Volume 78 — New York Appellate Division Reports

Adams, P. J., and McLennan, J., opposed the reduction of the verdict.

Appeal by the defendants, Isaac Bulifant and another, from an order of the Supreme Court, made at the Oneida Special Term and entered in the ofiice of the clerk of the county of Oneida on the 3d day of November, 1902, modifying a preliminary injunction theretofore granted in the action “ so as to restrain the defendants from selling or delivering 2,588 cases of corn as therein provided,” and continuing such injunction as thus modified.

Appeal by the defendants, Ira Pierce and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 19tli day of November, 1901, upon the decision of the court, rendered after a trial at the Erie Special Term, overruling the defendants’ demurrer to the complaint, and also from an order made at the Erie Special Term and entered in said clerk’s office on the 16th day of November, 1901,…

Appeal by the defendants, Frances Mangold and another, from an interlocutory judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 25th day of November, 1901, upon the decision of the court.

Appeal by the plaintiff, Bridget Alden, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Cattaraugus on the 14th day of March, 1893, upon the verdict of a jury rendered by direction of the court.

Appeal by the plaintiff, Margaret McGuire, from an order of the Supreme Court, made at the Cayuga Special Term and entered in the office of the clerk of the county of Seneca on the 18th day of July, 1902, directing that John A. Murphy, as administrator, etc., of Mary Murphy, deceased, be substituted in the place of the Auburn Savings Bank as party defendant in the action, and that the said bank hold the funds in suit to await the determination of the court as to the…

Appeal by the defendant, Daniel E. Moore, as mayor of the city of Geneva, 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 21st day of July, 1902, directing the issuance of a peremptory writ of mandamus requiring the defendant to appoint an examining board of plumbers of that city as required by law.

Appeal by the defendant, William 0. Dunham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Allegany on the 25th day of February, 1902, upon the report of a referee.

<p>Statute of Frauds — a defense thereof appearing on the face of the complaint must he raised, by demurrer — an oral contract made in Marrch to extend one year from the succeeding April first is within the statute.</p> <p>The objection that a contract sued upon is void because it is not evidenced by a written agreement must, when it appears upon the face of the complaint, be raised by demurrer and cannot be raised by answer.</p> <p>A contract made in March, which is not to take effect until April first following, and is to continue from that date for one year, is within the Statute of Frauds.</p>

Appeal by the plaintiff, the Rochester and Eastern Rapid Railway Company, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 12th day of July, 1902, vacating a temporary injunction pendente lite theretofore granted in the action in so far as it in effect restrained the defendant from constructing and operating a street surface railroad upon Canal or Mill street, in the village of Fairport,…

Motion by the plaintiff, William H. Bell, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon a nonsuit directed by the court after a trial at the Niagara Trial Term.

<p>Pleading — causes of action for a violation of the Agricultural Law required to be separately stated.</p> <p>The complaint in an action brought against George Sheriff & Son and the Albion Cider and Vinegar Company to recover penalties for alleged violations of the Agricultural Law (Chap. 338, Laws of 1893, as amd.), and for an injunction restraining the defendants from further violations of such statute, alleged, in-the 1st paragraph of the 3d subdivision thereof, that between certain dates the Albion Cider and Vinegar Company manufactured for sale, kept for sale, offered for sale and sold to the defendant, George Sheriff & Son, one barrel or cask of vinegar in separate casks or barrels which were falsely labeled “ Cider Vinegar ” contrary to the form of the statute.</p> <p>In the next paragraph of the 2d subdivision of the complaint it was alleged that “ George Sheriff & Son purchased said cask or barrel of vinegar for resale in their business, kept the same for sale, offered the same for sale and sold and delivered the same to their customers as and for cider vinegar.”</p> <p>Held, that each of such paragraphs constituted a separate cause of action and that it was the duty of the plaintiff to separately state and number the same.</p>

<p> Killing a dog seen worrying sheep after he has been followed to adjoining premises. </p> <p>A person who seeks to justify the killing of a dog under section 123 of chapter 686 of the Laws of 1892, which provides, ‘ ‘ Any person may kill any dog which he shall see wrongfully chasing, worrying or wounding any sheep,” is not obliged to show that the dog was killed while in the act of chasing sheep; the protection of the statute extends to a case where a man, who had seen a dog chasing sheep in his pasture, followed the dog upon the adjoining premises and there shot him.</p>

<p>Appeal by the plaintiff, John J. Driscoll, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the. clerk of the county of New York on the 10th day of September, 1902, upon the decision of the court, rendered after a trial before the court without a jury at the New York Trial Term, dismissing the complaint.</p>

<p>Will— clame giving a residuary estate to “ two brothers, Samuel and Richard, who or whose representatives or assigns a/re to he entitled to possession and enjoyment thereof,” construed.</p> <p>Clifford A. Hand, a lawyer of large experience, left a will, by the 1st clause of which he devised to his two brothers, Samuel and Richard L., certain real estate located in Essex county, N. Y., and certain real estate located in Addison county, Vt., which latter property he had acquired from his father or through conveyances from his brothers. By the 2d clause he provided with respect to such real property as follows: “ In case of the decease of either of my two brothers before me, I devise the share of my said real estate so intended for him to his children who survive me.”</p> <p>By the 7tli clause he provided: “ All the residue of my estate and property of whatsoever nature and wheresoever situate, of or to which I may die seized, possessed or entitled, I give, devise and bequeath the same to the executors of this, my will, upon trust to receive the income thereof and to apply the net income realized therefrom to the use of my wife Maria L. Hand during her natural life, and upon her decease to pay over and transfer a part or parts of the principal, not exceeding in aggregate ten thousand dollars, to such of the then living lineal descendants of my wife, or of my father, as by her last will and testament my wife may direct and appoint — and subject to the life use therein of my wife and the exercise by her of the said power of appointment, I give, devise and bequeath the beneficial right and title in and to my said residuary estate to my two brothers, Samuel and Richard, who or whose representatives or assigns are to be entitled to possession and enjoyment thereof upon and after the decease of my wife.”</p> <p>Richard L. Hand survived the testator, but Samuel Hand died prior to the testator, leaving surviving him two children.</p> <p>Held, that the 7th clause of the -will did not create a joint tenancy in the testator’s residuary estate under which the share devised and bequeathed to Samuel Hand would pass to Richard L. Hand by survivorship;</p> <p>That the testator did not die intestate as to the share of the residuary estate devised and bequeathed to Samuel Hand, but that such property passed to the children of Samuel Hand in equal portions;</p> <p>That the word “assigns,” used in the last portion of the 7th clause of the will, related to the transferees of the testator’s brothers if they should survive the testator, and that the word “representatives,” used in that portion of such clause, referred to those who would stand in the place of a deceased brother of the testator, and that by using such word the testator intended to make a substituted gift to the children of his brother or brothers, if one, or both, of them died before him.</p>

