Volume 79 — New York Appellate Division Reports

<p>Covenant to build only dwelling houses — it is not violated by a flat or tenement— covenant not to build within twenty feet of the street line — when not enforced by injunction — burden of proof that the conditions have changed.</p> <p>The erection of a flat or tenement house is not a violation of a covenant contained in a deed providing that only dwelling houses should be built upon the premises.</p> <p>The violation of a covenant contained in a deed executed in 1858, “ that any house or erection that shall be placed upon said premises shall be set or placed back at least twenty feet from the line of the street on which the same shall be placed, and so as to leave a yard of at least twenty feet between any such house or erection and either and each of said avenues,” may be enjoined if a departure therefrom would result in the erection of houses on lines out of harmony with the general character of the neighborhood; if, on the other hand, an enforcement of the covenant would involve a departure, with reference to the building lines, from the general location of the surrounding buildings erected since the covenant was executed and would deprive the owner of an opportunity to improve his land as the adjacent lands have been improved, a court of equity will not grant injunctive relief.</p> <p>In an action brought to enjoin the violation of such a covenant, the burden of showing that the character of the neighborhood has so changed that it would be inequitable to grant such relief is upon the owner of the property affected by the covenant.</p>

<p>Negligence—injury from falling into a trench dug near a sidewalk—proof that it was dug by an independent contractor—proof that it was within the street line — submission to the jury of the question whether the injwred man was free from contributory negligence.</p> <p>Where, in the process of erecting a building upon premises abutting upon a public street, an excavation ten feet deep, fifty feet long and several feet wide is dug, which excavation encroaches or at least abuts upon the part of the side- ' walk used by pedestrians, the fact that the excavating was done by an independent contractor will not relieve the owner of the premises from liability to a person who, while walking along the sidewalk in the daytime, without negligence on his part, falls into the excavation, which has been left unguarded and unprotected except by a barrel at each end.</p> <p>What evidence is sufficient to establish poñma facie that the excavation was ■ within the street line, although such line was not shown by survey or deed, considered.</p> <p>What evidence is sufficient to authorize the submission to the j ury of the question whether the pedestrian who fell into the hole was free from contributory • negligence, considered.</p>

Appeal by the plaintiff, James Willis, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 8th day of February, •1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the complaint.

Appeal by the plaintiff, Morris Grossman, from a judgment of the Municipal Court of the city of New York in favor of the . defendants, entered on the 26th day of May,. 1902, dismissing the complaint at the close of the plaintiff’s evidence.

<p>Appeal by the defendant, Frank W. Loomis, from an order of the Supreme Court, made at the Putnam Special Term and entered in the office of the clerk of the county of Putnam on the 22d day of September, 1902, striking out the amended answer of the defendant.</p>

<p>Information that a crime has teen committed — a statement that certain persons • committed the crime of misdemeanor in that, at a time and place stated, they violated. the Liquor Tax Law, is insufficient.</p> <p>Section 148 of the Code of Criminal Procedure, which provides, “When an information is laid before a magistrate, of the commission of a crime, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions in writing, and cause them to be subscribed by the parties making them,” and section 149 of that Code, which provides, “The depositions must set forth the facts stated by the prosecutor and his witnesses, tending to establish the commission of the crime and the guilt of the defendant," contemplate that the information shall set forth that a definite crime has been committed, not with all the particularity of an indictment, but with- sufficient definiteness to inform the magistrate that some particular offense against the law is charged.</p> <p>An information which alleges that certain persons “ did commit the crime of misdemeanor in that they did, at the time and place above named, unlawfully, wilfully and knowingly violate the Liquor Tax Law of the State of New York,” is fatally defective.</p>

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rockland on the 23d day of November, 1901, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12th day of November, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Edward Bessenger, 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 15th day of April, 1902, upon an order entered in said clerk’s office on the 18th day of March, 1902, dismissing the complaint and setting aside the verdict of a jury in favor of the plaintiff for $1,500, and also from the said order upon which such judgment was entered.</p>

Appeal by the plaintiff, Thomas J. Cleary, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of November, 1901, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Alice D. Sherman, from a judgment of the Municipal Court of city of New York, borough of Queens, in favor of the defendant, entered on the 18th day of June, 1902, upon the decision of the court.

<p>Appeal by the defendant, the New York Times Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 14th day of October, 1902, denying the defendant’s motion for a bill of particulars before answer.</p>

Appeal by the defendant, Benjamin E. Valentine, 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 16th day of October, 1902, permitting the plaintiff to serve an amended complaint.

