for his services, one-half of any and all property both real and personal, which the said Michael McNally inherited,” and that the latter for that purpose conveyed and assigned and set over to him, or his assigns, “ one-half of all property both real and personal, which he, the said Michael McNally, has inherited, has received or will receive as an heir at law or otherwise, in and to the said estate of Ann Cassidy and Patrick Cassidy her father, or which he is entitled to by virtue of his right of curtesy in and to any lands inherited by his wife,” and that the said Williams accepts the said employment and “ agrees to pay out of his compensation any and all claims or charges which Mr. Robert S. Pelletreau may have against the said Michael McNally.”</p> <p>The referee refused to grant the motion on the ground of want of power, and thereafter it was made before the surrogate, who denied it, and from the order thus entered this appeal is taken.</p>

Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of August, 1902, taxing the bill of expenses of Alfred M. Downes, the clerk appointed by the commissioners, at the sum of $250 per month for two months.

<p>Transfer tax — the right acquired by the legal representatives of a decedent in a Stock Exchange seat held by him is not subject thereto.</p> <p>The right to a seat in the New York Stock Exchange, which belonged to a decedent during his lifetime and which passed to his personal representatives at his death, is not subject to a transfer tax under sections 220 and 221 of the Tax Law, as such a right is not “personal property” within the meaning of that term as defined by subdivision 5 of section 2 of the Tax Law.</p> <p>All that passes to the decedent’s personal representatives in such a case is the right to a transfer of the decedent’s seat subject to the rules of the Stock Exchange, and not the capital invested in the purchase of the seat or the value thereof at the time of the decedent’s death.</p> <p>Patterson and Hatch, JJ., dissented.</p>

Appeal by the plaintiff, Alexander Harvey, 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 22d day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of April, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Street railway company in New York city — what company, as lessee, is hound to pay to the city a license fee for each car run—the lessor, not running cars, is not.</p> <p>The complaint in an action brought by the city of New York against the Sixth Avenue Railroad Company, the Houston, West Street and Pavonia Ferry Railroad Company and the Metropolitan Street Railway Company, alleged that, prior to the incorporation of the Sixth Avenue Railroad Company, a contract was entered into between the city of New York and the incorporators or assignors of that railroad company which provided that ‘' each of said passenger cars to be used on said roads shall be annually licensed by the Mayor; and there shall be paid annually for such licenses such sum as the Common Council shall hereafter determine; ” that this contract was confirmed by the charter of the railroad company, and that on December 81, 1858, the common council of the city of New York adopted an ordinance providing, “ Each and every passenger railroad car running in the City of New York below 125th street, shall pay into the city treasury the sum of fifty dollars, annually, for a license.”</p> <p>The complaint further alleged that on February 1, 1892, the Sixth Avenue Railroad Company leased its lines to the Houston, West Street and Pavonia Ferry Railroad Company, and that on December 12, 1893, the Houston, West Street and Pavonia Ferry Railroad Company was consolidated with the Metropolitan Street Railway Company, and that the latter railroad company had ever since operated the lines of the Sixth Avenue Railroad Company.</p> <p>This action was brought to recover license fees for the cars operated upon the lines of the Sixth Avenue Railroad Company from 1895 to 1899 inclusive.</p> <p>Reid, that the obligation of the Sixth Avenue Railroad Company to pay a license fee for each car used upon its road terminated when it leased its road and franchise to the Houston, West Street and' Pavonia Ferry Railroad Company;</p> <p>That when the Houston, West Street and Pavonia Ferry Railroad Company became merged in the Metropolitan Street Railway Company, the latter company assumed the former company’s liability for the payment of the license fees in question;</p> <p>That the only cause of action alleged in the complaint was a cause of action against the Metropolitan Street Railway Company for the license fees for the cars actually used by that company in the operation of the lines of the Sixth Avenue Railroad Company;</p> <p>That, consequently, the complaint was not demurrable on the ground that causes of action were improperly united therein, but that it was demurrable as to the Sixth Avenue Railroad Company and the Houston, West Street and Pavonia Ferry Railroad Company on the ground that it did not state a cause of action against those railroad companies;</p> <p>That the complaint, however, stated a cause of action as to the Metropolitan Street Railway Company and was not demurrable as to that company.</p>