<p>Dismissal on the opening— action by a creditor to reach a fund conveyed by one since deceased in fraud of creditors — when a court of equity will assume jurisdiction oft a fund in the State of New York as against foreign executors — such foreign executors are proper parties—effect of an appearance by one of them — right to a jury trial.</p> <p>The practice of dismissing a complaint upon the opening of the plaintiff’s counsel, while legitimate, should not he encouraged.</p> <p>From the pleadings in an action and the opening of the plaintiff’s counsel upon the trial, it appeared that the plaintiff was a creditor of James McHenry, a resident of London, England; that in 1871 McHenry and Thomas William Kennard, each of whom owned a large amount of real and personal property in the States of New York, New Jersey, Pennsylvania and Ohio, conveyed such property to trustees by a deed which recited that the trust property should be represented by 400 certificates of $5,000 each which were to be regarded as personal property; that 150 of such certificates were issued to McHenry; that in 1874 McHenry, being then insolvent, transferred 100 of the ■certificates to Benjamin Moran of London, and that in 1878, at McHenry’s request, Moran assigned the certificates to Leonard J. Woodman, also of London, and that the latter died in 1895; that the original trustees were both dead, but that their successors in the trust had in their possession in the State of New York personal property applicable to the McHenry shares, amounting to at least $50,000.</p> <p>The complaint alleged that the assignment of the certificates to Moran and to Woodman was in trust for the benefit of McHenry’s wife and children with a power of appointment to the wife; that a few days before the death of McHenry’s wife, which occurred in 1883, she executed an instrument exercising the power of appointment; that McHenry died insolvent in May, 1891, leaving a last will and testament in which the defendants McDermott and Boyd were nominated as executors; that such executors entered upon the execution of their duties in England, but never took out ancillary letters in the State of New York, although they were requested by the plaintiff to do so; that in 1893 McHenry’s executors entered into an agreement in which Mrs. McHenry’s appointees joined, for the sale of the certificates to the defendant Henry Bischoffsheim; that the Court of Chancery in England approved the sale.</p> <p>The action was brought for the benefit of all the creditors of McHenry to reach the property in the hands of the trustees and have it applied pro rata to the payment of such creditors on the ground that the transfer of the trust property originally made by McHenry for the benefit of his wife and her appointees was fraudulent and void, and that all the subsequent transfers of the property were affected by such fraud and that the defendants were making an effort to remove the trust property from the jurisdiction of and without administration in the courts of the State of New York and in disregard of the rights of the creditors residing in this State.</p> <p>Held, that it was improper for the court to dismiss the complaint upon the pleadings and the opening of the plaintiff’s counsel;</p> <p>That, inasmuch as the trust estate in the hands of the trustees consisted, in part at least, of personal property, the plaintiff was entitled, under section 7 of the Personal Property Law (Laws of 1897, chap. 417), to maintain the action to set aside the fraudulent transfers;</p> <p>That, under the peculiar circumstances of the case, a court of equity would assume jurisdiction of the trust fund in the State of New York for the benefit of the domestic creditors and would impress upon such fund a lien or trust for their benefit;</p> <p>That, as it was necessary for the plaintiff to establish the existence of an indebtedness against McHenry, the latter’s foreign executors were necessary parties to the action and that a court of equity would under the circumstances entertain the action against them;</p> <p>That a general appearance by one of McHenry’s executors was sufficient, under the provisions of section 1817 of the Code of Civil Procedure, to bind both of them;</p> <p>That, if McHenry’s executors desired a jury trial upon the question of the existence of an indebtedness on the part of McHenry to the plaintiff, the court had power, under section 970 of the Code of Civil Procedure, to order a jury trial of that question.</p>

Cross-appeals by the plaintiff, Enos N. Taft, as assignee in bankruptcy of George Biker, and by the defendant, William McCarty Little, individually and as executor, etc., of Augusta McCarty Little, ■ deceased, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 31st day of January, 1902, upon the report of a referee.

Ingraham, J., dissented. Appeal by the plaintiff, Frederick W. Clifford, 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 July, 1900, upon the verdict of a jury for six cents damages, and also from an order entered in said clerk’s office on the 18th day of June, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by The City of New York from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of July, 1902, as taxed the costs, charges and expenses of William Clancy and others, commissioners of estimate and assessment appointed in the above-entitled proceeding.

Appeal by the defendant, William G. Park, 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 20th day of June, 1902, upon the decision of the court rendered after a trial at the New York Special Term overruling the defendant’s demurrer to the complaint.

Van Brunt, P. J., and McLaughlin, J., dissented from the last proposition.

<p>Appeal, by permission, by the tenant, George 0. Irvin, from an order of the Appellate Term of the Supreme Court, entered in the office, of the clerk of the county of New York on the 9th day of May, 1902, reversing a final order of the Municipal Court of the city of New York, entered upon the verdict of a jury in favor of said tenant and undertenant.</p> <p>This proceeding was begun in the Municipal Court to dispossess a tenant from rooms in the office building 140 Nassau street and tried before a jury. The petition avers that the tenant entered into an agreement with the landlord to rent four rooms on the seventh floor of the building at a rental of $1,000 a year from May 1, 1901, payable monthly in advance, and went into possession and still occupies the same; that on January first there was due the landlord for rent the sum of $500 for which the tenant defaulted in payment and without permission holds over and continues in the possession of the premises, wherefore the landlord prays for a final order removing said tenant. It was conceded upon the trial that the rent under the lease from August first to February first, amounting to $500, was unpaid, but the tenant contended that during the time, owing to repairs and alterations made in the building in the entrance, hallways, stairs, elevators, floors and lavatories, he was, as to them, put out of possession and thus evicted from a material part of the premises; and, therefore, the rent during such period was not payable and lienee the dispossess proceeding could not be maintained.</p> <p>A great deal of testimony was given upon the extent of the repairs which were made and the time during which the inconvenience resulting therefrom continued ; and it appears that the elevators were altered and the service lessened, one being removed entirely from use ; that the floors of the hall were removed and new tiling laid, the stairs removed and temporary ones used until the new stairs were completed, the entire front entrance removed and a new entrance built, the water closets on the tenant’s floor taken out and also the wash basins therein and the closets not replaced till January although a part of the time a ladies’ closet was there and there was a closet on the floor below which, it was testified, was used by workmen and was in an unsanitary condition. During this time the halls were littered with barrels and dirt, and the entrance was by temporary and almost unprotected steps and visitors were put to great inconvenience in getting in and out of the building, and some of the repairs extended down to the latter part of Jannuary. It was testified that the alterations were contemplated and begun prior to the end of the old lease, April 30, 1901, and that the tenant urged that he be granted a reduction of the rent, and a reduction was made for six months of one-half, the amount to apply to the three months preceding and following the making of the new lease, May 1, 1901, and it was then stated by the landlord that he expected to complete the alterations by August 1, 1901, to which time the rent was reduced. There is some dispute as to just what the oral agreement thus made was, the landlord contending that the reduction was made in consideration of the alterations contemplated, whenever they should be completed, it being said that it was expected that the work would all be done by August first. The tenant contends that the agreement was that the rent should be reduced to one-half up to and including August first, upon the condition that the alterations were all completed at that time, and that as they were not so completed he is entitled to a further reduction. In support of this contention it is pointed out that the one who made the agreement between the landlord and tenant testified that he told the latter he expected the alterations to be completed by August first, and it “ was in consideration of that that three months’ rent was allowed ” from the making of the lease.</p> <p>The Municipal Court submitted the issues to the jury and a verdict was returned in favor of the tenant, and from the judgment so entered the landlord appealed to the Appellate Term. That court held that the facts did not warrant the jury in finding that there was an actual eviction of the tenant by the landlord from any substantial portion of the premises; that the water closets and basins were not an integral part of the rooms leased, the deprivation of the wash basin being temporary and the closets on the floor below being available to the tenant, and that the inconvenience of the alterations was not such as amounted to eviction, and the tenant had been informed when the lease was made of the proposed alterations and been allowed a deduction therefor. In a concurring opinion it was pointed out that the lease itself provides that the lessor shall not be responsible for any “ latent defect or change of condition” nor other damage to the premises nor for overflow of water, etc. The judgment of the Municipal Court entered on the jury’s verdict was, therefore, reversed and a new trial ordered, and from the order so entered the tenant brings this appeal.</p>

<p>Appeal by the defendant, The Firemen’s Insurance Company of Baltimore, 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 28th day of May, 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 separate defense contained in the amended answer.</p>

<p>Laug-hlin and Hatch, JJ., dissented.</p> <p>Appeal by the defendant, the Siegel-Oooper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yew York on the 26th day of April, 1902, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 10th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, John James Herring Poillon, and by the co-respondent, Hester B. Poillon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 25th day of June, 1902, as resettled by an order entered in said clerk’s office on the 30th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, granting the plaintiff a decree of absolute divorce.</p>

Appeal by the defendants, John H. Shipway and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 18th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, setting aside an award made by an arbitrator.

