Volume 78 — New York Supplement

<p>1. Logging — Bursting of Boom — Damage to Dam — Duty to Repair.</p> <p>Plaintiff owned a dam, in which was a log boom used by defendants. On one occasion when the boom broke defendants notified plaintiff’s foreman to repair it, which he did, sending the bill to defendants, who paid it. Subsequently the boom broke, injuring plaintiff’s dam, but the materials which gave way were not put in by plaintiff. Held not to show that plaintiff had assumed the responsibility of repairing and maintaining the boom.</p> <p>8. Evidence — Scope of Objections.</p> <p>Objections to testimony do not raise the question of the competency of the witness to give the testimony objected to.</p> <p>Fursman, J., dissenting.</p>

<p>Action by the department of health of the city of New York against the Ebling Brewing Company to recover a penalty for a violation of Sanitary Code, § 134.</p>

<p>1. Divorce — Custody op Child — Education.</p> <p>A decree in divorce gave the custody of a five year old child to the mother, who resided in New York City, except during the summer vacation season and Christmas holidays, when the father, without the city, was to have the custody. A modification of the decree required the boy to stay with his mother one half the year, and with his father, at the home of the child’s paternal grandfather, without the city, the other half. Held, on appeal from the order modifying the decree, that while it appeared that the paternal grandfather’s home would be most advantageous to the child, the decree, as modified, would so interfere with the child’s schooling as to warrant reversal.</p>

<p>In the matter of the estate of Ogden Goelet. Proceeding for assessing the collateral inheritance tax.</p>

Action by James O’Connell against John T. Clark and another for injuries received while unloading defendants’ vessel. Judgment dismissing plaintiff’s complaint at the close of his evidence, and plaintiff appeals.

<p>1. Servant — Wrongful Death — Nonsuit.</p> <p>Judgment of nonsuit was proper in an action for the death of an elevator employe where it merely appeared that after he had run the elevator a week his fellow workman heard a groan, and found him crushed between the floor and the car, and he only lived long enough to say that he did not know how the accident happened, and plaintiff’s own witnesses testified that he had been given instructions, and it was shown that if they had been followed the injury would not have happened.</p>

In the matter of the application of Andrew J. Fulton, a person who expects to be a party to an action to be brought, to take the deposition of Oscar T. Sewall. From an order vacating an 'order for examination of Sewall as a witness, Fulton appeals.

<p>Appeal from special term, Westchester county.</p> <p>Mandamus by the people, on relation of J. Frank Wright, against Jesse F. Holdredge and others, aldermen of, and composing the common council of, the city of Mt. Vernon, to compel payment of a judgment against the city of Mt. Vernon, with which was consolidated a motion by the city of Mt. Vernon for the vacation of the judgment entitled in the original proceeding. From an order of the special term granting the motion to enter a peremptory writ of mandamus entitled in the mandamus proceeding, defendants appeal. Action on appeal suspended.</p>

<p>Appeal from trial term, Orange county.</p> <p>Action by Carrie Boushay, as administratrix of the estate of Adel-bert E. Eoushav, against the Erie Railroad Company, p'rom a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals.</p>

Action by Daniel McIntosh and others against Fields S. Pendle-ton and others. From an interlocutory judgment, plaintiffs and defendant Pendleton appeal.

In the matter of the application for funds of Josiah J. White, guardian of the person of Frederic Hall White, an infant. From an order refusing to vacate a prior ex parte order requiring the Long Island Loan & Trust Company, guardian of the property of the infant, to pay a retainer to the attorney of the guardian of the person, said company appeals.

<p>Appeal from municipal court of New York.</p> <p>Action by Joseph Loader and another against the Brooklyn Chair Company. From a judgment of dismissal, plaintiffs appeal.</p>

<p>Appeal from municipal court of New York.</p> <p>Action by Charles E. Denton against the Brooklyn Heights Railroad Company. From a judgment of dismissal, plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Habeas corpus, on relation of Anna McGrath, against Sarah Coop* er. From an order dismissing the writ, relator appeals. Affirmed.</p>

<p>Action by Benjamin Blum against Clara Dabritz personally and -as executrix of Edward Debritz, deceased.</p>

<p>Appeal from trial term, Erie county.</p> <p>Action by Allen McNabb, trustee, against Catharine Whissel. From a judgment for plaintiff, defendant appeals.</p>

Proceeding by Schuyler C. Brown to compel an accounting by Susanna L. Clapp, as administratrix, etc., of Cornelius Fonda, deceased. From the order directing the accounting, defendant appeals

In. the matter of the application of William L. Lazenby for a peremptory writ of mandamus against the board of police of the city of Elmira. From an order denying his application, he appeals. The application by the appellant, Lazenby, was for a peremptory writ of mandamus restoring him to the office of a member of the regular police force of the city of Elmira. Prior to the 11th day of June, 1902, the appellant had been a member of said police force.

<p>Suit by William E. Heyward against Mary J. Wilmarth. Judgment for plaintiff.</p> <p>Suit for specific performance of an agreement to convey real estate.</p> <p>The defendant leased to the plaintiff a lot of land for a term of three years, the lot being bounded and described in the léase. The lease next contained the following clause:</p> <p>“That the said lessee shall have the privilege of purchasing said premises and the land of the said lessor adjoining on the east at a price not to exceed $3,000 at any time during the term of this lease.”</p> <p>The plaintiff during the term gave notice of his option to purchase, and tendered $3,000 and demanded a deed of conveyance. The defendant refused to convey.</p> <p>The defendant claimed that the said agreement to sell was void under the statute of frauds in respect to such adjoining lot, for the reason that the agreement did not sufficiently describe it.</p>

<p>1. JijS-'icrj or the Peace — Unauthorized Continuance — Jurisdiction.</p> <p>Where an action before a justice of the peace was three times adjourned or. the application of the plaintiff, after defendant had withdrawn from the case, and in his absence, such unauthorized adjournments deprived the justice of jurisdiction.</p> <p>2. Same — Summons—Constable’s Return — Impeachment.</p> <p>W.iere on the return day defendant offered to prove that the summons was not served on him, and that the constable’s return'was incorrect, and the justice refused to permit such proof, without any objection to the form of the offer or the character of the proof, such refusal was reversible error.</p> <p>¶ 2. See Justices of the Peace, vol. SI, Cent. Dig. §§ 193. 358.</p>

Action by Carrie Eashaway against William E. Young, as administrator with will annexed of the estate of Frank Eashaway, deceased. From an order setting aside a verdict for plaintiff and granting a new trial, plaintiff appeals.

Attachment proceedings by Jonathan Levi and another against Harry D. Goldberg. From an order of the special term, made on motion of Walter McEwan, a junior attaching creditor, setting aside a sale of perishable property to Albert Levi under plaintiffs’ attachment proceedings, and directing a resale, on the ground of collusion and fraud, evidenced by the inadequacy of the purchase price, Albert Levi appeals.

Action by Mannie Prank, as trustee in bankruptcy, against Isaac Musliner and others, to recover goods received by defendant under a void bill of sale. From a judgment entered on report of referee in favor of plaintiff, defendants appeal.

<p>Appeal from special term.</p> <p>Action by Florence B. Schwaman against Edgar I. Truax and others to set aside a final judgment in partition. From a final judgment, entered on an interlocutory judgment sustaining a demurrer to the complaint for want of facts, plaintiff appeals.</p>

Action by Howard McKinlay against Margaret Van Dusen and others. Judgment dismissing the complaint for insufficiency of facts, and plaintiff appeals.

<p>1. Monet Paid for the Benefit of a Third Party — Promise to Repay— Consideration.</p> <p>Where plaintiffs, being under no obligation to pay defendant’s debt to a third party, paid the same without defendant’s previous request, plaintiffs were not entitled to recover on defendant’s subsequent express promise to reimburse them for the amount so paid; such promise being without consideration.</p> <p>¶ 1. See Contracts, vol. 11, Cent. Dig. §§ 357, 358, 359.</p>

<p>Appeal from municipal court, borough of Brooklyn, Third district.</p> <p>Action by Philip Schwickert against Isaac Levin. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from supreme court, Westchester county.</p> <p>Action by Anton Day against Frederick Eisele and another to foreclose a mechanic’s lien. From a judgment on a decision in favor of plaintiff and defendant Frederick Borgwald, defendant Eisele appeals.</p>

Action by R. J. Cooper, on behalf of creditors of William C. Cooper, deceased, against Maggie E. Cooper and another. From a judgment in favor of plaintiff, defendant Maggie Cooper appeals. Motion to dismiss appeal.

Action by the Ballston Terminal Railroad Company against the Hudson Valley Railway Company to restrain defendant from crossing plaintiff’s street railway tracks. From an order granting a temporary injunction, defendant appeals.