<p>Street railway company in New York city — what company is not bound to pay to the city a license fee for each car run by it — its successor is not.</p> <p>•The ordinance of the city of New York, passed December 81,1858, providing that every passenger railroad car running in the city of New York below One Hundred and Twenty-fifth street shall pay into the city treasury an annual license fee of fifty dollars was not binding upon the Twenty-third Street Railway Company, which was incorporated in 1872, and which was not required, either by the terms of its charter or by any agreement with the city, to pay the license fee.</p> <p>The ordinance not having been binding upon the Twenty-third Street Railway Company, the Metropolitan Street Railway Company, which acquired the property and franchises of the Twenty-third Street Railway Company, cannot be required to pay a license fee upon the cars operated on the lines formerly operated by the Twenty-third Street Railway Company.</p> <p>Van Brunt, P. J., dissented.</p>

<p>.Street railway company in New York city — a lessee is not bound to pay to the city a license fee for each car run prior to its acceptance of the lease — effect of its taking the demised property “subject to all debts and liabilities of" the lessor.</p> <p>The complaint in an action brought by the city of New York against the Third Avenue Railroad Company and the Metropolitan Street Railway Company alleged that the grant made by the mayor, aldermen and commonalty of the city of New York to the incorporators of the Third Avenue Railroad Company, pursuant to which the railroad company was organized, provided that the incorporators of the railroad company “ shall pay, from the date of opening the said railroad, the annual license fee for each car now allowed by law and ■shall have licenses accordingly,” and that this grant was confirmed by the ■statute under which the railroad company was organized (Laws of 1854, chap. 140, § 3); that prior to the year 1894 the Third Avenue Railroad Company duly paid the annual license fees for its cars, but had neglected to do so since that time; that on April 3, 1900, the Third Avenue Railroad Company leased its roads to the Metropolitan Street Railway Company “ subject to all debts and liabilities of the parties of the first part” (the lessor); that the lease contained an agreement on the part of the lessee to “ pay, satisfy and discharge all municipal, county, state or government taxes and assessments, license fees or other charges of any description whatever which during the term hereby granted may be imposed upon the property hereby demised, or any part thereof, or upon any additions or extensions thereof.”</p> <p>The action was brought to recover license fees for the cars operated by the Third Avenue Railroad Company upon its lines during the years 1894 to 1899, inclusive.</p> <p>Meld, that the complaint did not state a cause of action against the Metropolitan Street Railway Company;</p> <p>That, as the Metropolitan Street Railway Company simply accepted a demise of the property of the Third Avenue Railroad Company, “subject to all debts And liabilities” of the Third Avenue Railroad Company, and did not agree to pay the existing debts and liabilities of that company, and as the Third Avenue Railroad Company was still an existing corporation, liable for its debts and obligations, the Metropolitan Street Railway Company was not liable for the license fees accruing prior to the execution of the lease;</p> <p>That the provision in the lease requiring the lessee to “pay, satisfy and discharge all municipal, county, state or government taxes and assessments, license fees or other charges of any description whatever which during the term hereby granted may be imposed upon the property hereby demised, or any part thereof,” rendered the lessee company liable for all license fees accruing after the execution and delivery of the lease, but did not relate to license fees which had accrued prior to the execution thereof.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of April, 1902, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 28th day of April, 1902, denying the defendant’s motion for a new trial made .upon the minutes.

<p>Appeal by the plaintiff, Nellie Garvey, from an interlocutory judgment of the Supreme Court in favor of the defendant, The* United States Fidelity and Guaranty Company, entered in the office of the clerk of the county of New York on the 6th day of June,,. 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the said defendant’s demurrer to the amended complaint.</p>

<p>Perjury—section 96 of the Penal Code is not limited to affidavits required by the laws of the State of New York—indictment charging two persons with the crime of perjury, and also that one of them counseled the acts of the other — it chargee both as principals with the commission of one offense.</p> <p>Section 96 of the Penal Code, which provides: “ A person who swears * * *■ that any * * * affidavit * * * by him subscribed is true * * * on any occasion in which an oath is required by law * * * or may lawfully be administered, and who * * * on such * * * occasion willfully and knowingly * * * deposes * * * falsely in any material matter, or states in bis * * * affidavit * * * any material matter to be true which he knows to be false, is guilty of perjury,” is not limited in its operation to affidavits and oaths required by the laws of the State of New York, but. extends to an oath or affidavit required by the laws of a sister State and authorized by the laws of such sister State to be taken in the State of New York.</p> <p>An indictment charging two persons with the crime of perjury, which first avers-the commission of the offense by both persons, and then avers that one of them was actually present, aiding, counseling, advising and procuring the said acts, oaths and willful purposes of the other, does not allege the commission of two offenses, but simply the commission of a single offense in which both the defendants were principals.</p>