O’Brien and Laughlin, JJ., dissented. Appeal by the plaintiff, Pierce Ryan, 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 5th day of August, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining a demurrer to the amended complaint. The facts and the nature of the action are stated in the dissenting opinion of Laughlin, J.

<p> Temporary designation to serve on the Appellate Division—it does not prevent the decision thereafter of a case theretofore tried. </p> <p>A justice of the Supreme Court, who is temporarily designated to serve on the Appellate Division before he has decided a case tried before him at Special Term, may decide such case after the temporary designation is revoked.</p>

Appeal by the defendants, Edgar Ketchum and another, from a final 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 June, 1900, upon the decision of the court, rendered after a trial at the New York Special Term, foreclosing a mortgage and directing a sale of the mortgaged premises.

<p>Appeal by the defendant, William F. Grell, 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 7th day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Charles L. Hyde and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of July, 1902, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>The Goodson Type Casting and Setting Machine Company was a corporation organized under the laws of the State of Minnesota. The complaint in the action avers that the plaintiff entered into a contract with the defendants, whereby the plaintiff was to procure options upon a controlling interest in the shares of said company, and the parties were to form a pool of said stock. The plaintiff procured options on 10,100 shares of the stock, a controlling interest therein. In procuring the stock and attending to the business the plaintiff was to render his services and the defendants were to advance the money. After the options -were obtained, the stock was purchased at a given sum per share. It was then agreed by and between the parties that a new corporation should be formed under the laws of the State of New Jersey, to be known as the Goodson Graphotype Company, and subsequently such corporation was formed with a capital stock of $5,000,000, of which $2,500,000 was preferred stock and $2,500,000 common. The parties had several agreements and understandings during the progress of the negotiations, which are set out in detail in the complaint, and finally, under date of March 27, 1899, an agreement was entered into in the form of a letter written by the defendant Hyde to the plaintiff. This letter is as follows:</p> <p>“New York, March 27th, 1899.</p> <p>“ Charles L. Spier, Esq.,</p> <p>New York City, H. Y.:</p> <p>“ Dear Sir.— Relating to the Goodson Type Casting & Setting Machine Company, on behalf of myself and associates, I beg to say that if the patents are satisfactory and we decide to go on with the business, it is our intention to form a new company under the laws of the State of New Jersey to acquire the control of the present company and we should like to have your assistance. The new company may be called the Goodson Graphotype Company, and it is our intention to exchange 10,100 shares of its stock for an equal number of shares of the Goodson Type Casting & Setting Machine Company.</p> <p>“ We expect to place this 10,100 shares of stock of the Graphotvpe Company in portions from time to time in a pool to be charged to the pool at the rate of $22.75 per share. We hope to have this stock underwritten or sold and we shall reserve a part of the money so realized, to be advanced by us, on such terms as we may determine, to the company to be used as working capital, also to defray such expenses as may be incurred from time to time in selling the stock. If you join us the profits to accrue to you in connection with this 10,100 shares of stock, if pooled as above outlined, would, therefore, be estimated as the net sum realized upon the sale of said stock, after deducting and repaying to the persons depositing stock in the pool the above-mentioned $22.75 per share, together with a sum for expenses, and after deducting further whatever sum of money those depositing stock in the pool may desire to reserve to advance for the use of the company as working capital.</p> <p>“ All questions relating to modifications or changes in the plans herein outlined or as to the times and terms of the sale of the pooled stock and as to how much of the proceeds shall be reserved for expenses, etc., are to be determined by Mr. Garrison and myself.</p> <p>“ As consideration for your services in connection with this matter and with the understanding that you are to devote your time exclusively hereafter to the promotion of the new company and its business and welfare until all the stock in the pool is sold, we would be willing to set aside for your benefit as full compensation for your services 15 per cent of whatever net profits estimated on the above basis may be found to have been realized from the sale of the pooled stock after the entire 10,100 shares have been pooled'and sold. It is understood, however, that this 15 per cent interest relates only and applies solely to the 10,100 shares of stock of the new company and to the net profits, if any, to be derived from the sale thereof on the basis as above stated.</p> <p>“ Yours truly,</p> <p>“(Signed) CHAS. L. HYDE.”</p> <p>This proposition was accepted by the plaintiff. The complaint further avers that by virtue of the terms of this agreement plaintiff became entitled to a considerable sum of money and of capital stock by virtue of the formation of the Goodson Graphotype Company and the sale of its stock, and demands judgment that a receiver be appointed of so much of the capital stock of the said company and the net profits of the pool so far as the same remains undisposed of in the hands of the defendants ; that they be enjoined and restrained from selling the same and that an accounting be had between the plaintiff and defendants of the amount of money to which he i.s entitled to receive and the shares of stock, and that the same may be transferred to him, and for such other and further relief as may be just and equitable.</p> <p>The defendants answered, denying the making of the agreement mentioned in the complaint. Admit the writing of the letter hereinbefore set forth; deny that the plaintiff devoted his time to the formation of the company; deny that he is entitled to receive the stock which he has claimed, and further aver that the agreement of March 27, 1899, as set forth in the said letter, was abrogated and superseded by an agreement embodied in a letter of May eighth which passed between the same parties, of which the following is a copy of the body of the letter, to wit: “ In connection with my letter to you of March 27th, in relation to the formation of the Goodson Graphotype Company, I beg to say that as agreed between us to-day you will be entitled to receive 375 shares of preferred and 375 shares of common stock of the Goodson Graphotype Company in the event of the formation of that company, which stock shall be in full for your services and all demands under my letter to you of March 27th, 1899. This of course depends upon the formation of the Goodson Graphotype Company and the carrying out of our plans of reorganization as mentioned to you to-day.</p> <p>“ Yours truly,</p> <p>“ (Signed) CHAS. L. HYDE.</p> <p>“ The above is perfectly satisfactory to me, and is hereby accepted and confirmed.</p> <p>“ (Signed) CHAS. L. SPIER.”</p> <p>For a second and further answer, the "defendants further aver that by the acceptance of the terms of said last-mentioned letter, the plaintiff became entitled to receive 375 shares of the preferred and 375 shares of the common stock of the Goodson Graphotype Company in full of all demands under the agreement of March 27,1899, and that such agreement of May eighth is now in force and has never been abrogated.</p> <p>After trial was had the court found, among other things, that the contract of March 27, 1899, established the rights and liabilities of the respective parties, and created a partnership in the pool of stock therein referred to ; that such contract was not modified, released or discharged by the transactions of May 8, 1899, and that the latter constituted no defense to the plaintiff’s claims; that such letter and acceptance signed by the parties did not constitute a contract, but was a statement merely of the amount due to the plaintiff, and an admission by him that such an amount is due; that the representations which induced the plaintiff to sign that contract were untrue and were relied upon by the plaintiff, who was ignorant of the actual facts, in consequence of which the letter of May eighth was not binding upon him. The court further held that the last-named contract of May eighth was ineffectual for want of consideration. Interlocutory judgment was directed for an accounting before a referee ; that a receiver be appointed of the stock, etc., and the profits therefrom, and of the moneys which the defendants have received, and that the defendants deliver the stock and pay over the moneys to such receiver, with costs.</p> <p>From the interlocutory judgment entered upon this decision this appeal is taken.</p>

<p>Appeal by the defendant, The American Bridge 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 1st day of March, 1902, upon the verdict of a jury for $9,500, and also from an order entered in said clerk’s office on the 22d day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Van Brunt, P. J., and Patterson, J., dissented. Appeal by the defendant, Julius Jungmann, 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 May, 1902, upon the decision of the court rendered after a trial at the New York Special Term in an action to foreclose a mortgage directing the. entry of a deficiency judgment against the defendant, Julius Jungmann.