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

<p>Appeal from special term, Kings county.</p> <p>Action for personal injuries by Katharine V. Whitaker against the Staten Island Midland Railroad Company. From an order denying plaintiff’s motion to vacate an order for the physical and personal examination of plaintiff, she appeals.</p>

<p>Appeal from trial term, Westchester county.</p> <p>Action by Dora S. Thompson against Charles M. Stebbins. From .a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.</p>

<p>Appeal from special term, Suffolk county.</p> <p>Action by Dora S. Holbrook Brown and others against Ann Eliza Fish and others. From an order granting the motion of defendant Fish to strike out certain allegations of the complaint as irrelevant and redundant (75 N. Y. Supp. 460), plaintiffs appeal.</p>

<p>1. Compromise of Actions — Consideration.</p> <p>Where action was commenced on a disputed claim, and a compromise was effected whereby the defendant paid less than the full amount in consideration of the agreement of plaintiffs to discontinue the action without further costs, the payment constituted a sufficient consideration for the plaintiff’s agreement.</p> <p>H. Same — Attorney’s Lien.</p> <p>Plaintiff’s attorney, by way of enforcing his lien, entered judgment against the defendant, whereby he was compelled to pay additional costs and expenses. Held, that the fact that the judgment was entered to secure the attorney’s lien afforded no defense for plaintiffs’ breach of contract.</p> <p>8. Same — Action for Breach of Contract — Estoppel.</p> <p>The judgment did not operate as an estoppel to prevent the bringing of an action for a breach of the contract.</p>

Petition by Howard Cohen for leave to disinter the remains of his deceased mother from the cemetery of the Congregation Shearith Israel, in the city of New York. From an order granting leave to disinter the remains, and directing the congregation to permit such disinterment, the congregation appeals.

Action by Joseph Rose against John King and John G. McCullough, as receivers of the New York, Lake Erie & Western Railroad Company, to recover damages for breach of the contract of carriage between the company and plaintiff. Verdict for plaintiff for $76, and from an order setting aside the same and granting a new trial, unless plaintiff stipulated to reduce the verdict to the sum of $2, plaintiff appeals.

<p>Appeal from trial term, Westchester county.</p> <p>Action by Joseph Wagner against William L. Conway and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.</p>

<p>1. Tows— Negligence — Evidence.</p> <p>Where the evidence in an action for personal injuries showed that defendant’s agents in charge of a barge and tug fastened together and aggregating 55 feet in width attempted to pass the tow diagonally through an open draw only 60 feet in width, and thereby struck an abutment of the bridge, tearing away the footpath, and throwing plaintiff, who was standing on the abutment, upon the stone and crib work underneath, there was a sufficient showing of negligence to take the question to the jury.</p>

<p>1. Fokpeitures — Trespass on Forest Preserve — Tax Deed — Regularity of Proceedings.</p> <p>A defendant, in an action for a forfeiture for cutting and carrying away trees on land forming a part of the forest preserve, under Laws 1895, c. 395, § 280, authorizing actions for trespass on the forest preserve, who merely claims to be an occupant of such land, but without any title thereto, cannot question the validity of tax deeds issued by the comptroller for nonpayment of taxes assessed thereon as unoccupied property owned by nonresidents, and which were duly recorded more than two years before the alleged trespass; Laws 1896, c. 908, § 132, making a comptroller’s tax deed, after the lapse of two years from record, conclusive evidence of the regularity of the sale and all proceedings prior thereto.</p> <p>2. Same — Right of Action — Statutes—Amendment.</p> <p>The right of action for cutting and carrying away trees on the forest preserve, given by Laws 1895, c. 395, § 280, is not taken away by the amendment thereto made by Laws 1896, c. 114, and enacted subsequent to such trespass.</p>

<p>Appeal from special term, Albany county.</p> <p>Action by Matthew Drohan against Robert O’Brien. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.</p>

<p>Appeal from municipal court, borough of Brooklyn, Fourth district.</p> <p>Action by Julius Muth, as trustee of Lulu E. Wuest, against Charles Wuest. From a judgment dismissing plaintiff’s complaint on the merits, he appeals.</p>

<p>.1. Appeal — Successive Verdicts for Plaintiff — Effect.</p> <p>In an action to recover damages for the wrongful taking of a piano from plaintiff’s possession, where the sole issue was whether the piano belonged to plaintiff or to his daughter, and two' juries in succession found for plaintiff on substantially the same evidence, and the trial justices in each instance refused to set aside their verdicts, the court on appeal could not interfere with the second verdict as against the weight of evidence.</p>

<p>Appeal from special term, Rensselaer county.</p> <p>Action by Sarah A. Tyler against the village of Lansingburg From an order of the special term of the supreme court (76 N. Y. Supp. 139) directing the city of Troy to be substituted as defendant, the city of Troy appeals.</p>

Action by James W. Greene against Edward Mussey and others. From an order (77 N. Y. Supp. 851) making John A. Carnduff a party defendant, and authorizing the issue of a supplementary summons for that purpose, he appeals. In an action in 1895, in which this appellant’s father was named as a party defendant, a judgment was entered foreclosing a mortgage upon land owned by John Carnduff, appellant’s father, and directing a sale of said land.

Action by Isabella E. Eake, administratrix of Hiram Lake, deceased, against George W. Anderson. From the judgment, defendant appeals. This judgment determined the terms of the partnership existing between the defendant and Hiram Lake, plaintiff’s intestate, prior to January 13, 1896, when Hiram Lake died, and further stated the account between the parties. In the complaint the plaintiff alleged: First. Her appointment as adminis-tratrix. “Second.

Action to foreclose a mortgage brought by Appollonia Hodges and another against Norman S. Walker, Jr. Judgment of foreclosure and sale were granted, and the premises were bid in by plaintiffs’ attorney, who duly assigned his bid to Margaret J. Cornell. From an order refusing to compel said Cornell to complete her contract of purchase, plaintiffs appeal.

In the matter of proving the last will and testament of Harriet C. Nash, deceased. From a decree admitting the will to probate, Hat-tic J. Green appeals.

Action by the Saugerties & New York Steamboat Company against William Starr Miller. From a judgment for plaintiff, defendant appeals. The defendant was the owner of a residence at Rhineelift, upon the Hudson river, in the state of New York, and also of one at Newport, in the state of Rhode Island.

<p>1. Personal Injuries — Pleading—Evidence.</p> <p>Allegation In the complaint that plaintiff received a concussion of the spine does not allow proof of injury to his sexual organs, it not being a necessary and immediate result from the injury pleaded.</p> <p>2. Pleadings — Amendment on Appeal.</p> <p>Though on the first trial evidence as to injuries not pleaded was, admitted without objection, yet on appeal from the judgment on the second trial the complaint will not be amended or the variance disregarded, where on the second trial the defect was specifically pointed out by objection to the evidence, and the trial court was not asked to make the amendment</p>

<p>1. Justice Coujrt — Appeals—Offer to Confess Judgment — Service on Attorney Below — Sufficiency.</p> <p>Code Civ. Proc. § 3070, provides that, upon an appeal írom a justice’s-judgment for money, either party may serve upon the attorney of the adverse party a written offer to allow judgment in the appellate court for a specified sum, thereby avoiding liability for costs. Held, that the offer must be served on the attorney representing the party in the appellate court.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Gilbert P. Hopkins against Julian H. Meyer and another. From so much of an order opening the default of defendants at the trial as imposed terms and conditions, they appeal.</p>

Certiorari by the people, on the petition of the J. B. Lyon Company, directed to John T. McDonough, as secretary of state, Nathan L. Miller, as comptroller, and John C. Davies, as attorney general, constituting the printing board, directing them to make return of their proceedings, determinations, and actions in the matter of awarding the legislative printing, and entering into a contract therefor with the Argus Company for the year commencing October i, 1902.

Actions by Sarah Martin against the Universal Trust Company, and- by the Universal Trust Company against Sarah Martin and others. From an order denying her motion to vacate two default judgments entered against her, Sarah Martin appeals.

<p>Appeal from trial term, Queens county.</p> <p>Two separate actions by John Kastner and by Joseph Kastner, both infants, by Frederick Kastner, their guardian ad litem, against the Long Island Railroad Company. From judgments for plaintiffs, and from orders denying new trials, defendant appeals. Reversed.</p>

<p>1. Street Railroads — Construction—Consent—Partial Compliance.</p> <p>Where a railroad company proceeded under the Railroad Law, §§ 91, 92, to obtain the consent of the commissioners of highways of a town to construct its track over and along about five miles of a certain highway, and filed the written consent of the owners of more than two-thirds of the value of the property along the proposed route, the company could not abandon all but about 3,100 feet of the route, and construct their track for only that distance on such highway, by virtue of the consents obtained.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Count W. Weeks against E. Holloway Coe, executor of E. Frank Coe, deceased. From an order granting an extra allowance, defendant appeals.</p>

Action by Charles E. Willis against the Metropolitan Street Railway Company. From a judgment of dismissal entered at the close of plaintiff’s case, and from an order denying a motion for a new trial, plaintiff appeals.