Appeal,, by the defendant, Gustav Lindenthal, as commissioner of bridges of the city of New York, from an ordei- of the Supreme Court, made at the Queens County Spécial Term and entered in the office of the clerk of the county of Queens on the 9th day of July, 1902, directing the issuance of a peremptory writ of mandamus.

Appeal by the defendant, The Hills Brothers Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 25th day of March, 1902, upon the verdict of a jury for $5,000, 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>Amendment of a complaint to compel an accounting by an executor and trustee— terms imposed — affidavit referring to a complaint alleging facts on information and belief.</p> <p>"Where an action is brought in the Supreme Court to compel an accounting by an executor or trustee, the court may, under section 733 of the Code of Civil Procedure, permit the plaintiff to amend her complaint by alleging facts which, under a recent decision of the Court of Appeals, she considers necessary to insure the Supreme Court’s retaining jurisdiction of the action, and to bring in new parties who appear to be necessary to a determination of the amended cause of action.</p> <p>In such a case the Appellate Division considered that the Special Term should, as a condition of granting the amendment, require the payment by the plaintiff of the costs of the action to the date of the order and the service of the amended complaint within twenty days.</p> <p>The fact that the moving affidavit does not set forth the facts on which the motion is based, but refers to the proposed complaint where the facts are alleged on information and belief, without stating the sources of the plaintiff's information or the grounds of her belief, does not affect the power of the court to grant the motion, as no substantial rights of the defendant are involved in the granting of the motion.</p>

Appeal by the plaintiff, Charles Frazier, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of September, 1902, vacating and setting aside a referee’s sale in foreclosure and annuling and canceling the referee’s deed and ordering a resale.

<p>Appeal by Sarah Hoagland French from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 31st day of December, 1901, confirming the report of a referee appointed in the proceeding, overruling the exceptions filed by the appellant to the account of Isaac A. Hopper, as executor, etc., of Isaac E. Hoagland, deceased, and judicially settling said account.</p>

Appeal by the defendant, Edward M. Grout, comptroller of the city of Hew York, 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 Richmond on the 15th day of July, 1902, granting a peremptory writ of mandamus.

<p>Negligence—the duty of a master to light a place where dangerous work is being dons at night—it is not performed by merely furnishing the materials therefor — evidence as to the manner in which such work is commonly performed.</p> <p>Where work, the performance of which is attended with danger to the workmen employed in doing the same, is required to he done at night, it is the duty of the master to supply the lights necessary to enable the workmen to perform their duty without other danger than such as is incident to the work.</p> <p>This duty is an active one and it is not sufficient for the master to place materials for electric lights where they may he used at the command of the foreman.</p> <p>While the master is not hound to perform the work in the manner in which other people commonly perform it, a workman who has sustained personal injuries in consequence of the alleged failure of the master to properly light the place in which the work was to he performed may, in an action against the master to recover for such injuries, he permitted to prove the ordinary method of doing work of the character in question and that the master was not doing the work in the approved way, as it is proper for the jury to know the facts in order that it may determine whether the work was being carried on with a proper regard for the safety of the men employed.</p>

<p>Legacy payable on the death of the testator’s widow — when it is recoverable from, her heirs at law and ne<et of kin.</p> <p>A testator bequeathed a legacy to a church payable at the death of his widow or within one year thereafter. The widow, who was the. sole executrix of the will, received sufficient property from the testator’s estate to pay the legacy. She died intestate and her estate was distributed among her creditors, heirs at law and next of kin. The legacy bequeathed to the church was not paid.</p> <p>Held, that the church was entitled, either under section 1837 of the Code of Civil Procedure, or irrespective of that statute, to maintain an action against the heirs at law and next of kin of the widow to recover the amount of the legacy.</p>

<p>Appeal by the defendants, Eugene W. Mente and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of February, 1902, upon the verdict of a jury for $2,549.12, and also from an order entered in said clerk’s office on the 26th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Henry S. Clarke, as mayor of the city of Hew Rochelle and others, from an order of the Supreme Court, made át the Kings County Special Term and entered in the office of the clerk of the' county of Westchester on the 30th day of September, 1902, granting a peremptory writ of mandamus directing the payment of the relator’s claim against the city of Hew Rochelle.