Appeal by the plaintiff, James Toohey, 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 January, 1902, upon the dismissal of the complaint by direction of the court, at the close of the plaintiff’s case, upon a trial at the New York Trial Term.

Cross-appeals by the petitioner, Eva G. Bolles, and by Edward H. Murphy from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of November, 1902, directing the said Edward H. Murphy to pay to the said Eva G. Bolles the sum of seventy dollars.

Van Brunt, P. J., and O’Brien, J., dissented. Appeal by Thomas Sturgis, fire commissioner 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 29th day of August, 1902, directing that a peremptory writ of mandamus issue requiring him forthwith to reinstate the petitioner in the office of chief of the department and to the command of the uniformed force of the…

Laughlin, J., dissented. Appeal by the relator, William J. Lahey, 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 17th day of November, 1902, denying the relator’s application for a peremptory writ of mandamus compelling his restoration to the office of detective sergeant.

Appeal by the relator, Patrick Fay, 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 17th day of November, 1902, denying his application for a peremptory writ of mandamus compelling the police commissioner of the city of New York to reinstate the relator as a detective sergeant and to-retire him on a pension of $1,000 per annum.

<p>Action for an accounting by trustees — a complaint therefor is not demurrable on the ground that there is a defect of parties, where such persons will be necessary parties only in case the trustees make certain charges against the fund.</p> <p>By the 33d clause of the will of O. F. Theodor Steinway, deceased, the testator gave and bequeathed 4,000 shares of stock to his four executors and trustees, with directions to hold such stock for the benefit of certain persons named respectively in paragraphs A, B, C and D of such 33d clause, one-fourth thereof for the persons named in each paragraph, and directed the trustees to pay to such beneficiaries named in each paragraph, in equal proportions, an annual sum representing an income of five per cent on 1,000 shares of the stock.</p> <p>One of the beneficiaries named in paragraph O brought an action for the construction of the will, which resulted in an adjudication that each of the four paragraphs created a valid and distinct trust. Thereafter the trustees, who had not paid over the income to the beneficiaries during the pendency of the action, rendered an account to the plaintiff therein, in which they credited him with the amount of the accumulated income and two per cent interest thereon and charged him with a proportionate part of the costs of the litigation.</p> <p>The plaintiff, claiming that the trustees had received more than two per cent on the income and that he was not chargeable with the costs of the litigation, and, if chargeable with such costs, that the amount thereof was excessive, brought an action to obtain an accounting by the trustees under paragraph O. He made parties thereto the three surviving executors and trustees, the other beneficiaries under paragraph 0, the other living beneficiaries under the 33d clause of the will and the heirs and next of kin of the deceased beneficiaries under the 33d clause. He did not make parties thereto the legal representatives of the deceased executor and trustee or of the deceased beneficiaries, and it did not appear from the complaint whether any personal representatives of such persons had been appointed.</p> <p>Held, that the complaint was not demurrable, because of the omission of the plaintiff to join the legal representatives of the deceased trustee and the deceased beneficiaries;</p> <p>That the plaintiff would not be obliged to show, as a part of his affirmative case, that the trustees were not entitled to charge him with the expense of any part of the litigation, and that, so far as the other question in the case was concerned, the only necessary parties thereto were the plaintiff’s fellow-beneficiaries under paragraph C and the surviving executors and trustees;</p> <p>That, if the surviving executors and trustees wished to litigate the question whether they were entitled to charge the plaintiff with any part of the costs of the litigation, it would, doubtless, be proper to bring in all parties interested in the determination of that question, even those interested under other paragraphs of the 33d clause of the will, but that the necessity for making such persons parties was not presented by a demurrer to the complaint.</p>

O’Brien and McLaughlin, JJ., dissented. Appeal by the defendant, Henry S. Hendricks, by Grosvenor Nicholas, his guardian ad litem, from so much of a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 18th day of July, 1902, upon the decision of the court rendered after a trial at the New York Special Term as adjudges : “ I. That upon the death of the said Clifford B.…

Van Brunt, P. J., and Ingraham, J., dissented. Appeal by the plaintiff, Joseph H, Everett, 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 12th day of November, 1902, directing that the cause be placed upon the Trial Term calendar in its regular order.

<p>Will — a residuary clause held not to cover by the last paragraph legacies given by prior paragraphs which had lapsed.</p> <p>The residuary clause of a will provided: “ Seventh. All the rest, residue and remainder of my estate, real and personal, or of whatsoever the same may consist or wheresoever the same may be situate, which at the time of my death I may have, hold or be entitled to, I give, devise and bequeath to my executors hereinafter named, to have and to hold the same in trust for the uses and purposes following: To sell and dispose of the same and apply the proceeds aa follows:</p> <p>‘‘First. To pay the one-fifth part thereof to my sister, Sarah Ann Jarvis.</p> <p>“Second. To pay the one-fifth part thereof to my sister, Eliza Jane Feed.</p> <p>“ Third. To pay the one-fifth part thereof to my sister, Mary A. Simmons.</p> <p>“Fourth. To pay the one-fifth part thereof to my brother, Oliver J. Woolley.</p> <p>“ Fifth. To pay the one-tenth part thereof to my friend, Caroline S. Dean.</p> <p>“ Sixth. To pay to Mary Black, wife of John H. Black, the sum of Two hun. dred dollars.</p> <p>“Seventh. To pay to George H. Black, son of said John H. Black, the sum of Two hundred dollars.</p> <p>“ Eighth. To pay to Mary A. Black, daughter of John H. Black, the sum of Two hundred dollars.</p> <p>“Ninth. To pay to Henry C. W. Black, a son of said John H. Black, when he arrives at full age, the sum of Two hundred dollars.</p> <p>“ Tenth. To divide all the rest, residue and remainder of said proceeds among the children of my brother Oliver J. Woolley, share and share alike, when they respectively arrive at the age of twenty-one years.”</p> <p>Held, that the 10th subdivision of the residuary clause only included that portion of the residuary estate not mentioned in the first nine subdivisions of that clause, and that, in the event of the death of any of the beneficiaries specified in such first nine subdivisions, the legacies bequeathed to such deceased beneficiaries would not pass under the 10th subdivision, but that there would be intestacy as to such legacies, and they would pass to the testator’s next of kin.</p>

Appeal by the plaintiff, William Euclid Young, 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 2d day of November, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Patterson and Hatch, JJ., dissented.</p> <p>Certiorari issued out of the Supreme Court and attested on the 3d day of February, 1902, directed to Bird S. Coler, formerly comptroller of the city of New York, and Edward hi. Grout, comptroller of the city of New York, commanding them to certify and return to the office of the clerk of the county of New York all and singular the proceedings of the said Bird S. Coler, formerly comptroller of the city of New York, in dismissing the relator from the office of collector of assessments and arrears.</p>

Laughlin, J., dissented. Appeal by the defendant, the Rural Publishing Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of New York on the 5th day of November, 1902, striking out portions of the defendant’s answer as irrelevant.

Appeal by the defendant, Edward G. Glennon, from a judgment of the Court of General Sessions of the Peace in and for the city and county of ¡New York in favor of the plaintiff, entered on the 27th day of December, 1901, convicting the defendant, a police officer of the city of ¡New York, of the crime of willful neglect of duty.