<p>Appeal by the plaintiff, William W. Brauer, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 18th day of July, 1902, setting aside a verdict theretofore rendered in favor of the plaintiff and granting a new trial of the action.</p> <p>Also an appeal by the defendant, The Oceanic Steam Navigation Company, Limited, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 6th day of September, 1902, denying the defendant’s motion for a nonsuit made during the course of the trial.</p>

Appeal by the defendants, John Edwin Doane and others, as executors, etc., of John W. Doane, deceased, 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 30 th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the second defense contained in the answer.

<p> (Jobs standing in front of hotels {not at hack stands) in the city of New York must pay a license fee of twenty-fine dollars in addition to the three dollars license fee. </p> <p>Livery stable keepers, doing business in the city oí New York, who make an agreement with the proprietor of a hotel in that city to supply carriages or cabs to that hotel and who, with the written consent of such proprietor, but without the consent of the city, keep a number of cabs standing in front of the hotel awaiting passengers, must, in addition to the license fee of three dollars imposed on special hacks by sections 456 and 457 of the revised ordinances of the city of New York, pay for each of such cabs the additional fee of twenty-five dollars, imposed pursuant to sections 12 and 13 of the ordinance approved May 22, 1899, upon hacks using, with the written consent of the owner or lessee of the abutting premises, a public street as a private hack stand.</p> <p>The enactment of the ordinance of May 22,1899, was within the power of the municipal legislature.</p>

<p>Appeal by the plaintiff, John B. B. Fiske, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of October, 1902, vacating a judgment theretofore entered against the defendant in this action, upon her failure to appear or answer, and also an ex forte order directing the entry of such judgment.</p>

Appeal by the defendant, Anna Gr. Huner, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, restraining the continuance of a nuisance upon the defendant’s premises.

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of September, 1902, denying the defendants’ motion to quash a writ of certiorari theretofore issued to review an assessment for taxation and granting the relator’s motion for a reference.

<p> Fees of commissioners of estimate and assessment in the city of New York—what proof as to the number of days consumed must be furnished—charges for meetings at which nothing is done. </p> <p>Section 998 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), relative to the taxation of the costs, fees and expenses of the commissioners of estimate and assessment appointed in a condemnation proceeding instituted by the city of New York, contemplates that the commissioners shall submit proofs from which the court may be able to see that the number of days charged for by the commissioners were necessarily devoted to the proceeding.</p> <p>Affidavits made by each of the commissioners, stating, in general terms, that they had performed and discharged all of their duties as such commissioners, and had been employed a specified number of days and would be engaged two more days in making a final report, which affidavits are supplemented by an affidavit made by an employee of the corporation counsel having charge of the kooks and accounts of the proceeding, who deposes that the expenses of the proceeding, other than the charges of the commissioners, are a certain sum. and that the hill of costs of the commissioners is in all particulars correct, do not constitute such proof of the justice of the charges as the section requires.</p> <p>The commissioners appointed in such a proceeding are not entitled to charge-fees for attending meetings at which nothing is done or which are unnecessarily adjourned, even though the failure to do anything and the unnecessary adjournments are due to the action of the corporation counsel.</p>