<p>Appeal by the defendants, The Board of Police Oommissioners of the City of Yonkers, Frederick H. Woodruff and others, from a final 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 15th day of May, 1902, directing the issuance of a peremptory writ of mandamus, and also from an order entered in said clerk’s office denying the defendants’ motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal an order bearing date the 15th day of February, 1902, and entered in the office of the clerk of the county of Westchester, denying a motion made by the defendants, to dismiss an alternative writ of mandamus theretofore issued in the proceeding.</p>

<p>Appeals by Joseph W. Kay, the relator in the first above-entitled proceeding, and by Edward A: Dubey, the relator in the second above-entitled proceeding from orders 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 14th day of July, 1902,' and on the 14th day of August, 1902, respectively, denying the relator’s motion in each proceeding for a peremptory writ of mandamus.</p>

Appeal by Edward Mitchell and Grosvenor S. Hubbard, as executors, etc., of Benjamin D. Silliman, deceased, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 10th day of June, 1902, denying an application to modify a decree theretofore entered in the proceeding fixing the transfer tax upon the estate of the said testator.

<p>Appeal by the defendant, The Kensico Cemetery, 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 29th day of March, 1902, permitting the plaintiff to serve a further bill of particulars and to examine and copy defendant’s xeceipts.</p>

<p>Assignment by a contractor of money earned under the contract—it has priority over liens subsequently filed — effect of a failure to serve a notice of appeal upon some of the parties over whom a priority of right is claimed, but was not given by the trial court — the statutory time to appeal cannot be extended — effect of an order allowing a notice of appeal to be filed nunc pro tunc.</p> <p>Moneys earned or to become due under a contract may be assigned, and, in the absence of fraud or anything to the contrary contained in the contract, the assignee acquires a good title to such money and subsequent lienors can reach only the interest remaining in the contractor. «</p> <p>Where, pursuant to the terms of a building contract, the owner issues to the contractor each month a certificate for eighty-five per cent of the value of the work done by him during the month, an assignee of such certificates obtains, as against subsequent lienors, a good title to the moneys represented thereby, and the refusal of the owner to pay such certificates confers no additional rights upon the subsequent lienors.</p> <p>In an action to foreclose a mechanic’s lien a judgment was entered erroneously determining that a claim which was entitled to priority over all the other claims was ninth in order of preference. The holder of such claim took an appeal from the judgment, but neglected to perfect it as to certain of the parties who had been erroneously given priority.</p> <p>Meld,, that the court could not reverse or modify the judgment without depriving the parties, as to whom the appeal had not been perfected, of their legal rights, or without impairing those of the other parties;</p> <p>That, consequently, the court would apply the rule that when one of two innocent parties must suffer the one responsible for the situation must bear the loss, and would affirm the judgment;</p> <p>That the fact that all the parties to the action were before the court, on an appeal duly perfected by the owner of the premises, did not give the court jurisdiction to reverse the judgment as between the parties interested in the question as to the priority of the various claims.</p> <p>The time fixed by statute for taking an appeal from a judgment cannot be extended by the court.</p> <p>An order made under section 1303 of the_ Code of Civil Procedure, authorizing service of a notice of appeal upon the clerk of the court nunc pro tunc, does not render the appeal effective as to parties who have not been served with the notice of appeal within the time fixed by statute.</p>

Appeal by the defendants, George I. Hull, Jr., and another, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered on the 2d day of October, 1902, after a trial before the court without a jury.

<p>Action for breach of warranty on article sold—personal injury caused by its explosion as an element of damages — amendment of the complaint, by alleging negligence.</p> <p>A person who purchases a package of magnesium powder from the sales agent of the manufacturer of such powder in reliance upon a warranty that it is entirely free from explosive compounds and is safe for use in any of the ordinary flash lamps, may, in the’ event of his sustaining personal injuries in consequence of the explosion of the powder while he is using it in an ordinary flash lamp, recover damages for such personal injuries in an action brought for a breach of the warranty.</p> <p>Where, however, in an action brought to recover damages for the breach of the ' warranty, the trial court erroneously rules that the plaintiff cannot recover therein any damages for his personal injuries, and he thereupon obtains an order permitting him to amend his complaint by alleging therein, in addition to the breach of the warranty, negligence in the manufacture and sale of the powder under the alleged false representations as to its non-explosive character, such an order will not be reversed on the ground that the original complaint did not state a cause of action, or on the ground that the amendment converted the cause of action on contract into one in tort.</p>

<p>Appeal by the defendant, Patrick J. Duffy, 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 15th day of February, 1902, upon the report of a referee.</p>

Appeal by the defendant, Dora Sullivan, 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 a motion to vacate an order for the examination of the defendant before trial.