<p> Annuity—when payable from the income of a trust fund and, not assignable —proof that an assignment was made to secure a loan and was not absolute. </p> <p>A testator, by the 4th clause of his will, provided as follows: “ I do give and bequeath unto Charles Alexander Roux * * * an annuity of one thousand two hundred dollars from, my death, and I do direct my executors or executor, trustees or trustee, to pay the same to him during his life in equal quarterly payments of three hundred dollars each.” By the 5th clause of the will he provided: “ All the rest, residue and remainder of my estate, real, personal and mixed, subject as above, I do give, devise and bequeath unto my executors or executor hereinafter named, or such one of them as shall assume that office, in trust, to receive the rents, issues and profits thereof, and to supply the same in equal shares ” to two persons named, with remainder over. The testator’s property consisted largely of real estate, and the personal estate was not sufficient to pay the debts and prior legacies. The annuity was not made a specific charge upon the testator’s real- property.</p> <p>Held, that it was the duty of the executors and trustees, in the execution of the trust, to pay the annuity to Roux out of the income of the trust estate and then to distribute the balance of the income between the two other persons designated in the 5th clause;</p> <p>'That under the statute Roux had no power to assign any of the installments of the annuity.</p> <p>What evidence is sufficient to sustain a finding that a transfer by Roux to a third person of installments of his annuity was intended as collateral security for the payment of the loan and not as a bill of sale thereof, considered.</p>

Appeal by the relator, Elizabeth S. Lord, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of June, 1902, dismissing a writ of certiorari to review an assessment upon the personal property of the relator for the year 1901.

<p>Consent by an abutting owner to the construction of an elevated railroad — what is merely an indication of a willingness to sign one—when a bona fide purchaser takes a title free therefrom,—effect of a consent duly given.</p> <p>Upon the trial of an action brought to restrain the maintenance and operation of the elevated railroad in front of the plaintiff’s premises upon Forty-second street, in the city of New York, it appeared that in 1875 the elevated railroad company presented to the owners of the property abutting upon that street the following blank consent: “ We, the undersigned, owners of land bounded on. Forty-second St. (south side), between Lexington & Fourth avenues, hereby respectively consent to the construction and operation of an Elevated Railway over, through and along said street,” and that in the column headed “ signatures ” was the following statement: “ I am in favour of an elevated road over the middle of the street, but not on the walk,” which was signed by the plaintiff’s grantor. The railroad company, having failed to obtain the consents of the majority of the property owners to the construction of the road, applied to the court for the appointment of commissioners to determine whether the road should be built. It stated in its petition that the plaintiff's grantor had either not consented to the construction of the road or that no request had been made to him for such consent. It further appeared that when the plaintiff acquired title to the property the railroad had not been constructed; that the alleged consent of her grantor was not recorded, and that the plaintiff had no notice, so far as was disclosed, of the existence of such consent.</p> <p>Held, that it was error to dismiss the plaintiff’s complaint;</p> <p>That the statement signed by the plaintiff’s grantor was not an absolute consent to the construction of the road, but was merely an indication of his willingness to consent to a restricted right to build the road, if his consent to such restricted right was sought;</p> <p>That, upon the recording of the deed to. the plaintiff, before the railroad was in possession of any part of the street, the plaintiff took the property free from any consent or incumbrance imposed upon the property by her grantor.</p> <p>The effect of a consent, when duly given, considered.</p>

Laughlin, J., dissented. Appeal by the Protestant Episcopal Church Missionary Society for Seamen in the City and Port of blew York from an order of the Surrogate’s Court of blew York county, entered in said Surrogate’s Court on the 20th day of May, 1902, as amended by an order entered in said court on the 3d day of July, 1902, assessing á transfer tax upon a legacy bequeathed by Eliza Ann Frail, deceased, to the appellant.

Ingraham and Hatch, JJ., dissented. Appeal by the plaintiff, James A. Sandies, an infant, by John Sandies, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of January, 1902, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case upon a trial at the New York Trial Term.

Appeal by the defendants, Thomas L. Feitner and others, commissioners of taxes and assessments of the city of New York, and composing the board of taxes and assessments of said city, 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 12th day of November, 1902, vacating an assessment levied against the relator for the purposes of taxation for the year 1900.

Appeal by the defendant, St. Vincent’s Hospital of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of March, 1902, upon the verdict of a jury for $19,420, and also from an order entered in said clerk’s office on the 9th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Ingraham and Laughmn, JJ., dissented on other grounds. Appeal by the plaintiff, Eleanor McEvoy, infant, by her guardian ad litem, William E. McEvoy, 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 19th day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of J une, 1902, denying the plaintiff’s motion for a new trial made upon the…

Appeal by the defendants, Peter T. Barlow and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office, of the clerk of the county of .New York on the 7th day of August, 1902, upon the decision of the-court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer to the amended complaint.

Ingraham, J., dissented. Appeal by the defendants, the New York Electric Vehicle Transportation Company 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 14th day of March, 1902, upon the verdict of a jury for $1,500, and also from orders entered in said clerk’s office respectively on the 9th day of April, 1902, and on the 10th day of April, 1902, denying said defendants’ motions…

Appeal by the defendants, Charles H. Knox and others, composing and constituting the Municipal Civil Service- Commission 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 29th day of November, 1901, directing that a peremptory writ of mandamus issue compelling the appellants to accept certain examination papers of the relator and to place him upon the eligible…

Appeal by The City of New York, the successor to the Mayor, Aldermen and Commonalty of the City of New York, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of May, 1901, denying a motion to confirm the report of the commissioners of estimate and assessment, as returns the report of said commissioners for the purpose of having included therein awards for damages…

Appeal by the defendant, The United States Trust Company of New York, individually and as trustee, from a judgment of the Supreme Court in favor of the plaintiff and the defendant Estella J. Jordan Johnstone, entered in the office of the clerk of the county of New York on the 20th day of December, 1901, upon the decision of the court rendered after a trial at the New York Special Term.

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 29th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Oivil service — suspension of incumbents of positions in New York city for economic reasons — notice to the civil service commissioners and to the incumbents.</p> <p>Where the head oí a department in the municipal government of the city of New York, pursuant to section 1543 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), abolishes, in good faith and for economic reasons, a number of positions in his office and suspends the incumbents of such positions without pay, he is not obliged to give the persons affected notice of his intention to abolish their positions, and, inasmuch as his action operates as a suspension and not as a removal of such persons, the statutory provision requiring a statement of the grounds of removal to be filed with the civil service commission is inapplicable.</p> <p>In such a case it is the better practice for the head of the department to send a notice to the municipal civil service commission and to the persons suspended to the effect that they have been suspended without pay, in accordance with the provisions of section 1543 of the charter, and to definitely state the reason for such suspension, and also to make a corresponding entry on the records of the department.</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 1st day of March, 1902, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 10th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Edison Electric Light Company, 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, 1902, granting the plaintiff’s motion to restore the case to its position on the Trial Term calendar.

<p> Negligence—a charge that, notwithstanding the plaintiff’s contributory negligence, the defendant was liable if it could by reasonable care "have avoided the consequences of such contributory negligence,” when improper. </p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff, an infant two and a half years of age, who, while being led across a street in the city of New York by his thirteen-year-old sister, was run over by one of the defendant’s horse cars, there was evidence tending to show that when the accident occurred the driver of the car had his head averted toward the side of the street and was engaged in conversation with a person on the front platform of the car; that he made no effort to stop the car and was apparently not aware of the presence of any person on or near the track until the accident happened.</p> <p>The plaintiff’s sister testified that when she and her brother started to cross the street the car was about twenty-five feet distant; that as they approached the car the plaintiff bent down as if to pick up a penny which he had dropped: that she attempted to pull him across the track, but that he was struck and dragged from her hand; that when she stepped on the track the horses were about two, three or four feet distant from her, and that she had proceeded about two feet past the horses when the child was dragged from her hand. Upon the whole case a clear issue of contributory negligence was presented for the determination of the jury. The defendant’s counsel requested the court to charge that if the plaintiff’s sister attempted to lead him across the defendant’s railroad track at a time when the car was approaching in full sight and was so near as to make it dangerous for them to proceed, and that the plaintiff's sister rushed across the track two, three or four feet in front of the horses’ heads, “leaving her baby brother to his fate,” then the sister was guilty of contributory negligence and the jury should render a verdict in favor of the defendant. The court, instead of charging the request so made, modified it by the addition of the following words: “ Unless you believe that the defendant’s driver could, by the exercise of reasonable care and prudence, have avoided the consequences of such contributory negligence.”</p> <p>Held, that the modification of the request was erroneous as the principle embodied in such modification did not apply to the case at bar, but only to cases in which there is established, apart from the original act or omission constituting negligence, some new circumstance or new relation which is the proximate cause of the injury.</p>

Appeal by the plaintiffs, Eli P. Miller and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of December, 1902, striking the case from the Special Term calendar and directing that the issues be tried by a jury.