<p>Dockage rights in New York city—specific performance of a contract by the city to pv/rchase them — defense that the party agreeing to sell had no interest—construction of a reservation in a grant by the city of New York of land and dockage rights— an exception therefrom, implies that an estate passed thereunder—exception void for uncertainty—what is an exercise of a reserved right pi'ecluding further action — effect of the city’s consent to the construction and use of a pier—proviso in a lease as to the city's action—prescriptive right — application of “ Sinking JBhind Ordinance”—power of the common council to grant—implied consent from the city.</p> <p>In 1817 Henry Rutgers owned land in the city of New York adjoining the East river for the two blocks from Rutgers street to Clinton street, extending (high-water mark being for the most part above Water street) to the northerly line of Water street. May 1,1817, the city, pursuant to the authority of chapter 86 of the Revised Laws of 1813, granted to him the land to be “ gained out of the East River” bounded northerly by the south side of Water street, easterly by the west side of Clinton street, southerly by the northerly side of South street and westerly by the east side of Rutgers slip, excepting so much as would be necessary to extend Jefferson street, which lay between Rutgers street and Clinton street, to South street. Rutgers covenanted to build “wharves or streets ” adjoining said premises and keep the same in repair, and that they should be “ public streets or highways,” and also, when so required, to fill and construct Water and South streets and to extend Clinton, Jefferson and Rutgers streets from Water to South street.</p> <p>The grantor covenanted that the grantee “shall and lawfully may, from time to time, and at all times forever hereafter fully have, enjoy, take and hold to his and their own proper use, all manner of wharfage, cranage, advantages and emoluments growing or accruing by or from that part of the said wharf</p> <p>' or street called South Street, which lies opposite to the hereby granted premises and fronting on the East River, excepting and reserving nevertheless so much of the said wharfage, cranage, advantages and emoluments as may accrue from so much of South Street as may be hereafter appropriated by the said parties of the first (part) for the purpose of forming and malting a public slip or basin after the said public slip or basin shall be formed and made."</p> <p>In 1831 a committee appointed by the common council of the city of New York to investigate the matter of dock facilities along the Bast river presented a report advocating the formation of a “basin or slip” by the construction of two piers, one at the foot of Clinton street and the other about eighty feet westerly toward Jefferson street. The resolution, recommended to carry out the report, was adopted.</p> <p>Hay 1, 1832, the executors of Rutgers conveyed to Henry W. Bool a portion of the lands abutting on South street. At that time the lots had not been filled in and the conveyance was made expressly subject to the exception or reservation and other covenants contained in the deed to Rutgers. Subsequently Bool and the other proprietors constructed, at their own expense, pursuant to a resolution of the common council, a bulkhead on the south line of South street from Rutgers street to Clinton street and filled up the water lots agreeably to the Rutgers grant.</p> <p>The westerly pier of the proposed slip was not built at the point originally contemplated, but was built at the foot of Jefferson street. In 1833 the city constructed another pier 130 feet long at the easterly side of Rutgers slip. In 1844 the “ Sinking Fund Ordinance” was adopted, vesting the making of grants of land under water in “the Commissioners of the Sinking Fund of the city of New York" and prohibiting the construction of bulkheads and piers under such grants except with the consent of the common council. In 1847 or thereabouts, a resolution was passed providing for the construction of a pier 300 feet long midway between Jefferson and Rutgers streets, which pier, known as pier 45 (old number), was subsequently built. June 19, 1848, William and Thomas Dennistoun acquired, through certain mesne conveyances, the premises previously conveyed to Bool, together with the wharfage rights. Such conveyances were made by express stipulations therein subject to the conditions of the Rutgers grant. In 1849 William and Thomas Dennistoun constructed, at their own expense, pursuant to a resolution of the common council, a pier 300 feet long in front of their premises, which pier is known as pier 47 (old number), Bast river.</p> <p>At the time this pier was constructed the title of the city to the land under the water of the Bast river only extended to a line drawn 400 feet from low-water mark. This line intersected pier 47 at about the middle. Pursuant to authority conferred by section 6 of chapter 574 of the Laws of 1871, the Commissioners of the Land Office granted to the city the land under water to an exterior line passing beyond the pier in question.</p> <p>Since 1849 the Dennistouns and their successors in interest have had possession of the pier and bulkhead and have received the wharfage therefrom, have kept it in repair and have paid taxes thereon. It does not appear whether or not the commissioners of the sinking fund took any action with reference to the construction of such pier.</p> <p>In 1871 a plan for the improvement of the Bast river water front was adopted. _ This plan was not carried out, but an amended plan was adopted in 1898 which provided for the construction opposite the premises included in the Eutgers grant of four piers over 450 feet long.</p> <p>At the time of the adoption of the amended plan Mary Bell had succeeded to the Dennistouns’ title under instruments which were not made subject to the Eutgers grant. January 4, 1900, the said Mary Bell entered into an agreement with the department of docks of the city of New York, by which she agreed to convey to the city of New York for a specified sum “good title to the several rights, titles and interests in and to the said wharfage rights, etc., appurtenant to one hundred and twenty feet (120) of bulkhead and to said Pier old Mo. 47, Bast Eiver, with the rights to the lands under water and riparian and other rights, if any, in front thereof and connected therewith not now owned by the city of New York or by the People of the State of New York.” The city subsequently refused to perform this agreement upon the ground that under the grant from the city of New York to Eutgers it was entitled to the possession of the premises for the purpose of a “public basin,” viz., the purpose contemplated by the plan of improvement.</p> <p>In a proceeding instituted by Mary Bell to compel the specific performance of the agreement of January 4, 1900,</p> <p>Held, without examining into the validity or extent of Bell’s title, that, as she was in possession of the premises and asserted title, rights and interests therein under a claim which was more than colorable, there was a sufficient consideration to support the city’s agreement and that it should be required to specifically perform such agreement;</p> <p>That it would be unreasonable to construe the exception or reservation in the Eutgers grant as giving the city the right to appropriate, for a public slip or basin, the entire bulkhead opposite the two blocks originally owned by Eutgers;</p> <p>That if the city based its claim upon an exception from the grant this would necessarily imply that some estate was granted to Eutgers, for otherwise the exception would be repugnant to the grant;</p> <p>That, construed as an exception, such exception would be void for uncertainty as it covered nothing then in existence or capable of being identified or omitted from the conveyance;</p> <p>That the proper construction of the reservation contained in the grant to Eutgers required the city to exercise its alleged rights thereunder before requiring the abutting owners to construct the wharf and piers;</p> <p>That the action of the city in 1831 in deciding to construct the two piers then contemplated was an exercise of its reserved rights and an abandonment of any right to locate a public slip or basin at that point;</p> <p>That, having consented to the construction of pier 47 and acquiesced in its use for a period of fifty years, it was not competent for the city to appropriate it for a public slip;</p> <p>That the fact that a lease executed by Bool’s executors, February 1, 1841, contained a provision for a reduction of the rent in case the city should take the bulkhead for public use was not inconsistent with the above construction of the Eutgers grant;</p> <p>That the sinking fund ordinance did not apply to that portion of pier 47 which was constructed beyond the 400-foot mark, and that the common council of the-city had the right, under chapter 86 of the Bevised Laws of 1813, to grant not only the city’s consent to the construction of this part of the pier, but the consent of the State as well;</p> <p>That, as this portion of the pier had been constructed and used under a claim of right for more than twenty years before the city obtained title to the land beyond the 400-foot line, the plaintiff had acquired a prescriptive right to-maintain this part of the pier and to access thereto over the waters of the State;</p> <p>That the pier in question, having been constructed by the abutting owner, with-, the consent of the common council, the sinking fund ordinance did not apply' to any portion thereof;</p> <p>That, if the sinking fund ordinance did apply to the pier in question, the consent of the common council should be regarded as having been given in conformity to, and in compliance with, the sinking fund ordinance, and not as a recognition, of any superior title in the city.</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the defendant, Henry Wolfsohn, 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 23d day of May, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling said defendant’s •demurrer to the complaint.