Appeal by the defendant, The New York 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 Queens on the 10th day of January, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 11th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Reese Carpenter, 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 17th day of April, 1902, granting the plaintiff’s motion for leave to amend the Complaint upon condition that he should pay to the defendant the sum of fifty dollars.</p>

<p>Discharge of an habitual drunkard from the care of her committee —a denial of an application for a supersedeas under section 3343 is not a bwr to a proceeding by habeas corpus — release on probation.</p> <p>An adjudication that an habitual drunkard was not cured of her habit of overindulgence in intoxicating liquors, made in proceedings instituted under section 3343 of the Code of Civil Procedure for a supersedeas of her committee, is not conclusive in a habeas corpus proceeding instituted by the habitual drunkard, about a month after the termination of the supersedeas proceedings, to procure her release from the custody of her committee upon the ground that occurrences, which have happened since the adjudication in the supersedeas proceeding, demonstrated her restoration to competency.</p> <p>Semble, that if the supersedeas proceeding had been pending at the time of the return to the writ of habeas corpus, the proper course would have been to dismiss the writ.</p> <p>The objection that the judge before whom the writ of habeas corpus was returnable had no power to discharge the petitioner upon probation is not available to the committee, even if it would have been available to the petitioner.</p>

Appeal by the Yorlcville Bank from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 3d day of June, 1902, denying the motion of the said Yorkville Bank to vacate and set aside an.order entered in said clerk’s office on the 7th day of February, 1902, appointing William B. Sutherland receiver of the defendant, The Henry Zeltner Brewing Company, and also denying appellant’s motion for…

Motion by the defendant, Marietta Leggat, as executrix, etc., of ¡Richard J. Leggat, deceased, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by the defendants, William D. Stratton and others, as water commissioners of and constituting the board of water commissioners of the city of Middletown, in the State of New York,- and another, from an order of the Supreme Court, made at the Orange Special Term and entered in the ofiice of the clerk of the county of Orange on the 7th day of August, 1902, directing the issuance of a peremptory writ of mandamus requiring- said board of water commissioners to annul the appointment of George R. Wengenroth, and to appoint the relator, Evander M. Hamilton, as clerk of said board.</p>

<p>Appeal by the defendants, John H. Burch and others, forming the common council of the city of Middletown, and others, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 15th day of September, 1902, directing the issuance of a peremptory writ of mandamus requiring the appointment of the relator as superintendent of streets in said city.</p>

Appeal by the defendants, Edwin T. Eggleston and Charles W. Leavitt, Jr., from an order of the Supreme Court, made at the Westchester Special Term, bearing date the 19th day of April, 1902, and entered in the office of the clerk of the county of Westchester, requiring the treasurer of said county to pay over certain surplus moneys to the city chamberlain of the city of New York subject to the jurisdiction of the Surrogate’s Court of New York county.

<p> Order of severance of an action by a creditor of an assured on a policy onhis debtor’s life, in which his children intervene denying the indebtedness to the extent claimed, and asking for a reformation of the policy—each pa/rty is entitled to be heard on all the issues. </p> <p>Theodore 3?. Reed, who claimed to he a creditor of Benjamin F. Reed, brought an action against the Provident Savings Life Assurance Society of New York to recover upon a policy of insurance issued to him upon the life of Benjamin F. Reed. The insurance company interposed an answer denying that the plaintiff had any insurable interest in the life of Benjamin F. Reed. The children of Benjamin F. Reed were made parties defendant on their own motion and interposed an answer denying that the plaintiff was a creditor to the extent claimed by him and alleging that they were the. real beneficiaries tinder the policy and praying for a reformation thereof and an injunction restraining the plaintiff from collecting and the insurance company from paying to him the amount of the policy.</p> <p>Upon the trial, the court, against the opposition of the Reed children, withdrew from the consideration of the jury the issues arising between the plaintiff and the Reed children-, and directed that such issues, which were equitable in their nature, should be tried before another judge without a jury. This order was made upon the court’s own motion and not upon a motion made on notice as is prescribed by the Code of Civil Procedure.</p> <p>Thereafter an order was entered nunc pro tunc reciting that the previous order was inadvertently drawn as “severing issues” instead of “severing the action” and amending the previous order accordingly.</p> <p>The trial of the issues arising between the plaintiff and the insurance company and of the issues arising between the plaintiff and the Reed children each resulted in a judgment in favor of the plaintiff.</p> <p>Upon an appeal by the insurance company and by the Reed children from such judgments, with notice of an intention to bring up for review the order severing the issues and also the order severing the action, it was Held, that the severance of the action did not nullify the order making the Reed children parties defendant;</p> <p>That all of the parties were entitled to participate in the trial of any and all of the issues raised by the pleadings, and that, as both the insurance company and the Reed children had been deprived of this right by the order of severance, there had been a mistrial of both issues which required a reversal of the judgment; that the order of severance should also be reversed.</p>