<p>1. Street Railways — Street Intersections — Control of Car.</p> <p>At street intersections it is the duty of a street railway company to have its cars under control, so as to protect the rights of pedestrians.</p> <p>8. Same — Question for Jury</p> <p>The question whether a street car was at a certain time under control is for the jury.</p> <p>8. Same — Negligence—Evidence.</p> <p>In an action against a street railroad, the plaintiff’s evidence was that he was struck at one side of a street, and carried or pushed by the car to the other side of the street before the car came to a standstill, and that this distance was 25 or 30 feet; that there was no bell sounded, or other warning given. Held sufficient evidence for the jury to consider upon the question of the defendant’s negligence.</p> <p>■4. Same.</p> <p>In an action for injuries from being run into by a street car, evidence considered, and held that the question of plaintiff’s contributory negligence was for the jury.</p> <p>5. Same — Damages.</p> <p>In an action against a street railway company for injuries, it appeared that plaintiff was 45 years of age, and a mason, who had earned from $3 to ?5 per day; that one of his hands was practically ruined for the purposes of his trade; that he had suffered much pain, and had paid or was liable to pay considerable in doctor’s bills. Held, that a verdict for $10,885.62 was not excessive.</p>

<p>1. Bailment — Liability of Bailee.</p> <p>A person hired of defendant coaches to be used at an entertainment, and defendant agreed to care for such teams as should be sent from a distance. Pursuant to such agreement, carriages of plaintiff were driven to defendant’s stable, and, with defendant’s permission, certain articles that were in the carriages were left in the office of the stable. The articles disappeared, and defendant declined to give any explanation. Held, that defendant was liable for their value.</p>

<p>1. Co-Tenancy — Payment op Taxes and Interest by Co-Tenant — Right op Recovery.</p> <p>A co-tenant paying the taxes on the premises and the interest on a mortgage thereon during the lifetime of a widow in possession thereof entitled to dower therein, but which had not been admeasured, can only recover from his co-tenants the share of such taxes and interest paid for their benefit, but not the share thereof paid for the benefit of the widow for which she was liable.</p>

<p>1. Vacating Judgment — Absence op "Witness.</p> <p>Under Laws 1896, c. 748, providing that a motion to vacate a judgment may be made for the causes specified in Code Civ. Proe. § 999, a judgment may not be vacated because of absence of a witness at the trial; section 999 providing for new trial on exceptions, or because the verdict was excessive or inadequate, or otherwise contrary to the evidence or the law.</p> <p>2. New Trial — Absence op Witness — Protecting Rights at Trial.</p> <p>Where a party, surprised by absence of a witness who was present in court the day before the trial, took no steps at the trial to protect his rights, he is not in a position to ask for a new trial because thereof.</p>

Action by Mary L. Johnson against Charles S. Cole and another. From an interlocutory judgment, on the report of a referee, determining the rights and interests of the parties in and to real estate, and providing that on distribution of the estate of Lucia A. Cole, the mother of the parties, defendants should be charged with certain advancements, they appeal.

In the matter of the appraisal of the estate of Daniel A. Bullard, deceased, under the law relating to taxable transfers of property. From a decision and decree exempting certain personal property from taxation under the law (76 N. Y. Supp. 309), the comptroller appeals.

<p>1. FRATERNAL, SOCIETY — AGREEMENT TO PAY MEMBER’S DüES — DEATH OF MEMBER — Rights of Parties.</p> <p>From 1896 to 1901, decedent bad paid to defendant $84 a year, under a contract whereby defendant was to pay his dues in a fraternal society. In April, 1901, decedent returned the contract for cancellation, and defendant then promised to disburse for him 8186 in payment of dues, which at the then rate of assessment would pay them up to May, 1907. Decedent died in October, 1901, at which time defendant had only paid out $20 under the second contract. It did not clearly appear whether decedent had actually paid to defendant the amount which it had agreed to pay for him or not. Held, that a judgment for defendant, in an action by decedent’s personal representatives to recover the difference between the $186 and the amount paid out, was proper.</p>

<p>1. Eminent Domain — Sanitary Protection — Conditioning Land — Damages.</p> <p>Under Laws 1896, c. 674, authorizing the commissioners of public works to release land from conditions imposed for the sanitary protection of the water supply of New York City, and to assess damages, the owners of land leased were not entitled to alleged losses sustained by people not purchasing the conditioned premises at a time when it is alleged there was a large demand for such property, where the evidence did not establish that bona fide transactions for sale were defeated by the conditions.</p> <p>2. Same — Awasd oe Commissioners.</p> <p>The award of the commissioners, being based both on testimony and on view of the premises, would not be disturbed unless palpably wrong.</p>

<p>1. Appeal — Trial—Findings—Presumptions.</p> <p>Where, in an action for a balance on a contract for the purchase of boohs, defendant claims that he was dissatisfied and returned them, and the case is submitted without instructions to a jury, which finds for defendant, it will be presumed on appeal that the jury found that the books did not accord with the terms of the contract.</p> <p>2. Sales — Contract—Evidence—Sufficiency.</p> <p>Where a contract for the sale of books to defendant merely specified that they were to be bound in buckram, and those delivered were so bound, and there was no evidence that they, were “unfinished and incomplete” except defendant’s testimony, a finding in his favor cannot be sustained.</p> <p>3. Foreign Corporation — Pleading—Authority to Do Business.</p> <p>Where a complaint alleged that plaintiff was a foreign corporation, to which defendant answered that he had no knowledge or information sufficient to form a belief, but did not affirmatively set out that plaintiff had not complied with Laws 1892, c. 687, § 16, requiring foreign corporations to obtain a certificate of authority to do business in the state, plaintiff could recover without showing that fact.</p>

Summary proceedings for nonpayment of rent by Marie Castag-nette, landlord, against Charles Nicchia, tenant. From a judgment awarding possession of the premises to plaintiff, defendant appeals.

<p>1. Ded [cation op Street — Acceptance—Effect.</p> <p>Action of the common council of a city in recognizing a certain street as a public highway after an offer of dedication by the owner of the fee, and at a time when there had been no attempt to rescind the same, constituted the street a public highway.</p> <p>2. Appeal — Presumptions—Sufficiency of Evidence.</p> <p>Where there is no statement that the case contains all the evidence, the court, on appeal, must assume that the evidence was sufficient to support the judgment.</p> <p>¶ 1. See Dedication, vol. 15, Cent. Dig. §¶ 70, 75.</p>

<p>1. Contempt Pboceedings — Fame Swearing — Burden qe Prooe.</p> <p>In proceedings to punish a person for contempt for falsely qualifying on a bond to release property from a lien, the burden of proof was on the plaintiff to show that defendant falsely swore he was worth twice the amount of the bond.</p> <p>2. Same — Degree oe Evidence.</p> <p>The falsity must be proved beyond a reasonable doubt.</p> <p>8. Same — Evidence—Sufficiency-</p> <p>In contempt proceedings, for falsely qualifying on a bond given to release property, from a mechanic’s lien, evidence examined, and held insufficient to prove that defendant was insolvent at the time he qualified.</p>

Action by Paul A. Sabbaton, Jr., by John P. Taylor, his guardian ad litem, against Mary A. Sabbaton and Fred A. Sabbaton, personally and as executors and testamentary trustees under the will of Frederic A. Sabbaton, deceased, and others. Judgment dismissing plaintiff’s complaint, and he appeals. The action is brought for partition. The plaintiff claims under the win of Frederic A. Sabbaton.