<p>Agreement by a person to leave all Ids property to one who should live with him as a daughter — specific performance thereof—action against the promisors administrators a/nd heirs—a demurrer does not lie for a misjoinder of parties defendant — multifariousness.</p> <p>Helen Potts Hall brought an action against the administrators of the estate of George F. Gilman, deceased, his heirs at law and all others interested in his estate, to compel the specific performance of a contract alleged to have been made between the plaintiff and George F. Gilman, by which Gilman agreed that if the plaintiff “should continue to live with him and care for him as a daughter until the time of his death she should have and be entitled to all his property, both real and personal, as fully and to the same extent as if she were his sole lawful issue.”</p> <p>The complaint alleged that Gilman was a childless widower who was under no moral or legal obligations to his collateral relatives and lived on unfriendly terms with them; that several years prior to his death the decedent “having conceived a' strong personal regard for this plaintiff, and being desirous that she should become a member of his household, adopted this plaintiff as his daughter, and did make her a member of his household and thereafter until the time of his death, plaintiff resided with him as his daughter, receiving from him the care, support and affection of a father, managing his household and rendering to him the same obedience and affection as if she had been his natural daughter; ” that the agreement in suit was made a few months prior to the decedent’s death, “ in consideration of said services and affection and as an inducement for her to render the same as long as he lived and for other good and valuable considerations;” that the plaintiff duly performed the contract on her part and that the services rendered by her pursuant thereto were of great value to the decedent, but were “of such a character that they cannot be readily admeasured and are not capable of exact ascertainment or valuation.”</p> <p>Held, that a demurrer interposed to the complaint by a defendant who was a daughter of a deceased sister of the decedent should be overruled;</p> <p>That the agreement, as stated in the complaint, was not void for uncertainty or on the ground that it was against public policy;</p> <p>That it could not be said, as matter of law, that specific performance of such agreement should not be enforced;</p> <p>That the complaint stated but a single cause of action and was, therefore, not demurrable on the ground that a cause of action against the decedent's administrators was united with a cause of action'against his heirs;</p> <p>That it was proper to unite all of the parties interested in the estate in order to avoid a multiplicity of suits and procure an adjudication that would finally determine the question;</p> <p>That the question whether or not the complaint stated a cause of action as to all of the other defendants did not concern the demurring defendant.</p> <p>A demurrer will not lie for a misjoinder of parties defendant, but it will lie for a defect of parties defendant. The defect of parties defendant for which a demurrer will lie means a non-joinder and not a misjoinder of parties.</p> <p>A demurrer on the ground of multifariousness is not authorized by the Code of Civil Procedure.</p>