<p>Appeal by the plaintiffs, William E. T. Smith and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 10th day of October, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Suffolk Trial Term.</p>

<p>Will—a devise of “ all my land and meadow on the south side of this island * * *■ being esteward of Conecticut ” river conveys the land under the river— it is in the nature of a residuary .devise — consideration given to a construction thereof acquiesced in by members of the testator's family.</p> <p>Colonel William Smith, who had, by a patent dated October 9, 1693, been granted a large tract of land on Long Island extending on both sides of a navigable stream called thé East Connecticut river, died about 1704, leaving a will by which he divided the tract into three portions. He devised one of such portions, consisting of certain beach land, to his eldest son Henry and another of such portions, consisting of all the lands on the west side of said stream, to his daughters Jeane and Gloriana, and the remaining portion, which he described as “all my land and meadow on the south side of this island within my manor of St. Georges aforesd and being esteward of Conecticut or Sebomuck River,1’ to his younger sons William Henry and Charles Jeffrey. field, that the devise to the testator’s sons William Henry and Charles Jeffrey was in the nature of a residuary devise and that the phrase “being esteward of Conecticut ” river, used in such devise, was intended simply to exclude the lands devised to the testator’s daughters which would be otherwise included and was not intended to limit the devise to William Henry and Charles Jeffrey . to the lands lying eastward of the river;</p> <p>That the lands which passed to the testator’s daughters only extended- to the-, westerly bank of the river and that the land under the river passed to the testator’s sons William Henry and Charles Jeffrey;</p> <p>That the fact that this was the construction givén to the will'bv the members of the testator’s family,, while not controlling, was a circumstance entitled to-some weight in determining the true interpretation of the will.</p>

Appeal by the plaintiffs, Margaret B. Mott and another, from a judgment of the-Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 10th day of June, 1902, upon the decision of the court, rendered after a trial before the court without a jury at the Washington Trial Term, dismissing the complaint.

Appeal by the relator, the Metropolitan Street Eailway Company, from a final order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 15th day of July, 1902.

■ Appeal by the defendant, The Town of Berne, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 17th day of December, 1900, upon the verdict of a jury for $150, and. also from an order entered in said clerk’s office on the 15th day of January, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mason 2sT. Weed, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schuyler on the 31st day of January, 1902, upon the decision of the court, rendered after a trial at the Schuyler Special Term, dissolving an injunction theretofore granted in the action and dismissing the plaintiff's complaint.

Appeal by the defendant, the Fort Miller Pulp and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 25th day of July, 1902, upon the decision of the court rendered after a trial before the court without a jury at the Saratoga Trial Term. In 1882 one Nicholas Yandenburgh was the owner of certain property upon the west side of the Hudson river in the town of Northumberland.

<p>Appeal by the defendants, Horace Inman and Harry A. Inman, trading under the name and style of Inman Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 11th day of November, 1901, upon the decision of the court rendered after a trial at the Montgomery Special Term.</p> <p>The action is brought by the plaintiff against the defendants, for a breach of contract whereby the plaintiff was to serve the defendants for one year from the 26th day of June, 1900, for the sum of $3,600, payable in weekly installments. Upon the 15th day of September, 1900, the plaintiff was discharged by the defendants. After the year had expired he brought this action to recover the contract price for the year, over and above a small sum which had been paid thereon, and over and above such moneys as he was able to earn during that period. The court at Special Term directed' judgment for $3,148.07 and costs, From this judgment defendants appeal.</p>