<p>Appeal from trial term, Kings county.</p> <p>Action by Joseph A. Trapp against Frederick N. Du Bois. From a judgment for plaintiff, defendant appeals.</p>

Appeal.from trial term, Rockland county. Action by John H. Usher against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by David S. Hanna, for himself and others similarly situated who shall choose to make themselves parties, against the People’s National Bank of Salem, N. Y., and Charles Lyon and others, as directors, to recover for the loss of the value of the stock, alleged to have been occasioned by the negligence and misconduct of the directors in the discharge of their duties. From a judgment entered on the decision of the court, without a jury (71 N. Y. Supp. 1076), adjudging the directors guilty of negligence in the discharge of their duties, and that they pay over to the bank, for the benefit of plaintiff and two others who made themselves parties, a designated sum, defendants appeal.</p>

<p>1. School Districts — Change op Boundary — Constitutional Law.</p> <p>The legislature being empowered by Const, art. 8, § 1, to create municipal corporations and to alter and repeal them, Laws 1898, c. 576, taking territory from one school district and including it in another, violates no obligation of contract so far as concerns the district from which it is taken.</p> <p>2. Same — Special Legislation.</p> <p>A school district is a municipal corporation, within Const, art. 8, § 1, excepting such corporations from the prohibition against creating corporations by special act.</p> <p>8. Same — Maintaining Action.</p> <p>Const, art. 8, ¶ 3, providing that all corporations shall have the right to sue in like cases as natural persons, is to be read with Code Civ. Proc. § 449, authorizing one to sue only where he has a real interest; and, having no power to protect taxpayers or creditors, a school district cannot maintain an action attacking an act taking territory from it, and including it in another district, on the ground that it will increase the taxes of the remaining taxpayers, and impair the security of creditors.</p> <p>¶ 1. See Constitutional Law, vol. 10, Cent. Dig. § 334.</p>

Action by John Collins against John C. McGuire, pending the determination of which plaintiff died, and Nellie A. Collins was substituted as plaintiff. Judgment for defendant, and plaintiff appeals.

Suit by the New York Cement Company against the Consolidated Rosendale Cement Company and others, and by the same plaintiff against defendant Rosendale Cement Company. From orders granting injunctions against defendants, the Rosendale Cement Company appeals.

Action by Mark C. Kilsby against Edmund De Forest to recover damages for a breach of warranty in the sale of three cows to plaintiff by defendant. From a judgment of the county court affirming a judgment in justice’s court in favor of plaintiff, defendant appeals.

<p>1. Motions — Costs—Nonpayment—Stay.</p> <p>Though Code Civ. Proc. § 779, provides that, where motion costs are not paid, all proceedings are stayed without further direction of the court, plaintiff, by noticing a cause for trial after defendant’s motion for receiver was denied, with costs, which were not paid, waived the stay, at least to the extent of allowing defendant to take part in the trial.</p>

<p>Appeal from trial term, Albany county.</p> <p>Action by John H. Larkin, as administrator of Mary Larkin, deceased, against the United Traction Company. From an order setting aside a verdict for plaintiff, he appeals.</p>

<p>1. Street Railways — Passenger—Injuries—Negligence— Evidence — Question for Jury.</p> <p>In an action against a street railway for injuries to a passenger, evidence considered, and held, that the question of defendant’s negligence was for the jury.</p> <p>3. Same — Contributory Negligence.</p> <p>In an action against a street railway for injuries to a passenger, evidence considered, and held, that the question of plaintiff’s contributory negligence was for the jury.</p> <p>Williams, J., dissenting.</p>

Action by Oscar M. Wood, as trustee in bankruptcy of James C. Ward, known as James C. Dillenbeck, against James C. Ward and others, to recover the bankrupt’s interest in certain real estate devised. From a judgment in favor of defendants, plaintiff appeals.

<p>Appeal from Delaware county court.</p> <p>Proceedings supplementary to execution upon the application of Henry Y. Canfield, judgment creditor, against Eeroy Wyman, judgment debtor. From an order refusing to dismiss the proceedings, but in favor of the debtor, each of the parties appeals.</p> <p>The county judge of Delaware county on September 13, 1891, made an order that the judgment debtor, Wyman, appear in proceedings supplementary to execution before a referee on September 20th, and answer concerning his property. This order was made upon an affidavit in all respects sufficient to warrant it. On September 16th sueh order and a paper purporting to be a copy of the affidavit were served upon Wyman. The paper was a copy, except it contained the printed words, “said judgment debtor’s appearance, or,” which had been stricken out in the original, so that the copy was made to read, “that said judgment was duly rendered upon said judgment debtor’s appearance, or personal service of the summons upon said judgment debtor,” instead of stating, as it did in the original, that it was rendered upon personal service upon the defendant. On the 20th, Wyman appeared specially before the referee, and took the objection that, no copy of the affidavit having been served upon him with the .order, he was not obliged to be sworn and answer concerning his property. It was finally agreed, however, that he should then be sworn, and answer conditionally, and that the question of his liability to do so under the order should be thereafter presented to the county judge; the agreement being that, if the service was held sufficient, the evidence so taken should be deemed operative in the proceedings, but, if the service was held insufficient to authorize the referee to take the examination, then the evidence so taken should go for naught. On the examination it appeared: That when the order was served upon Wyman he had just received $44 for milk he had sold to a eondensery during the month ending September 15th. He resided upon a farm that he rented for $25 per month. He had a family, consisting of a wife and three children, living with him. That he worked the farm, and the milk was “the proceeds of labor from such farm.” The whole of such money was necessary for the paying of his rent and the support of his family, and his rent was due at the end of each month. He claimed that such $44 were exempt under section 2463 of the Code. The referee made a report in accordance with the above facts, and, upon its presentation to the county court, Wyman asked for a decision that the service was not sufficient to- warrant the examination, and that the order and all the proceedings be dismissed. The court held that the service was sufficient to give the referee jurisdiction to act, and refused to dismiss the proceedings. The judgment creditor asked the court for an order directing the judgment debtor to pay over the $44, to be applied on his judgment. The court declined to do so, holding that such money was exempt. An order was entered to the above effect, with $10 costs against the judgment creditor, Canfield.</p>

<p>1. Witnesses— Impeaching Credibility.</p> <p>It is improper, in attempting to impeach a witness, to ask him whether he has ever been impeached, but the persons by whom it is sought to> discredit him must themselves be produced in court.</p> <p>8. Same — Prejudicial Error.</p> <p>Testimony by a witness for defendant, brought out on his cross-examination, to the effect that he had been impeached in a prior case, must he assumed to have prejudiced defendant.</p>

<p>Appeal from special term, Onondaga county.</p> <p>Action by Luzerne A. Williams, as surviving partner of the firm of Case, Williams & Co., against John Magee and others, as executors of the estate of George J. Magee, deceased, impleaded with Edgar Munson and others. From a judgment sustaining a demurrer to an amended complaint and dismissing the cause, plaintiff appeals.</p>

<p>1. Insurance — Fire Policy — Other Insurance — Knowledge op Agent.</p> <p>Knowledge of the local agent of an insurance company of the existence of other insurance on property is knowledge of the company.</p> <p>2. Same — Written Waiver — Action—Defense.</p> <p>Where a fire policy provided that it should be void if there were other insurance on the property, unless otherwise provided by agreement indorsed on the policy, but the insurer knew of other insurance when the policy was issued, in an action on the policy the insurer cannot escape liability because its knowledge was not evidenced by a written indorsement or other written waiver.</p> <p>8. Same — Other Insurance — Renewal—New Policy.</p> <p>A fire policy provided that it should be void if other insurance on the property were taken without agreement thereto indorsed on the policy. In another policy then in existence on the property it was provided it might “be continued by renewal.” Held that, on the expiration of the latter policy, taking a new one instead of a renewal certificate did not vitiate the former as a taking of insurance.</p> <p>¶ 3. See Insurance, vol. 28, Cent. Dig. § 864.</p>

<p>Appeal from special term, Jefferson county.</p> <p>Action by Ella E. Boon against Alvin S. Hall, as trustee, etc., of the estate of Stephen Boon, deceased, and others, for the foreclosure of a mortgage. From a judgment in favor of plaintiff, defendants .appeal.</p>

<p>Appeal from trial term, Onondaga county.</p> <p>Action by John V. Kilkin against the New York Central & Hudson River Railroad Company. From judgment on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial, defendant appeals.</p>

Action by Harvey J. Hurd and another against George Wing. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

Action for an injunction by Amos Post against the Hudson River Telephone Company. Order refusing to vacate an injunction granted pendente lite, and defendant appeals. The plaintiff is the owner of a lot situated on the westerly side of Main street, in the village of Catskill. The sidewalk in front of such premises on Main street is about 10 feet wide.