Appeal by the defendant, Minnie N. Little, 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 '9th day of September, 1902, upon the decision of the court, rendered ■after a trial at the New York Special Term, overruling the said ■defendant’s demurrer to the amended complaint.

<p>Appeal by the defendant, Thomas J. Dunn, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 20th day of November, 1902, placing the cause upon the short cause calendar.</p>

Appeal by the defendant, the International Navigation Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of June, 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 20th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Domenico Amedeo and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of December, 1901, upon the report of a referee.

Appeal by Gertrude B. Miller from an order of the Surrogate’s Court of the county of Dutchess, entered in said Surrogate’s Court on the 27th day of March, 1902, fixing a transfer tax upon 2,000 shares of stock mentioned in the 2d clause of the will of the decedent.

Appeal by the plaintiff, H. Van Rensselaer Kennedy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 24th day of April, 1902, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 25th day of February, 1902, upon the decision of the court awarding the plaintiff $225 damages.

<p>Appeal by the petitioner, Denis Coleman, from an order of the Supreme Court, made at the Queens County Special Term and -entered in the office of the clerk of the county of Queens on the 1st ■day of July, 1902, denying the petitioner’s motion for leave to issue execution upon a judgment recovered by him against the Mutual Brewing Company.</p> <p>In an action brought to enforce the statutory remedies for the mismanagement of a corporation, the Special Term directed the eancellation of a judgment theretofore entered against the corporation. Pending an appeal by the judgment creditor, on which a stay was granted preventing the clerk from actually canceling the judgment, the corporation was dissolved in an action brought by the People of the State of Few York, and a receiver was appointed, who, by direction of the court, sold the real estate of the corporation, subject to certain specified liens which did not include the can■celed judgment. After the receiver’s sale the Appellate Division handed down a decision sustaining, at a reduced amount, the judgment ordered to be canceled by the Special Term.</p> <p>The judgment creditor, therefore, made a motion for leave to issue an execution against the corporation and the receiver for the Amount of his judgment as reduced.</p>

Appeal by the relator, David Havron, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 18th day of Hovember, 1901, dismissing an alternative writ of mandamus theretofore issued in the proceeding.

<p>Appeal by the defendants, James L. Taylor and others, the proprietors of certain newspapers published in Westchester county, 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 17th day of May, 1902, enjoining the board of supervisors of Westchester county, the clerk of said board and the treasurer of said county from paying certain bills for the publication, of legal notices in such newspapers.</p>

Appeal by the plaintiff, James E. Corcoran, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Dutchess on the 31st day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Dutchess County Trial Term.

<p>A savings bank deposit made “ in trust" for another — an implication arises thereirom, in the absence of proof to the contrary, of an intention to create a trust — it is not rebutted by the fact that the money is subsequently withdrawn.</p> <p>In October, 1899, a woman opened a savings bank account in her own name in trust for her husband, and deposited therein sums which, with interest, aggregated §1,397.56. In May, 1900, she drew out all of such sums and gave §650 thereof to her daughter. She died in July, 1900, without disclosing to her husband the existence of the account or making any declaration in respect thereto.</p> <p>Held, that, in the absence of testimony showing a contrary intention, the opening of the account in trust furnished sufficient proof that the woman intended to create a trust in favor of her husband;</p> <p>That the fact that the woman had drawn all the money out of the account before her death did not rebut the inference to be drawn from the opening of the account.</p>

Appeal by the relator, William Murray, 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 20th day of May, 1902, denying the relator’s motion for a peremptory writ of mandamus.