<p>Action to set aside a conveyance alleged to be in fraud of creditors — the burden of establishing the gramtoffs insolvency rests on the plaintiff—proof that the conveyance was volunta/ry is insufficient.</p> <p>In an action brought by a judgment creditor to set aside a conveyance of real property made by the judgment debtor to his wife, on the ground that the judgment debtor was insolvent at the time he executed the conveyance and that such conveyance was made with intent to hinder, delay and defraud his creditors, the burden of proving the judgment debtor’s insolvency at the time he executed the conveyance is upon the plaintiff whether he was a creditor at the time the conveyance was made or became such at a time subsequent thereto; the simple fact that the conveyance was voluntary is not sufficient to sustain the action.</p>

<p>Will—transfer tase on legacies given under a power of appointment as well as on gifts of the individual property of a testatrix — it is in each case payable out of the residuary estate under a clause directing such payment “ upon any of the legacies hereinbefore made.”</p> <p>A testator bequeathed a fund of $500,000 to trustees in trust to pay the income thereof to his daughter during her life, and to pay over the principal as his daughter might, by her will, direct.</p> <p>The 1st clause of the will of the testator’s daughter provided, “ I give and bequeath the trust fund of five hundred thousand dollars * * * as follows, to wit,” and then proceeded to distribute the entire principal fund among certain charitable institutions. By the subsequent clauses of her will she made many specific gifts out of her individual funds, using, with respect to each gift, the phrase “ I give and bequeath ” used in the 1st clause. The last clause of the will provided as follows: “I direct and authorize my executors hereinafter named to pay out of my residuary estate any and all transfer or inheritance taxes that may be imposed or become due upon any of the legacies hereinbefore made, whether such taxes be State or Federal.”</p> <p>Held, that it was not the intention of the testator’s daughter to make any distinction, concerning the payment of the transfer tax, between the gifts which . she made pursuant to the power of appointment contained in her father’s will and those which she made out of her individual property.</p>

Appeal by Pincus Ronginsky 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 September, 1902, adjudging the said Pincus Ronginsky guilty of contempt of court.

O’Brien and Hatch, JJ., dissented. Appeal by the plaintiff, Mary 0. Ward, as administratiix, etc., of Martin Joseph Ward, deceased, 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 25th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Patterson and O’Brien, JJ., dissented. Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of March, 1902, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 13th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Van Brunt, P. J., and McLaughlin, J., dissented. 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 12th 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 5th day of May, 1902,-denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The City of Few York 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 6th day of June, 1902, upon the verdict of a jury for $1,600, and also from an order entered in said clerk’s office on the 4th day of June, 1902, denying the defendants’ motion for a new trial made •upon the minutes.

Van Brunt, P. J., and Ingraham, J., dissented. 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 3d day of March, 1902, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 11th day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Written record of a city board required by law — how far conclusive — police commissioners of New York city—return to a writ of certiorari, after the expiration of their term, of office, invalidating their dismissal of a patrolman on grounds not appearing in their record.</p> <p>Records of a board or body which are required by law to be kept in writing are conclusive as long as they stand unamended.</p> <p>The police commissioners of the police department of the city of New York should not, after they have gone out of office, be permitted to show that, in dismissing a patrolman from the force after a trial upon charges, they considered his record upon the question of his guilt, which would invalidate their proceedings, when that fact is not disclosed by their official proceedings, recorded pursuant to the mandate of the statute.</p>

<p>Appeal by the plaintiff, Marcus Kronfeld, as trustee in bankruptcy of Abraham Hammel, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of November, 1902, which order was resettled by an order entered in said clerk’s office on the 2d day of December, 1902, denying the plaintiff’s motion to vacate and set aside an order theretofore granted in the action requiring the plaintiff to file security for costs.</p>

<p>Ingraham, J., dissented.</p> <p>Appeal by the plaintiff, Annette Moran, 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 29th day of April, 1902, as amended by an order entered in said clerk’s office on the 7th day of May, 1902, upon a nonsuit granted by the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 7th day of May, 1902, denying the plaintiff’s motion to direct the entry of a general verdict in her favor upon the special verdict rendered by the jury, and granting the defendant’s motion to nonsuit the plaintiff.</p>

Ckoss-akpeals by the plaintiffs, Cecelia. L. Slater and another, as executors, etc., of John Slater, deceased, and by the defendant, James Slater, individually and as executor, etc., of John Slater, deceased, from an interlocutory judgment of the Supreme Court, 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.

<p>Labor Law — the eight-hour provision does not apply to the uniformed, members of the New York fire department.</p> <p>Section 3 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1900, chap. 298), which provides that “eight hours shall constitute a legal day’s work for all classes of employees in this State, except those engaged in farm and domestic service, unless otherwise provided by law,” is limited by section 2 of that act, which defines an employee as “a mechanic, workingman or laborer, who works for another for hire.”</p> <p>The word “ contract,” as used in section 3 of the Labor Law, indicates that such section relates to cases where a contract is made with a State or municipal corporation, and under it mechanics, workingmen or laborers are employed by the contractor or any sub-contractors, and not to persons who hold offices or positions in the public service.</p> <p>The section does not apply to uniformed members of the fire department of the city of New York, who are appointed after a competitive civil service examination and who receive annual salaries and not wages.</p>

<p>Funeral expenses — preference in payment from the decedent’s estate — liability of an administrator therefor — distribution of the decedent’s estate to creditor's thereof before the passage of chapter 293 of the Laws of 1901.</p> <p>Chapter 293 of the Laws of 1901, which took effect September 1, 1901, and added to section 2729 of the Code of Civil Procedure, subdivision 3, requiring every executor to pay out of the first moneys received the reasonable funeral expenses of the decedent, and authorizing the surrogate, if such funeral expenses are not paid within sixty days after the granting of letters testamentary or of administration, to require the executor or administrator to pay such claim, does not apply to a case where an administrator, prior to the time the amendatory act took effect, expended, as he was justified in doing under the then existing laws, all of the moneys of the decedent’s estate except the sum necessary for the payment of the expenses of administration, in the payment of the personal bills of his intestate to the exclusion of the funeral expenses.</p> <p>Prior to the time when the amendatory act took effect the liability of an administrator for the funeral expenses of his intestate was a personal and not a representative liability.</p>

<p>• Appeal by the defendant, The City of Mount Vernon, from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 16th day of October, 1902, denying the defendant’s motion to vacate a judgment theretofore rendered in the action in favor of the plaintiff.</p>

<p>Appeal by the petitioner, James Cusack, 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 30th day of October, 1902, denying the petitioner’s application in the first instance for a peremptory, and thereafter, pending the hearing on such application, for an alternative, writ of mandamus.</p>

Appeal by the petitioner, William J. O’Leary, 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 Flings on the 30tli day of October, 1902, denying the petitioner’s application for an alternative writ of mandamus.