<p>Appeal from trial term, Madison county.</p> <p>Augustus Loomis was convicted of burglary in the third degree and grand larceny in the second degree. His motion for a new trial was denied, and he appeals.</p>

<p>Appeal from trial term.</p> <p>Action by Karoline Schane against the Metropolitan Life Insurance Company on a policy of life insurance, the defense being based on the breach of warranties of certain statements made by deceased to the medical examiner. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Appeal from trial term, Erie county.</p> <p>Action by Edward P. Beals and others against the Fidelity & Deposit Company of Maryland and others. From a judgment in favor of plaintiffs, defendant Deposit Company appeals.</p>

<p>1. Vicious Dog — Injury to Child — Liability or Owner.</p> <p>One who knowingly kept a vicious dog, which, though unmolested at the time, bit a child on a public street, could not relieve himself from liability by showing that the child had on previous occasions tantalized the animal .when secured in its kennel; it appearing that the child did not have sufficient intelligence to understand that such conduct might induce the dog to bite it when opportunity offered.</p> <p>2. Witnesses — Impeaching Credibility.</p> <p>In an action to recover damages for injuries in being bitten by a vicious dog, where defendant’s wife had testified that the dog was tractable, etc., it was not reversible error to permit plaintiff, on cross-examination, to ask her whether she had not stated immediately after the injury that, if she had had a revolver, she would have shot the dog, and that she had told the defendant to take care of it, or it would bite somebody, and, on her denying the statement, to call the persons to whom she was claimed to have made it.</p> <p>¶ 1. See Animals, vol. 2, Cent. Dig. §§ 238-240.</p> <p>Hiscock, J., dissenting.</p>

<p>Appeal from special term, Saratoga-county.</p> <p>Action by Arthur Wilmot against Annie Bell. From a judgment for plaintiff on the decision of the court after a trial, defendant appeals. Modified.</p>

<p>Appeal from trial term, Erie county.</p> <p>Action by Thomas F. Minor against William H. Crosby, Harmon H. Fulton, and others. Judgment for plaintiff, and the named defendants appeal.</p>

Action by John Mauthey against the Wyoming County Co-operative Fire Insurance Company. From an order denying a motion to vacate an order, previously granted, directing the secretary of defendant to appear for examination, defendant appeals.

<p>Appeal from special term, Cattaraugus county.</p> <p>Action by James G. Johnson against the New York & Pennsylvania Telephone & Telegraph Company. From an interlocutory judgment on a decision sustaining a demurrer to the fourth defense in the amended answer, defendant appeals.</p>

<p>1. COUNTEKCLAIM — WHAT CONSTITUTES.</p> <p>Code Civ. Proe. § 501, subd. 1, authorizes as a counterclaim a cause of action arising out of the contract or transaction set forth in the complaint or connected with the subject of the action. Plaintiffs sued in conversion to recover $800 paid by defendant O. to plaintiffs’ agent for margins on the purchase of stock made by plaintiffs for C., and which money defendants unlawfully obtained from the agent and refused to repay. 0. set up by way of counterclaim that he requested plaintiffs to purchase certain stock, and “put up and deposited with them as margins $1,110, upon the representations of the plaintiffs that such stock had been purchased, and that these are the same transactions which are set forth in the complaint,” and “that the plaintiffs did not in fact purchase such stock, * * * but declined to return said sum of $1,110,” which defendant seeks to recover. Held to be a proper subject of counterclaim.</p> <p>McLennan and Hiscoek, JJ., dissenting.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by William C. Shires against George R. Shires and others. From a judgment on the report of a referee, defendants appeal.</p> <p>The action is for the partition of certain real property of which Walton A. Winne died seised, intestate, in 1900. He left, him surviving, no wife nor lineal descendant, and the sole question at issue is -whether such property, upon his death, descended to his father’s collateral relatives, or to those of his mother. In 1862 Abram Winne, being then the owner of the property in question, conveyed the same to his wife, Margaret Winne. He died, intestate, in 1873, and she died, intestate, in 1892, leaving, them surviving, said Walton A. Winne, a son, their only heir at law. The claim on the part of the appellants, who are collateral relatives of said Abram Winne, is that such conveyance to Margaret by her husband was in trust, and that the equitable ownership of such property remained in the husband at the time of his death. The referee has found that the mother had the legal title, that upon her death it descended to Walton as her heir, that therefore the inheritance came to Walton on the part of his mother, and that upon his death under the statute it descended to her relatives; and he ordered judgment accordingly. Prom the judgment entered upon such report this appeal is taken.</p>

Action by the Citizens’ Bank of Buffalo against the Rung Furniture Company and others. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal.

<p>1. Mandamus — Inspection op Coepobate Books.</p> <p>Mandamus should not be granted to compel the directors of a corporation to permit a stockholder to inspect its books and papers, except in an emergency and for a necessary purpose, limited by some regard of the interests of the corporation and its stockholders.</p> <p>2. Same.</p> <p>The petition of a stockholder, seeking to compel the directors to permit an inspection of the corporate books, showed that petitioner was the-owner of more than 6 per cent, of the capital stock, and alleged that she desired an examination of such books as would permit her to ascertain whether the corporation had been properly managed during the preceding year, and averred that several transactions mentioned, extending over a period of several years, were of doubtful legality, including years before she became a stockholder, but did not set forth the facts. The directors of the corporation explained the transactions mentioned, and showed that they had been for the best interests of the corporation. They also showed that considerable loss would result from permitting such an inspection. Held that, though assuming that the remedy provided by Stock Corporation Law, § 52, entitling a stockholder owning-more than 6 per cent, of the capital stock to call upon the treasurer of the corporation for a statement of its affairs, is not exclusive, the court could not grant a writ of mandamus to compel the corporation to permit an inspection of its books relating to the transactions specified in the petition.</p> <p>¶ 1- See Corporations, vol. 12, Cent. Dig. § 685; Mandamus, vol. 33, Cent-Dig. § 264.</p>

Action by Eliza J. Evans against the Southern Tier Masonic Relief Association. On the death of plaintiff after judgment in her favor, Martha Evans, her administratrix, was substituted as plaintiff. Defendant appeals. The defendant was organized under chapter 319 of the Laws of 1848, as an insurance corporation doing business on the co-operative or assessment plan.

Action by John E. Hall against the United States Canning Company. From a judgment for plaintiff, and from an order denying a motion for a new trial made on the minutes, defendant appeals.

<p>1. J udgments — -Opening—Agreement—Construction.</p> <p>One of the conditions of opening a default judgment was that defendant should deposit money with a bank, subject to the order of the attorneys of the parties; the deposit to be applied to any judgment plaintiff might recover on retrial, or be returned to defendant’s attorney in the event of determination for defendant. The bank issued a certificate of deposit, but retained it in its possession. The action was retried, and the complaint dismissed. Subsequently an assignee of the plaintiff sued defendant, procuring an attachment, and serving notice thereof on the bank. Held, that, if the bank had returned the money to defendant before service of the attachment, it was not liable.</p> <p>2. Attachment — Evidence—Sufficiency.</p> <p>Judgment in the attachment suit was had against the defendant therein, and this judgment, with rights against the bank, was assigned to one who brought action against the bank. The answer alleged that tile money had been paid out, and the plaintiff testified that the president of the bank had told him the fund was paid out. Held, that this was not sufficient proof of that fact to sustain a verdict for the bank.</p> <p>O’Brien, J., dissenting.</p>

<p>Appeal from trial term, New York county.</p> <p>Actions by the Mutual Roan Association against Joseph S. Lesser and another. From judgments dismissing the complaints, plaintiff appeals.</p> <p>These two actions were brought to recover on two promissory notes given on April 23 and April 24, 1901, — one for $2,000, and the other for $1,000,— by the defendants to B. Hirsch, who sold them to the plaintiff. The defenses were that the notes, if delivered, were given for Joseph S. Lesser personally, and to be held as margin for stock, and were used without authority and without consideration. The answer of Joseph S. Lesser does not deny that the notes mentioned were given, whereas that of Morris Lesser contains a general denial. The notes, as set forth in the complaints, contained the words “with interest.” Upon the trial, Joseph Lesser admitted that the signature of the firm name was in his writing, but testified that the words “with interest” had not been inserted by him, and that the note had been altered in that respect after he delivered it. Mr. Hirsch, the payee, testified that he had received the notes from Lesser & Co., but that the words “with interest” were not there then, but that he put them in upon request of Mr. Sugerman, in his office, when he discounted the notes. The plaintiff’s secretary, Straat, on the,other hand, testified that the words “with interest” were in the notes when they were received by the association. Upon defendants’ motion, the complaints were dismissed, and judgments were entered from which the plaintiff appeals.</p>

Action by Hulbert Gray against the New York Central & Hudson River Railroad Company. Plaintiff moves for a new trial on a case containing exceptions ordered to be heard in the first instance at the appellate division after a direction by the court at a trial term that plaintiff be nonsuited and his complaint dismissed. He-also appeals from an order denying his motion on the minutes for a new trial.

Action by Jacob C. Cook, as administrator of Clarissa Cook, deceased, against Sandy Casler, as executor of Joseph Snell, deceased, and another. From a judgment for plaintiff, defendants appeal.

Supplementary -proceedings by John B. Hamilton, treasurer of Monroe county, for collection of a tax of L- Adler Brothers & Co. Prom an order denying defendant’s motion.to vacate the order for supplementary proceedings, it appeals.