Appeal by Otto Kelsey, as receiver of the Manhattan Fire Insurance Company of the City of New York, from so much of an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Albany on the 25th day of October, 1902, as denies said receiver’s motion to confirm the report of a referee appointed in June, 1902, to take and state the receiver’s accounts, etc., ascertaining and fixing his liabilities for legal expenses,…

Appeal by the plaintiff, Hanorah Kelly, 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 30th day of April, 1902, granting the defendant’s motion to require the plaintiff to furnish security for costs.

Appeal by the defendant, Johanna Carpenter, as administratrix, etc., of Charles E. Carpenter, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 20th day of August, 1902, upon the decision of the court, rendered after a trial before the court without a jury at the Schenectady Trial Term, adjudging a certain bond and mortgage to be a part of the estate of Lydia J. Robinson, deceased.

Appeal by the defendant, Eugene L. Ashley, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Washington on the 18th day of May, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 18th day of May, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the claimants, E. Brown Baker and another, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 4th day of March, 1902, “ both upon questions of law and of fact, and for an insufficiency of the judgment, upon the grounds that the said judgment, insofar as it limits claimants’ recovery to $5,100, the amount of the deposit, with such interest, to be computed by the Comptroller, as it has earned the State, and •does not allow…

Appeal by the defendant, Nettie M. White, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the loth day of March, 1902, upon the decision of the court rendered after a trial before the court without a jury.

Appeal by the defendant, The Autophone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 16th day of December, 1901, upon the verdict of a jury for $850, and also from an order entered in said clerk’s office on the 16th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Town of Sidney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 28th day of October, 1901, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office on the 28th day of April, 1902, denying the defendant’s motion for a new trial made upon a case containing exceptions.</p> <p>Plaintiff recovered a verdict of $200 damages against the defendant for an injury sustained upon the 6th day of March, 1900, by reason of a defect in one of the defendant’s highways. From the judgment entered upon this verdict and from an order denying defendant’s motion for a new trial defendant has appealed.</p>

<p>Negligence—injury because of a horse being frightened by a log by the roadside — testimony that the log was removed to prevent other horses being frightened is incompetent.</p> <p>Where, on the trial oí an action to charge a town with negligence in permitting a log of wood, which the plaintiff alleged frightened her horse, to remain on a highway running through a wooded tract in such town, one of the contested questions is as to whether or not the log of wood was “ a frightful object and was an object well calculated to alarm and frighten horses that might be driven along said highway,” it is error to allow a witness (not the commissioner of highways of the town) to testify that he and his father took the log out of the road the day after the accident in order to prevent other horses from becoming frightened at it, as the question whether the log was calculated to frighten horses was a question for the jury and was not a proper subject for exper testimony.</p>

Appeal by the defendant-, James 0. Fargo, as President of the Merchants Dispatch Transportation Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 1st day of Hay, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of Hay, 1899, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, John Lewis Putnam and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the. county of Saratoga on the 30th day of January, 1902, upon the decision of the court, rendered after a trial at the Saratoga Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, the St. Regis Paper Company, from an interlocutory judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the clerk of the county of Franklin on the 14th day of July, 1902, upon an order made at the Saratoga Special Term sustaining the plaintiff’s demurrer to the third separate defense contained in the defendant’s answer, and directing judgment in favor of the plaintiff.

Appeal by Philip Purcell, as commissioner of highways of the town of Kinderhook, Columbia county, H. Y., from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Columbia on the 10th day ■of May, 1902, compelling him to unite with the commissioners of highways of the town of Chatham in the repairing or rebuilding of ■a bridge over a stream dividing the two towns.

Appeal by the defendant, George S. Emerson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 5th day of February, 1902, upon the verdict of a jury for $1,000, 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.

Appeal by the plaintiff, William Klos, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Columbia on the 15th day of Hay, 1901, upon the dismissal of the complaint by direction of the court after a, trial at the Columbia Trial Term. The defendant, a domestic corporation, is engaged in mining iron ore in the county of Columbia.

Appeal by the plaintiff, Janet Franchot Paige, 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 Schenectady on the 17th day of July, 1902, vacating a temporary injunction restraining the defendant from operating its electric street railway on Washington avenue in the city of Schenectady in front of the premises owned by the plaintiff.

Appeal by the defendants, Catherine A. Stephens and others,, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Delaware on the 20th day of February, 1902, upon the report of a referee foreclosing a mortgage and directing a sale of the mortgaged premises. In April, 1883, Marquis A. Lasher purchased a farm in Delaware county and gave a $5,500 purchase-money mortgage thereon.