<p>Negligence— injury to a passenger standing on the running board and holding on by the stanchions of an open street car, thrown off by a sudden jerh — questions for the jury.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, which was alleged to have been caused by the negligence of the defendant, an electric street railroad company, evidence that the intestate boarded one of the defendant’s open cars, which was very much crowded, and took a position on the running board with his back to the body of the car and his hands on the stanchions on each side of him, and that, while in such position and coincident with a sudden jerk of the car, which was sufficiently violent to throw standing passengers off their footing and against the seats, he was thrown from the car and received injuries which resulted in his death, is sufficient to require the submission to the jury of the question as to the negligence of the respective parties.</p>

Appeal by -the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, bearing date the 28th day of January, 1902, and entered in the office of the clerk of the county of Kings, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 7th day of March, 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 Kings on the 16th day of December, 1901, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 12th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lawrence Brothers, Incorporated, from a judgment of the City Court of Yonkers, in favor of the plaintiffs, entered in the office of the clerk of said court on the 31st day of January, 1902, upon the decision of the court rendered after a trial before the court without a jury at a Trial Term of said court.

Appeal by the defendant, Edmund S. Ashworth, 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, substituting the Stanley Hod Elevator Company as defendant in place of the defendant Edmund S. Ashworth, and directing that the summons theretofore served upon Edmund S. Ashworth stand as personal service of the summons upon the Stanley Hod Elevator Company.

Appeal by the defendant, Edward C. Beirne, from an interlocutory judgment of the County Court of Orange county in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 7th day of April, 1902, upon the decision of the court, rendered after a trial at a Special Term of said court, overruling a demurrer to the amended and supplemental complaint, interposed upon the ground that such complaint did not state facts sufficient to constitute a…

Appeal by Jerome B. Johnson, sheriff of Nassau 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 Queens on the 19th day of August, 1902, directing that an attachment for contempt issue against said sheriff unless he return an execution theretofore delivered to him “ either satisfied or nulla l>ona ” within ten days after the service of such order upon him.

<p>Appeal by The City of New York from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 23d day of September, 1902, denying a motion for a retaxation of costs.</p>

Appeal by the defendants, Abraham Abraham and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1902, vacating an order entered in said clerk’s office on the Jth day of December, 1900, dismissing the complaint in the above-entitled action for a failure to prosecute, and also vacating the judgment entered upon such order.

<p>Appeal by the plaintiff, Hannah Davis, by John Orear, as committee of the person arid property of said Hannah Davis, an incompetent person, 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 28tli day of June, 1902, modifying a decree of divorce rendered in the action on the 6th day of January, 1897, by reducing the amount of alimony therein directed to be paid from ten dollars a week to six dollars a week.for a period of three years.</p>

Appeal by the defendant, The Board of Education of the City of New York, from an order of the Supreme Court, made at the Kings County Special Term bearing date the 17th day of May, 1902, and entered in the office of the clerk of the county of Kings, granting a peremptory writ of mandamus commanding the defendant to reinstate the relator in the position of teacher of the fourth grammar grade in Public School No. 90 of the borough of Brooklyn, city of New York.

<p>Appeal by the defendant, Clarence M. Palmer, 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 19th day of March, 1902, upon the verdict of a jury for $8,500, and also from an order entered in said clerk’s office on the 31st day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, George E. Ward, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 21st day of March, 1902, upon the decision of the court, rendered after a trial at the Dutchess County Special Term, dismissing the complaint upon the merits.</p>

<p>Negligence—fall of a fieman into a faaloi'y elevator shaft — when the owner of the factoi’y is not liable.</p> <p>The proprietor of a factory in a city is not liable to a fireman employed by the city who, while fighting a fire in the factory in the early morning while it is still dark, steps into an elevator well which is not guarded on the side from which he approaches it, in the absence of any statute or city ordinance requiring elevator wells in factories to be guarded, particularly where it does not appear that the fireman entered the building by any entrance which the proprietor could reasonably have anticipated would be used, even in case of fire, or that the dangerous condition was not produced by the action of the fireman’s companions in removing the guard rail and moving the elevator.</p>

Appeal by the defendant, The City of Mount Vernon, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 6th day of March, 1902, upon the report of a referee.

Appeal by the petitioner, William Brookfield, as commissioner of public works of the city of New York, from that part of an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 21st day of December, 1901, which sets aside the report of the commissioners appointed in the proceeding in so far as such report relates to parcel No. 61 and twelve acres of parcel No. 62.

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

<p> Action f 'or personal injury —proof of dementia is not admissible under a complaint alleging that the plaintiff was “greatly shocked.” </p> <p>Under a complaint in an action to recover damages for personal injuries which alleges that the plaintiff “ was thrown down and was severely injured in her person. That her skull was fractured and she was severely wounded, bruised and contused in various parts of her person, received severe internal injuries, and was greatly shocked, and sustained injuries, as she verily believes, of a permanent character, and of an exceedingly painful nature, and that by reason of said injuries she has been, as she verily believes, forever incapacitated from attending to her duties and earning any wages and supporting herself as she was in the habit of doing at the time she received such injuries,” evidence that the plaintiff, as a result of the accident, was suffering from a form of' insanity known as dementia, is not admissible.</p>

Appeal by the defendant, Katharine Slee, 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 30th day of November, 1901, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Marguerite Svenson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 29th day of March, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Robert Avery, 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 Kings on the 10th day of September, 1902, granting a motion made by the defendant, William B. Kirk, to change the place of trial of the action from the county of Kings to the county of Onondaga.

Appeal by the defendant, Charles W. Hall, from an order of the Supreme Court, made at the Rings County Special Term, hearing date the 19th day of June, 1902, and entered in the office of the clerk of the county of Kings, denying the defendant’s motion to change the place of trial of the action from the county of Kings to the county of New York.

Appeal by the defendant, Supreme Council, American Legion of Honor, 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 25th day of March, 1902, upon the verdict of a jury rendered by direction of the court.

<p> Lease of a hotel—liability of the landlord for injury to one using a defective exterior platform connected therewith, where he covenants in the lease to repair it. </p> <p>A lease of a hotel requiring the landlord to keep the “ exterior ” and the tenant the “ interior ” of the hotel buildings in repair, imposes upon the landlord the duty of keeping in repair a partly covered wooden platform or sidewalk running from the outer wall of the hotel building to a railroad platform, constructed prior to the lease of the hotel, and used for the purpose of furnishing access to and egress from the hotel, and also as a refreshment pavilion or veranda in connection therewith. 0</p> <p>A person intending to become a guest of the hotel, who sustains injuries because of the failure of the landlord to keep the platform in repair, may recover damages for such injuries from the landlord on the ground of negligence.</p> <p>Such an action is not based upon the breach of the covenant to repair contained in the lease, but upon the landlord’s failure to perform the legal obligation which rested upon him prior to the execution of the lease, of maintaining the platform (which, to the extent of the making of repairs thereon, might be considered as not demised) in a reasonably safe condition, which legal obligation was kept in force by the covenant contained in the lease.</p>

<p>Goodrich, P. J., dissented from the last proposition.</p> <p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of January, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 7th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The New York and New Jersey Telephone Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of February, 1902, upon the verdict of a jury for $2,890, and also from an order entered in said clerk’s office on the 11th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Susanna Stadermann, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 10th day of June, 1902, upon the report of a referee.

<p>Allowance to counsel assigned to defend an alleged murderer — §500 may be allowed for compensation in addition to peisonal and incidental expenses — a survey and diagram of the place of the murder is a personal and incidental expense.</p> <p>Under section 308 of the Code of Criminal Procedure, relative to the allowance which the court may make to an attorney assigned to defend a person accused of murder for his compensation and for his personal and incidental expenses', the court may allow the attorney the sum of §500 for his compensation and a further sum for his personal and incidental expenses.</p> <p>An item of §10, incurred by the attorney in procuring for his personal use in preparation of the case for trial an accurate survey and diagram of the basement of the house in which the homicide was committed, is a personal and incidental expense of the attorney within the meaning of section 308.</p>

Appeal by the defendant, Samuel Davis, from a judgment of the Court of Special Sessions of the city of New York, entered on the 23d day of July, 1902, convicting the defendant of violating section 79 of the Sanitary Code of the health department of the city of New York.

Appeal by the defendant, Johanna Di Lorenzo, from so much of 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 30th day of July, 1902, as denies the defendant’s motion for alimony pendente Ute. The action was brought to annul a marriage between the parties on the ground of fraud.