Action by Sophia Wagner, administratrix, against the New York, Chicago & St. Louis Railroad Company. From a judgment on a verdict for plaintiff, and from an order denying a motion on. the minutes for a new trial, defendant appeals.

Action by George Steinson against the board of education of the city of New York. From an order denying plaintiff’s motion for an order enjoining Townsend & Mcllvaine or Tompkins Mcllvaine from acting as his attorneys, he appeals.

Proceedings to foreclose a mortgage by Olive T. Hardy, as trus-. tee, against Victoria Berger, and against Alfred E. Sander and another, as committee of the estate of Victoria Berger. From a judgment for plaintiff, defendants appeal.

Action by Jesse Streets against the Grand Trunk Railway Company and another. There was a verdict for defendants. Motion by plaintiff for a new trial upon exceptions ordered heard at the appellate division in the first instance.

Action by James W. Wilson against the J. H. Flickinger Company. From a judgment for defendant, and from an order denying a motion for a new trial upon the minutes, plaintiff appeals.

Action by George H. Brooks against the Erie Fire Insurance Company. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term.</p> <p>Action by Max Goldberg against Morris Besdine. From a judgment of the municipal court of the city of New York in favor of plaintiff, defendant appeals.</p>

<p>Appeal from special term.</p> <p>Action by George H. Roberts, Jr., and others, against °Minnie M. Schaf. From an order that a notice of trial be deemed sufficient, defendant appeals.</p>

Action by J. Warren Greene against Charles H. Knox and others, as civil service commissioners of New York City, and others. From a judgment overruling the demurrer of certain defendants, they appeal.

Action by Frederick D. Soper against the St. Regis Paper Company. From an order of the special term directing a judgment for plaintiff on the pleadings (77 N. Y. Supp. 896), defendant appeals.

<p>1. Notes — Accommodation Paper — Evidence—Sufficiency.</p> <p>Evidence examined, and held to justify a finding that the note sued on by plaintiff as indorsee was not accommodation paper.</p> <p>2. Same — Security for Debt — Evidence—Sufficiency.</p> <p>Evidence examined, and held to show that the note in suit was taken by plaintiff before maturity as collateral for all rents due or to become due by the payee, and not merely for two months’ rent.</p> <p>Jenks and Woodward, JJ., dissenting.</p>

Action by Melle S. T. Werner against William R. Hearst for personal injuries. From a judgment for plaintiff, and from an order denying defendant’s motion for new trial, he appeals.

<p>Appeal from trial term.</p> <p>Action by A. Conroy Haynes against Horatio N. Fraser. From a judgment for defendant, plaintiff appeals.</p>

On reargument. Former opinion amended by inserting in the-judgment a provision remitting the case to the county court to designate a justice for the new trial.

Action for specific performance by the Mechanics’ National Bank of Providence, R. I., and others against David Roughead and another, impleaded with Edward A. Jones and another. From a judgment for plaintiffs, defendants appeal.

<p>Submission of controversy by Frederick Kronsbein against the city •of Rochester, and Adolph J. Rodenbeck as mayor thereof.</p>

Action for personal injuries by William McCoy, an infant, by James F. McGee, his guardian ad litem, against George W. Munro. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by Hellen Frank against Samuel Mandel and others. From a judgment overruling a demurrer to the complaint, defendants appeal</p>

Action by the Farmers’ National Bank of Malone against the St. Regis Paper Company. From an interlocutory judgment entered on an order sustaining a demurrer to the third and separate defense of the answer, and directing judgment for plaintiff, defendant appeals.

<p>1. Highways — Barriers—Negligence—Question for Jury.</p> <p>Whether a town was negligent in failing to place a barrier along the edge of an embankment where the road was only seven feet wide was a question for the jury.</p> <p>2. Same — Contributory Negligence.</p> <p>Whether plaintiff, who was injured while driving along an icy road by reason of the absence of a barrier along the edge of the embankment, was guilty of contributory negligence, held, under the evidence, to be a question for the jury.</p> <p>8. Witnesses — Cross-Examination—Harmless Error.</p> <p>Where defendant’s witness in an action against a town for injuries caused by a defective highway had stated on direct examination that the highway was in bad condition at the particular point, it was not prejudicial error to permit him to state on cross-examination how long it had been in bad condition.</p> <p>Kellogg, J., dissenting.</p> <p>¶ 1. See Highways, vol. 25, Cent. Dig. f§ 486, 536.</p>

<p>Appeal from special term, Nassau county.</p> <p>Proceedings by William D. Guthrie against Peter Martin to compel a conveyance of land sold. From a judgment for plaintiff, defendant appeals.</p>

Action by Hanorah Kelly against Michael J. Kelly, as committee of the estate of Mary Ann Kelly, an incompetent. From an order requiring plaintiff to give security for costs, she appeals!

<p>Appeal from trial term, Tompkins county.</p> <p>Action by Mary Lochrain, executrix, substituted as plaintiff in place of Peter Lochrain, deceased, against the Autophone Company. From a judgment for plaintiff and from an order denying a new trial defendant appeals.</p> <p>This action was originally brought by Peter Lochrain against the defendant for damages claimed to have been caused by the defendant’s negligence. Since the trial the plaintiff has died, and his executrix has been substituted as plaintiff in the action. Defendant is a manufacturing corporation, manufacturing musical instruments in the city of Ithaca. Plaintiff’s intestate was a truckman or baggage expressman doing odd jobs around the said city in the line of his calling. For many years he transported between the defendant’s factory and the railroad freight office most, if not all, of the defendant’s light freight, and was paid therefor by the piece. About two years before the happening of the accident which is the cause of the action, he entered into a contract with the defendant whereby they agreed to pay him $200 a year for the transportation of their light freight from the factory to the freight office and from the freight office to the factory. Upon the 23d day of August, 1900, pursuant to his custom, he called at the defendant’s factory for freight. This freight was usually delivered to him from an upper window, from which it was lowered by means of a rope and pulley. Upon the day in question, in lowering the freight, the boxes were not securely fastened, so that they fell. In the fall the boxes did not strike the plaintiff’s intestate, but frightened his horse, causing the horse to run away, throwing the plaintiff out of the wagon, and causing the injuries for which suit is here brought The answer of the defendant denies the negligence of its servants, alleges contributory negligence on the part of the plaintiff, and alleges that the injury was caused by the negligence of a co-employé. Further facts appear in the opinion.</p>

E. Brown Baker and another presented to the court of claims, a claim against the state for damages alleged to háve arisen out of a breach of a contract in which they had undertaken to do certain specified work in enlarging the Erie Canal.

In the matter of the estate of Charles Miller, deceased. From a decree of the surrogate (75 N. Y. Supp. 929) fixing a tax on 2,000 shares of stock mentioned in the second clause of the decedent’s will, Gertrude B. Miller, the claimant, appeals.

<p>1. Deed — Highway as Boundary — Title to Fee op Road.</p> <p>A deed of land described as on tbe easterly side of the highway, beginning at a locust stake driven in the ground, thence along said highway a certain distance, thence by courses and distances, and returning a specified number of feet to the highway aforesaid to the point of beginning, and likewise a deed of land described as on the north side of the highway, beginning at a locust stake, and running along the-northerly side of the highway a certain distance, and thence by courses and distances, returning a certain number of feet to the place of beginning, excludes the highway from the land granted.</p> <p>2. Same — Evidence.</p> <p>It is evidence that a deed of land bounded on a highway and described by courses and distances excludes the highway, that it contains the amount it purports to convey without including the highway.</p> <p>3. Railboad in Highway — Rights op Abuttek.</p> <p>An abutter on a highway, owning no part of the fee thereof, cannot complain of the construction of a railroad therein under lawful authority.</p>

<p>1. Stenographer — Employment —Compensation—Adjournments.</p> <p>Plaintiff, employed as a stenographer by defendant to report his trial before the police commissioner, having attended, at the instance and for the benefit of defendant, on occasions when the proceeding was adjourned without his then being called on to take any testimony, is entitled to recover the reasonable value of his services in so attending.</p>

<p>Appeal from special term.</p> <p>Action by Ippolisto Castelli against Henry J. Trahan and others. Judgment for plaintiff, and defendants appeal.</p>

Action by the New Hartford Canning Company against Isaac Buli-fant and another. From an order modifying an original order granting a temporary injunction, defendants appeal.