<p>Appeal by the defendants, Newton J. Kellam 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 Schenectady on the 16th day of November, 1901, upon the verdict of a jury rendered by direction of the court after a trial at the Schenectady Trial Term, and also from an order entered in said clerk’s office on the 8th day of November, 1901, denying the defendants’ motion for a new trial made upon the minutes.</p> <p>The plaintiff is incorporated under the laws of the State of Illinois and doing business at Stirling in that State engaged in the manufacture of gasoline engines. The defendants are copartners doing business in the city of Schenectady in cutting and dressing stone. The F. R. Patch Manufacturing Company is a corporation of Rutland, Yt., which was furnishing to the defendants certain machinery for use in their business. At the request of the defendants the Patch Manufacturing Company negotiated with the plaintiff for the purchase of a thirty-five-horse power gasoline engine at the price of $950. During the negotiations the plaintiff sent to the Patch Manufacturing Company a circular which had Upon it a picture of a gasoline engine and certain words descriptive thereof,among which were the following: “ Safe,” “ simple,”' “ reliable,” “ no danger.” Upon said circular further appeared : “ More economical' than steam. More reliable than electricity. * * * Does not require an experienced man to set up and start or a licensed engineer to operate. Always ready for use. No attention required after starting. When stopped expense ceases.” Before the purchase was completed the Patch Manufacturing Company turned the matter over to the defendants to make the purchase contract. They passed over to the defendants this circular, together with the correspondence which had passed between them and the plaintiff. Upon the 23d day of February, 1900, the defendants wrote to the plaintiff the following letter: “ Gentlemen : We are in receipt of a letter from the F. R. Patch Mfg. Co., enclosing yours of the 20th inst. ■ They advise us to order the engine direct from you. Now, this is exactly how the matter stands. We have relied entirely upon Mr. Patch’s judgment in regards to power, as we think he had ought to know what is required to run his machines, and as Gasoline Engines are ■ entirely unknown to us, further than hearing and reading and looking at catalogue and cuts of same. After considerable discussion about different makes, Mr. Patch has finally advised us to use your engine, and sent us a copy of his letter to you, lfth inst., in which he stated that if the engine would do the work required, etc., that we would pay you according to a letter from you of some previous date, which, as we understood, is when it has proved to be what you recommend. * * * If you will give us a guarantee that your engine will drive 35 actual H. P. and work satisfactory in every respect as you recommend it to do, we will hereby confirm the order and pay you according to agreement, as we understand it, §950, 5 per cent off, when the engine has been tested and fulfills your specifications. As you are strangers to us, we will ask that the full meaning of a guarantee be carried out. * * * ” In reply to that letter, upon February twenty-sixth, the plaintiff wrote to the defendants a letter, the material parts of which are as follows: “ Gentlemen: Tours of the 23rd is received, in envelope postmarked the 24th, 4 p. h., and we have entered your order for our 35 actual H. P. Charter, which we will get up at the earliest possible date. We are exceedingly hard crowded, but will do the best that we can by you and will ship on or before March 15th. Tour understanding of the matter is correct, and we guarantee that this engine gives 35 actual H. P., each horse power being represented by 33,000 ft. lbs. If you wish us to put this guarantee into a more definite form, we will gladly do so, and in any shape that you desire. * * * ” The engine was thereafter delivered and received about the fourth of April. , The machinery, which was to be furnished by the Patch Manufacturing Company, was delayed, and it was not until the ninth of June that it was all in condition so that the engine could be attached thereto and tested. About five o’clock that day, just after the engine was stopped, it exploded from the base. The engineer was injured and a fire was caused which materially damaged the defendant’s plant. Notice of the fact of the explosion was immediately telegraphed to the plaintiff. Thereafter, upon the twenty-first day of June, the plaintiff was directed to remove its engine or notified that it would be removed at its expense. The plaintiff demanded pay for the engine, which was refused, and this action was brought to recover the purchase price. The answer, in a general way, denies the allegations of the complaint, and counterclaims for breach of warranty. The case was submitted to the jury, who returned a verdict for the plaintiff, and from the judgment entered upon that verdict, and the order denying a motion for a new trial, this, appeal has been taken.</p>

Appeal by the Albany Cemetery Association from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 2d day of July, 1902, authorizing the removal of the body of Ruth Owens, deceased, from the Albany Rural Cemetery. Ruth Owens was buried in the Albany Rural Cemetery at the instance of her father, Richard L. Owens, who, before his death, was the owner of a lot in said cemetery.