Appeal by the defendants, Josephine M. Robinson and others, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 22d day of August, 1902, and entered in the office of the clerk of the county of Nassau, denying-the defendant’s motion for an order declaring that the plaintiff is not entitled to costs.

<p>Secret order — motion by a member to compel its secretary to communicate to Mm, its unwritten work and, password, denied—the oi'der is a necessary party thereto.</p> <p>A court will not entertain a motion by a member of a division of a secret fraternal order to compel the secretary and treasurer of the division to communicate to him its unwritten work and password, particularly where neither the order nor the division is a party to the proceeding and where the moving party made no attempt to secure relief within the order.</p>

Appeal by the defendant, Gerhard Coliman, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 24th day of February, 1902, upon the decision of the court rendered after a trial at the Orange Special Term. The action was commenced December 19, 1899, and the complaint alleges that the defendants obstructed the right of way-referred to therein May 4, 1897.

<p>Appeal by the defendant, Sophie J. Treviranus, 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 Rockland on the 17th day of October, 1902, denying the defendant’s motion to cancel the judgment on record in the above-entitled action.</p>

Hirschberg, J., dissented. Appeal by Henry Doscher 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 2d day of December, 1902, conferring the powers of permanent receivers upon the temporary receivers appointed in the proceeding, and granting leave to said receivers to sell the corporate property of the Malcom Brewing Company.

<p>Appeal by the defendants, Calantha B. Canfield and others, from an interlocutory judgment .of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rock-land on the 23d day of June, 1902, upon the decision of the court rendered after a trial at the Rockland Special Term in an action brought to obtain a judicial construction of the will of Julia F. Mansfield, deceased.</p>

<p>Partition suit — conditions imposed on allowing a judgment creditor, whose judgment was recovered since the action began and was proved before the referee therein, to become a party thereto.</p> <p>A person who, after an action to partition real property had been begun and the lis pendens had been filed, had recovered a judgment against one of the defendants in such action, proved his lien before the referee appointed in the partition suit to ascertain liens, who allowed it. After the interlocutory judgment had been rendered, he made a motion to be made a party to the action, alleging, among other things, that certain unlawful payments were to he made out of the proceeds of the sale which would use up the fund applicable to the payment of his judgment, and that he desired to be heard on the form of the decree and the disposition of the proceeds of the sale. The court granted the motion unless all parties would consent to a rehearing of the final order. The other parties refused to consent to such rehearing and took an appeal from the order.</p> <p>Held, that, under the circumstances, the lienor should not be given a free hand to litigate those questions which had been or could have been properly heard and determined on the reference, but that he was simply entitled to have a day in court upon the settlement of the final order;</p> <p>That, even if the Special Term had, in terms, made the lienor a party, it could have limited his rights, lest he should be afforded a second day in court as to matters which were or could have been determined on the hearing before the referee or the subsequent proceedings thereupon.</p>

<p>Will - di8posil~om of interests in a eopartnership, the assets of whielt are svbseguently transferred to a joint stoch association - the interest of the testator in the association does not pass thereunder - what is not a transfer of stock in violation of articles of association providing that no member shall sell or transfer the capit~il stock without first offe7ing it to the association - right of the beneficiary to elect to take the stock instead of the proceeds - what income passes to the residuary legatee.</p> <p>March 21, 1894, John G. Lane and William J. Lane, who were equal partners, entered into an agreement to divide the copartnership business into six equal shares as follows: Two shares to William J. Lane in trust for his minor son Silas; two shares to George Lane, a son of William J. Lane; one share to John M. Janes and one share to John G. Lane to be given to whomsoever he willed. The agreement was to be fulfilled within an extreme period of five years from May 1, 1894, pending which, the copartners were to draw out §20,000 a year from the firm business, if not detrimental thereto, but even if the total of $100,000 could not be taken out before the expiration of the five years, the transfer of the business was still to be then made. The agreement further provided that the new holders must obligate themselves on the completion of the $100,000 payment to continue to pay for three years longer §5,000 annually to the said John G. Lane and William J. Lane or their representatives.</p> <p>In March, 1897, John G. Lane made a will, the 14th and 15th clauses of which provided as follows: “ 14th. If I should die before the consummation of the agreement made by myself and brother William J. Lane for the disposal of our firm’s business, said agreement taking effect May 1st, 1894, and to be consummated May 1st, 1899,1 direct my executors to adhere to the spirit if not possible or advisable to follow the exact letter of the agreement, that injustice may be done to no one. 15th. I further direct that on the consummation of the agreement named, the one-half of my share therein mentioned, that is to say, the half of my one-sixth share, go to my brother, William J. Lane, his heirs or assigns. This has been my intention if I lived, and I desire it carried out in case of my death previous to the consummation of said agreement.”</p> <p>The will contained a residuary clause so that there would have been complete testacy even though the 14th and 15th clauses had been omitted.</p> <p>In May, 1898, prior to which time the sum of §100,000 fixed by the agreement had been withdrawn from the partnership business, articles of association were entered into between John G. Lane, William J. Lane, George Lane and John M. Janes, whereby they formed a joint stock association to which John G. Lane and William J. Lane deeded and transferred all the firm property. The capital stock was divided into 600 shares, of which William J. Lane received 200 shares, George Lane, 199 shares, John M. Janes, 100 shares and John G. Lane 101 shares.</p> <p>John G. Lane died in May, 1899, leaving the 101 shares of stock and an estate of more than §200,000.</p> <p>Held, that William J. Lane was not entitled to any interest in the shares of the joint stock association of which John G. Lane died possessed;</p> <p>That the provision made by the 14th and 15th clauses of the will was subject to a condition precedent that the testator should die before the consummation of the agreement for the disposal of the business of the firm, and that, as the consummation occurred in the lifetime of the testator, the conditional bequest was ineffective;</p> <p>That the 14th and 15th clauses of the will wore simply a statement of the testator’s intention to make a gift of one-half of his share in the business to William J. Lane if he lived to see the consummation of the agreement, and that, as he had lived for almost a year after the consummation of the agreement without, so far as appeared, attempting to make the gift, such intention could not be given effect;</p> <p>That, it appearing that the executors were directed as follows: “To pay all my just debts, make collections, to sell or reinvest securities as may seem necessary,” and that all of the debts and legacies of the testator had been paid, a sale of the stock should not be ordered against the protest of the residuary legatee who desired to take the same in specie;</p> <p>That a clause in the articles of association providing, “No member of the association, nor his executors, administrators or other legal representatives, shall sell or transfer any of the capital stock of the association held by him or them, without first offering the same for sale to the association, or, if it decline the option, to a member thereof at a price not exceeding the appraised value of such stock at the time of such offer, determined and recorded as aforesaid,” did not make it obligatory upon the executors to sell the stock as such provision did not require a sale in the event of the death of one of the members, but simply provided that if a sale should be made, the association or a member thereof should have the first opportunity to buy;</p> <p>That the mere delivery of the stock to the residuary legatee by the executors was not a transfer within the meaning or intent of the provision in question; That all the income of the estate not otherwise disposed of would pass under the residuary clause.</p>

Appeal by William Miller Collier and others, constituting the State Civil Service Commission, defendants in each of the above-entitled proceedings, from an order of the Supreme Court in each proceeding, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of March, 1902, directing that a peremptory writ of mandamus issue requiring the defendants to strike from the competitive class the position held by the…

Hirschberg, J., dissented. Appeal by the defendant, William Dershem, from a judgment of the County Court of Richmond county in favor of the relator, bearing date the 24th day of March, 1902, and entered in the office of the clerk of the county of Richmond, affirming a judgment rendered in the City Magistrates’ Court of the city of New York adjudging the defendant to be a disorderly person, in that he had abandoned his wife and left her in danger of becoming a charge upon the…