<p>Appeal from special term.</p> <p>Action by James E. Corcoran against the New York, New Haven & Hartford Railroad Company. “Judgment dismissing complaint, and plaintiff appeals.</p>

Action by Barbara Scheir, as administratrix of the estate of Joseph Scheir, deceased, against William C. A. Quirin. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>. 1. Chattel Mortgages — “Unsafe Clause” — Eights of Mortgagee — Bad Faith — Evidence—Replevin.</p> <p>Plaintiff executed a mortgage to defendant on a stock of groceries, providing that defendant might take possession and sell the property at any time he deemed the security unsafe. Plaintiff, after giving the mortgage, proceeded to sell the groceries at retail at the rate of $10 to $15 a day for nearly two months, without paying any of the proceeds on the debt, whereupon defendant took possession of the property. Held,, that such evidence was insufficient to show that defendant acted in bad faith, ■and did not entitle plaintiff to recover the property in replevin.</p>

Action by Frank M. Bonta against Francis W. Gridley and another. Judgment overruling defendants’ demurrer to the complaint, and they appeal. The defendants demurred to the plaintiff’s complaint herein upon the ground that it did not state facts sufficient to constitute a cause of action, and from the judgment overruling such demurrer this appeal is brought.

<p>Action by one Mackey against the Mexican Central Railway Company.</p>

Action by Evelyn G. White against the town of Cazenovia. From a judgment for plaintiff, entered on a verdict, and from an. order denying a motion for new trial on the minutes, defendant appeals.

Action for partition by John Lewis Putnam and another against John R. Putnam and others. From a judgment entered after trial, dismissing the complaint upon the merits, plaintiffs appeal.

<p>Appeal from trial term, Alleghany county.</p> <p>Action by Orville O. Amsden against William C. Dunham, im-pleaded with another. From a judgment entered on a referee’s report in favor of plaintiff, defendant Dunham appeals.</p>

Action by Frederick and Julia Wells, as administrators, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals. This action was commenced on the 23d day of November, 1901, by the plaintiffs, as administrators, to recover damages for the alleged negligent ■killing of their daughter, Catharine .Wells, an infant 8% years of age on the. 16th day of the same month.

Action by Norman Eckert, as administrator of the estate of Charles Eckert, deceased, against the town of Shawangunk. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from special term.</p> <p>Action for mandamus by the people, on the relation of William Murray, against Gustav Lindenthal, as bridge commissioner, and others. From the denial of a motion for the issuance of the writ, relator appeals.</p>

Action by the Rochester & Eastern Rapid Railway Company against the Monroe County Electric Belt Dine Company. From an order vacating a temporary injunction restraining defendant from constructing and operating a street railroad on Canal or Mill street, in the city of Fairport, plaintiff appeals.

<p>Appeal from special term, New York county.</p> <p>Action by Charles Francis Jones against George Harry Fester. From an order of reference, defendant appeals.</p>

<p>1. Will Contest — Trial—Submission to Jury.</p> <p>Code Civ. Proc. § 2653a, providing that the issue as to the validity of a will shall he tried by a jury, does not require the submission of every such case to the jury, but the question whether the evidence is sufficient to take a case to the jury is one of law for the court. •</p> <p>2. Same — Direction of Verdict.</p> <p>A verdict cannot be directed in favor of one party, no matter how great the preponderance of evidence in his favor, if the evidence of the opposite party presents an issue of fact on which the jury could properly find a verdict.</p> <p>8 Same — Mental Incapacity — Evidence—Sufficiency</p> <p>In a proceeding to contest a will under Code Civ. Proc. § 2653a, placing the burden of proof on contestant to show the invalidity of the will, evidence considered, and held insufficient to take the case to the jury on the issue of testator’s mental incapacity.</p>

Action by Nicholas Richer against James C. Fargo, as president of the Merchants Dispatch Transportation Company. From a judgment for plaintiff entered upon a verdict, and from an order denying a new trial on the minutes, defendant appeals.

Moore against the Monumental Mutual Life Insurance Company. From an order denying a motion of defendant to set aside an alleged service of summons, defendant appeals.

Action by George H. Kratt against Franklin W. Hopkins and another. From a judgment dismissing the complaint at close of plaintiff’s case, plaintiff appeals. The action was brought to recover a balance alleged to be due the plaintiff from the defendants, who are stockbrokers, after the sale by them of plaintiff’s stocks.

Action by Catharine Schilling agáinst the Union Railway Company of New York.City. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Certiorari by the. people, on the relation of the Dives-Pelican Mining Company, against Thomas E. Feitner and others, as commissioners of taxes and assessments. From an order dismissing: the writ, relator appeals.

Action by George W. Quackenboss against the Globe & Rutgers Fire Insurance Company. Judgment dismissing the complaint at the close of plaintiff’s case, and plaintiff appeals.

Application by William P. Knowles, a taxpayer, against Bernard F. Conklin and others, to restrain the issuance of a warrant for the salary of defendant Conklin, due to him as a police sergeant of the - city of New York. From an order denying plaintiff’s motion for injunction, he appeals.

Action by Charlotte Muller, by Ingle Carpenter, her guardian ad litem, against Harry Bammann, by John Frederick Bammann, his guardian ad litem. From an order denying defendant’s motion to compel plaintiff to furnish security for costs, and permitting plaintiff to prosecute her action as a poor person, and assigning attorneys to prosecute the action, defendant appeals.

Application by the board of public improvement of the city of New York for the acquisition of property for a public purpose. From an order taxing the expenses of Alfred M. Downes, as clerk of the commissioners of estimate, appointed by them, the city of New York appeals.

Certiorari, on relation of- Joseph Albert, against Joseph Pool as 'city magistrate. From an order sustaining the writ and ordering that relator be discharged from custody, respondent, appeals.

Action by Joseph Weibler against Ida C. Cook and another. From a judgment for plaintiff, and an order denying a motion for new trial, defendants appeal.

Application by the corporation counsel of the city of New York under Laws 1892, c. 339, for the appointment of commissioners of assessment' 'From an order granting the application Frederick W. Sanders and others, as owners of abutting property, appeal.

: Mandamus by the people, on the. relation of Patrick J. Brennan, against Thomas Sturgis, commissioner of the.fire department of the city óf New York. Order/granting the writ, and defendant .appeals.

<p>1. Fire Department — Members—Absence without Leave — Resignation.</p> <p>Under the express provisions of the Revised Charter, § 735 (Laws 1901, e. 466), the commissioner of the fire department of the city of New York is authorized to treat the unexplained absence without leave of a member of the uniformed force for five days as a resignation, and to accept it as such.</p> <p>3. Same — Reinstatement—Mandamus.</p> <p>A member of the uniformed force of the fire department of the city of New York, who has resigned and whose resignation has been accepted by the commissioner, is not entitled to mandamus requiring his reinstatement.</p> <p>¶ 2. See Mandamus, vol. 33, Cent. Dig. § 167.</p>

Action by Morris Perlberger against William F. Grell, as sheriff of New York. county. From a judgment for plaintiff,. and from an order denying a new trial on the minutes, defendant appeals.

Action by Thomas A. Healy against Janet T. Malcolm, as executrix of James F. Malcolm, deceased. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Wolf Cohen against Lewis Krulewitch. From an order granting a new trial after verdict for plaintiff at trial term, plaintiff appeals.</p>

<p>1. Interpleader — Motions—Affidavits.</p> <p>On the hearing of a motion for an Interpleader, it is error to receive and consider affidavits which have not been served on the opposing parties, and which they have had no opportunity to answer.</p> <p>2. Same.</p> <p>Where a temporary receiver in bankruptcy was ordered by the United States district court to deliver a certain insurance policy to plaintiff, such receiver was not entitled to an interpleader in an action by plaintiff to recover the policy, on the ground that it was claimed by another receiver, appointed in a judgment creditor’s action in a state court.</p>

Action by Francis J. Rourke against the city of New York. From a judgment on a verdict for plaintiff, and from, an order denying a motion for new trial, defendant appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Bridget M. Kelly against Alice M. Theiss and another. From a judgment in favor of defendants, and from an order dismissing the complaint, plaintiff appeals. Appeal from the order dismissed.</p>

M andamus by the people, on the relation of David Havron, against William Dalton, as commissioner of water supply of the city of New York, and another. P'rom an order dismissing an alternative writ, relator appeals.

Application of Denis Coleman for leave to issue execution and sell certain real estate. Prom an order denying the application, he appeals.

Cooke, against Perez M. Stewart, superintendent of buildings for the borough of Manhattan of the city of New York. Order denying motion for the writ, and relator appeals.