<p>Negligence — duty of a railroad company using a private street to keep planking Try the side of Us tracks in repair.</p> <p>A street railway company, which, by permission of a university, constructs its railroad upon a private street located on the university campus, owes a duty of active vigilance to those lawfully upon the campus upon the implied . invitation of the university, and if, while a person is driving along the street in a cutter hired from a liveryman, the cutter is overturned because of the negligent failure of the railroad company to keep in repair a line of planking which had originally been placed at the side of the rails for the purpose of bridging up to them, she may recover damages against the railroad company for the injuries done to the horse and cutter, where it appears that she has received an assignment of such claim from the livery stable keeper.</p>

<p> Damages where the title to property sold under execution fails, the judgment creditor homing engaged to hold the purchaser harmless. </p> <p>Where a person purchases property at an execution sale upon the promise of the execution creditor to hold him harmless, and thereafter the purchaser’s title to a portion of the property is declared invalid in an action which the execution, creditor refused to defend, although given notice to do so, the purchaser is entitled to recover from the execution creditor the amount bid by him upon the execution sale, together with the cost of defending the action relating to the title to the property, less the value of that part of the property which he was permitted to retain.</p>

<p>Negligence—fall of a limb of a tree on a telephone pole breaking it and causing the wire to sag and catch the top of a passing cam'iage — liability of the telephone company.</p> <p>In an action brought against a telephone company to recover damages for personal injuries sustained by the plaintiff, it appeared that at a certain point the defendant’s telephone line crossed from the north to the south side of a public highway; that the last pole on the north side of the highway was set about six feet from the base of an old maple tree which was about two and a half feet in diameter. After the pole had been in position for some years a thunder storm, accompanied by wind, occurred, causing a limb of the maple tree, which was from fifteen to eighteen inches in diameter and' thirty-five or forty feet long, and weighed several hundred pounds, to fall upon the wires and pole, breaking the pole in two places. The pole was decayed, but the force exerted by the falling limb was such that it would have broken a perfectly sound pole. The wires crossing the highway were not broken, but were pressed down so that they were only six or eight feet above the ground. Shortly after the limb fell, the plaintiff drove along the highway, and, she not seeing the wires, the top of her carriage was caught by one of them as she drove under them and the carriage was overturned, causing her to sustain the injuries in question.</p> <p>There was evidence that the thunder storm was not extraordinary or unusual in character; that the maple tree had been rotten for years before the telephone line was erected; that the limb which fell was also decayed and had dead limhs on it as large as a person’s leg, and that the condition of the tree and the limb could be plainly seen from the road. There was no evidence that the defendant ever inspected the tree.</p> <p>Held, that the questions of the defendant’s negligence and of the plaintiff’s freedom from contributory negligence were properly submitted to the jury, and that a judgment entered on a verdict in favor of the plaintiff should be affirmed;</p> <p>That it could not be said, as matter of law, that the falling of this unusally large and partially decayed limb was not a danger reasonable to be apprehended by a prudent person, and that, if it was such a danger, the defendant should have removed the pole or, after obtaining the necessary authority, have removed the tree or the dangerous limb therefrom.</p> <p>Parker, P. J., dissented.</p>

Appeal by the defendants, Frank H. McKinnon and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 3d day of March, 1902, upon the decision of the court rendered after a trial at the Delaware Trial Term, a jury having been waived. The facts are stated in the opinion of Kellogg, J.

Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the ■29th day of October, 1901, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 24th day of April, 1902, denying the defendant’s motion fora new trial made upon the minutes.