Appeal by the defendant, Myron Carter, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 22d day of August, 1902, upon the decision of the court, rendered' after a trial at the Albany Special Term, foreclosing a mortgage and directing a sale of the mortgaged premises. The Republic Savings and Loan Association, a domestic corporation, was organized in 1890.

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

Appeal by the plaintiff, Edward Shortsleeve, as administrator, etc., of Mary Ellen Shortsleeve, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 11th day of November, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 10th day of October, 1901, denying the plaintiff’s motion for a new trial made upon the…

<p>Contract to erect a school building in the city of Little Falls —its board of education is not a corporation — the city is liable on contracts made by the board—when a failure to obey a statutory provision as to contracting a city debt is not available to the city as a defense to such a contract—nor the absence of the formal consent of the architect — what subletting of work to be done under a city contract does not violate chapter 444 of the Laws of 1897—waiver of an architect’s certificate— the reopening of a case is discretionary.</p> <p>The board of education of the city of Little Falls and of the union free school district of the city of Little Falls, created by section 42, of the charter of that city (Laws of -1895, chap. 565; as-amd.), whose'powers and. duties-are defined partly by the charter and partly by the Consolidated School Law, is not a distinct corporate entity as is a board of education created by the Consolidated School Law, but is simply one of the agencies of the city, and a contract made by such board of education within the scope of its agency and within the provisions of the charter is binding upon the city.</p> <p>In an action brought to foreclose a mechanic’s lien for materials furnished under a contract for the erection of a school building made by the board of education of that city, the fact that the proposition to raise the sum (which was in excess of $5,000) necessary for the erection of the school building was not submitted to the electors of the city, as required by section 80 of its charter, is not available to the city where it appears that such defense was not pleaded in its answer and that the money applicable to the discharge of the obligation incurred by the contract has been raised and is in the city treasury.</p> <p>The city cannot escape liability upon the contract because a portion of the work was sublet by the contractor without the formal consent of the architect in violation of a clause contained in the contract where it appears that before the contract was- made the contractor announced in the presence of the architect and the board of education his intention qf subletting, a portion .of the contract work, and that no objection was made thereto either by the architect or the board, and that the sub-contractor had, with the knowledge of the architect and the board of education, performed his part of the work for over a year without objection and received partial payments therefor.</p> <p>Chapter 444 of the Laws of 1897, providing that if any contractor to whom a municipal contract is let shall, without the previous written consent of the department or official awarding the same, assign, transfer, convey, sublet or otherwise dispose of his contract or his right, title or interest therein, or his power to execute such contract to any other person, company or corporation, the municipal corporation shall be relieved and discharged from any and all liability and obligation growing out of said contract to said contractor, and to the person, company or corporation to whom he shall assign, transfer, convey, sublet or otherwise dispose of the same, is designed to prevent a party obtaining a municipal contract from assigning the whole or the substantial part of it to some one else and thus relieve himself from responsibility in respect thereto. It was not designed to prevent a practical mason who obtains a contract to erect a school building in a city from subletting the carpenter work to a practical carpenter.</p> <p>"Where a contract for the construction of a building provides that payments shall be made thereunder upon the certificate of the architect, and, during the performance of the work, the owner declares the contract forfeited and takes possession of the building for the purpose of completing the same, the production of the architect’s certificate is not necessary to enable a person who furnished material used upon the work to maintain an action against the owner to foreclose his lien.</p> <p>A motion, made upon a reference after the evidence had been closed, to allow the plaintiff’s case to be reopened and permit him to offer additional evidence in chief, is addressed to the discretion of the referee.</p>

Appeal by the plaintiff, John O. Leggett, as executor, etc., of Minerva P. Stevens, deceased, and by the defendant Helen S. Eldridge, from a judgment of the Supreme Court in favor of the defendant Addison S. Stevens, both individually and as administrator with the will annexed of William P. Stevens, deceased, entered in the office of the clerk of the county of Allegany on the 5th day of September, 1902, upon the decision of the court, rendered after a trial at the Allegany…

Appeal by the defendant, Matthias J. Kelley, from an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 10th day of May, 1902, denying said defendant’s motion to set aside the verdict of a jury in favor of the plaintiff and for a new trial made upon the minutes.

Appeal by the defendant, William C. A. Quirin, 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 20th day of -June, 1902, upon the verdict of a jury for $2,750, and also, as stated in the notice of appeal, from an order denying the defendant’s motion for a new trial made upon the minutes. The order denying the new trial does not appear in the record.