<p>1, De Facto Corporation — Proof—Report—Failure to File — Directors’ Liability.</p> <p>Proof that a corporation, which had not become a corporation de jure by reason of its failure to file its articles in the office of the county clerk, had filed its articles in the office of the secretary of state, and had called a meeting prior to January 1, 1900, at which officers were elected and a resolution passed authorizing a contract, which was not consummated prior to January 1, 1900, was insufficient to establish the existence of a corporation de facto prior to that date, so as to render its directors personally liable for debts for failure to file an annual report in January, 1900.</p>

<p>Appeal from municipal court, borough of Brooklyn.</p> <p>Action by Francis F. Montenes against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Henry W. Hardon, as assignor, etc., of Thomas W. Robertson, against William P. Dixon and another. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Jennie T. B. Becker, as executrix of James Brady, deceased, against the city of New York. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Contracts — Construction.</p> <p>An agreement as to the distribution of an estate being subject to two constructions, one making it valid, and the other invalid, as suspending the power of alienation, the former will be adopted.</p> <p>¶ 1. See Contracts, vol. 11, Cent. Dig. § 734.</p>

Action by Benjamin P. Benjamin against the city of New York. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Frank Muller against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from special term, New York county.</p> <p>Action by J. Henry Lane and others against Herman Bochlowitz. From an order changing the place of trial, plaintiffs appeal.</p>

Action by David Jenkins against Henrietta L. Baker, individually and as executrix of the will of Emeline Jenkins, deceased, and others. From a judgment dismissing the complaint, and from an order denying a new trial (72 N. Y. Supp. 546), plaintiff appeals.

Action by Rosalie M. Steele and others against the R. M. Gilmonr Manufacturing Company. From an order denying a motion to vacate a writ of attachment, defendant appeals.

Action by Clarence De Witt Rogers against the board of supervisors of Westchester county and others to restrain the payment of bills for publication of the abstract of town and county accounts. From an order enjoining such payment, certain newspapers of the ..county appeal.

Proceedings by the Blumenberg Press against the Mutual Mercantile Agency. From the judgment, both parties appeal. The action is brought, under section 1737 of the Code of Civil Procedure, to -enforce a lien of $9,738.35 on linotype slugs, paper, etc., made by plaintiff for the defendant under a contract dated November 3, 1899; the defendant having defaulted in payments for the work performed.

<p>1. Guardians Ad Litem — Qualifications.</p> <p>A clerk of an attorney is “connected- in business” with him, within Gen. Rules Prac. 49, providing that no person shall be appointed guardian ad litem unless he is not connected in business with the attorney of the adverse party.</p> <p>2. Same,</p> <p>Gen. Rules Prac. 49, providing that no person shall be appointed guardian ad litem unless he is not connected in business with the attorney Of the adverse party, applies where the question whether the interests of the infants and the other party are or are not adverse is involved in the action.</p> <p>9. Partition Sale — Marketable Title.</p> <p>The purchaser at partition sale under a judgment in an action, where the interests of life tenants and infants, as contingent remaindermen, are likely to conflict, and the infants are necessary parties, may refuse tc complete the purchase on the ground that the title is not marketable; the infants being represented, in violation of Gen. Rules Prac. 49, by guardians ad litem connected in business with the attorneys of the life ten* ants.</p>

<p>1. Wills — Devise to Attorney — Undue Influence — Evidence.</p> <p>An inebriate executed a will, devising to proponent, who was his attorney, one-half of his estate. Proponent had rendered him little service except to.pay him small sums daily from testator’s money, in his hands, which was largely used for liquor. On application for probate,' the only evidence was thát of proponent’s clerk, who was a witness -to the will, and the other witness, who was testator’s tailor. Both witnesses testified to capacity, but the clothier testified that during the execution testator did not say over 10 words, and all that he said was “Yes” to questions asked by proponent, and the request to the witnesses to sign. There- was no evidence that testator had ever intended to make a will, or had given any directions with regard thereto. E'eld, that the evidence was insufficient to sustain the burden of proof which was on proponent to show fliat the will was testator’s free,' intelligent expression of his- wishes, and probate was therefore properly denied.</p>

Action by Edward Jackson against the Union Railway Company of New York City. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Application by Constant Webster and others, as commissioners of highways of the town of Chatham, against Philip Purcell, as commissioner of highways of the town of Kinderhook, for an order requiring respondent to join in the repairing of a certain bridge. From an order granting the application, respondent appeals.

<p>Appeal from court of general sessions, New York county.</p> <p>John M. Swasey was convicted of abduction, and he appeals.</p>

<p>Action by Lancelot M. Berkeley against Andrew J. Kennedy and others.</p>

<p>Action by William G. Brown against the Utica Suburban Railway Company.</p>

<p>Action by Sarah J. Bridenbecker against Eliza Bridenbecker, substituted, etc.</p>

<p>In the judicial settlement of the accounts of George Cole and others.</p>

<p>Action by Grace A. Cummings against Adelbert D. Tinker, impleaded with others. From a judgment for plaintiff, defendant Tinker appeals.</p>

<p>Action by Grace A. Cummings against Adal-bert D. Tinker, impleaded, etc.</p>

<p>Action by Thomas F. Corbett, against the Sweets Steel Company.</p>

<p>Action by the Corning Glass Works against the Coming Cut Glass Company.</p>

<p>Action by Mary E. Downer, as etc., against Louisa D. Garter, impleaded, etc.</p>

<p>Suit by the Drake Hardware Company against the Wrought Iron Range Company. From an order restraining defendant from doing certain things, it appeals.</p>

<p>Motion by the commissioners of estimate and assessment for an order taxing fees and costs in a proceeding by the city of New York to acquire title to East 182d street. From a judgment in favor of petitioners, the city appeals.</p>

Action by Abbott D. Granger against Henry B. Lockwood and others From a judgment for plaintiff, entered on the report of the referee, defendants appeal.

<p>In the matter of the judicial accounting of Ashley N. Hogan.</p>

<p>Submission of controversy between William B. Isham and another, as executors of Mary J. Walker, deceased, and the New York Association for Improving the Condition of the Poor and others.</p>

<p>In the matter of the application of Walter H. Millard to lay out a highway in the town of West Turin, and to assess damages therefor.</p>

<p>In the matter of the judicial settlement of the account of William K. Murray, as executor, etc., of Michael Welsh, deceased.</p>

In the matter of the application of the Oneonta, Cooperstown & Richfield Springs Railway Company to determine whether a street surface railroad ought to be constructed and operated upon Lake and Church streets, being a continuous street or highway in the village of Richfield Springs, county of Otsego, and state of New York.

<p>Mandamus by the people, on the relation of Hugh Dolan against Perez M. Stewart, as superintendent of buildings, to require respondent to reinstate relator as inspector of buildings. From an order granting the writ, respondent appeals.</p>

<p>Proceedings by the people of the state of New York against Louis Windholz and another.</p>

<p>Proceedings by the people of the state of New York, on the relation of James H. Castle, against Hugh P. Owens, deputy sheriff and jailer.</p>

<p>Certiorari by the people, on the relation of Edward M. Grout, as comptroller, against William E. Stillings and others, as commissioners, and Alexander D. "Duff and others, claimants, to review an award of damages to lands by reason of a change of grade of the street on which they front. Award confirmed.</p>

Certiorari by the people, on the relation of Edward M. Grout, as comptroller of the city of New York, against William E. Stillings and others, as commissioners, etc., and William H. Mountfort, claimant, to review an award of damages to lands by reason of a change of grade of a street. Award confirmed.

<p>Proceedings by the people of the state of New York, upon the relation of the New York Central & Hudson River Railroad Company, against Erastus C. Knight, as comptroller of the state of New York.</p>

Action for divorce by Frederica M. Poillon against John J. H. Poillon. From an order denying a motion to resettle an order for a rehearing, defendant appeals.

<p>Action by Jane Remsen and another against Rosalie Hyams, individually and as executrix of the last will of Joel E. Hyams, deceased. From an ’order vacating and setting aside certain findings, and a judgment entered thereon in favor of plaintiffs, and permitting plaintiffs to serve an amended complaint, defendant appeals.</p>

<p>Action by Benjamin C. Riley against the village of Ballston Spa.</p>

<p>Action by Alvin Richtmyer against Marquis A. Lasher and others.</p>

<p>Action by Samuel Smith and others against Christopher C. Firth and others.</p>

<p>Action by Edward P. Smith against Robert R. Converse.</p>

Motion by the commissioners of estimate and assessment for an order taxing fees and costs in a proceeding by the city of New York to acquire title to Spencer Place. From a judgment in favor of petitioners, the city appeals.

<p>Action by S. Foster Sprague against the city of New York.</p>

<p>Proceedings to open Townsend avenue in New York Gity. Appeal from order denying motion to confirm report of commissioners of estimate and assessment.</p>

<p>Action by Celestia H Strait against Walter E. Lindsay and others.</p>

<p>Action by Edward P. Stimson against Harriet E. Cowles.</p>

Action by Isidore Weil and another against August F. Gallun and others. From an order denying a motion to set aside levies of attachment, defendants appeal.

<p>Action by Henry Ei Wilke and John B. Roesch against David Bennett.</p>