<p>Appeal by the plaintiff, The Town of Green Island, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 20th day of June, 1902, upon an order of said court bearing date the 21st day of April, 1902, reversing a judgment of a justice of the peace of the town of Green Island in favor of the plaintiff, entered on the 21st day of February, 1902, and also from said order upon which such judgment of the County Court was entered.</p> <p>This action was brought before a justice of the peace of said town of Green Island. The following is a copy of the plaintiff’s complaint:</p> <p>“ The plaintiff, by Carrell Coon, its supervisor, complains of the defendant, and for a cause of action alleges:</p> <p>“ I. That it is a municipal corporation duly incorporated under and by virtue of Chapter 811 of the Laws of 1896 of the State of New York, and is a political division and town of the county of Albany, and has been such at all times hereinafter mentioned.</p> <p>“ II. That the said Aaron P. Williams from and after the 1st day of January, 1897, and up to and including the 31st day of December, 1901, was one of the justices of the peace of said town, having criminal jurisdiction in said town and having power to impose fines upon persons convicted of crimes and misdemeanors within his jurisdiction.</p> <p>“ III. That by section 726 of the Code of Criminal Procedure said Justice was required to pay the Supervisor of said Town of Green Island any and all fines received by him as such Justice within thirty days after the receipt of same, and that, upon his failure to do so, such fines could be recovered by the supervisor of the said town in an action to be brought by him in the name of his town.</p> <p>“ IY. That said defendant has failed to pay over to said town fines imposed by him amounting to $25.00 as plaintiff is informed and believes, and wrongfully and unlawfully has converted same to his own use a/nd benefit and wrongfully a/nd unlawfully withholds same from the plaintiff a/nd the officer representing said town, to whom same should be paid for the said p/laintiff.</p> <p>“ Y. That said Carrell Coon is the supervisor of said town and under the law is entitled to receive said fines in behalf thereof, and that same has not been paid over nor any part thereof.</p> <p>“ Wherefore plaintiff demands judgment against said defendant for the sum of $25.00 besides the costs of this action,”</p> <p>After issue was joined, counsel for the plaintiff moved to amend the complaint by changing the amount of twenty-five dollars to thirty-nine dollars and by withdrawing the allegations of conversion. The defendant objected to the complaint being amended by withdrawing the allegations of conversion, whereupon that part of the motion was withdrawn. The complaintseems to have been deemed amended as to the amount. A jury was impaneled, and on the trial the facts stated in the 1st, 2d, 3d and 5th paragraphs of the complaint, together with the fact that defendant had failed to pay over to said town fines imposed by him amounting to thirty-nine dollars, were satisfactorily established. The jury rendered a verdict against the defendant for thirty-nine dollars, and judgment was thereupon entered in favor of the plaintiff for that amount, with costs. An appeal was taken by the defendant to the County Court, which reversed the judgment of the Justice’s Court. This appeal is taken from said judgment of reversal.</p>

<p>.Appeal by the petitioner, William S. Holmes, as executor, etc., of Mary E. Holmes, deceased, from a decree of the Surrogate’s Court of the county' of Chenango, entered in said Surrogate’s Court on the 25th day of November, 1901, judicially settling . his accounts as such executor.</p>

Appeal by William S. Holmes, as executor, etc., of Mary E. Holmes, deceased, from an order of the Surrogate’s Court of the county of Chenango, entered in said Surrogate’s Court on the 13th day of June, 1902, adjudging the said William S. Holmes guilty of contempt, fining him $1,794.30 therefor, and ordering his. imprisonment until the payment of such fine.

Appeal by the defendant, The Binghamton Railroad Company;, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk- of the county of Broome 'on the 4th day of August, 1902, granting the plaintiff’s motion to set aside the verdict of a jury in favor of the defendant and for a new trial upon a case and exceptions.

<p>Appeal by the defendant, Ira M. Ludington, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 16th day of May, 1902, upon the verdict of a jury for $1,093.38, and also from an order denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The order denying the motion for a new trial, referred to in the notice of appeal, does not appear in the record.</p>

<p>Appeal by the plaintiff, The County of Ulster, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of said court on the 19th day of November, 1901, dismissing the plaintiff’s claim.</p> <p>The proceeding was commenced August 10, 1899, under the provisions of chapter 336 of the Laws of 1899, to recover from the State $42,890.10, the amount of taxes collected from and paid by railroads in the towns of Ulster county bonded to aid in the construction of such railroads, and paid by the county treasurer to the State. *</p>

Appeal by the defendant, Henry H. France, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schoharie on the 21st day of July, 1902, upon the decision of the court rendered after a trial at the Albany Special Term, a jury trial having been waived.

<p>Cross-appeals in the first above-entitled proceeding by Bert A. Banker and others, legatees under the will of George W. Banker, deceased, and by George W. Peck, as executor, etc., of George W. Banker, déceased, from portions of a decree of the Surrogate’s Court of the county of Essex, entered in said Surrogate’s Court on the 10th day of February, 1902, judicially settling the accounts of the said George W. Peck, as executor, etc., of George W. Banker, deceased.</p> <p>Also, cross-appeals in the second above-entitled proceeding by Bert A. Banker and others, legatees under the will of Henrietta M. Banker, deceased, and by George W. Peck, as executor, etc., of Henrietta M. Banker, deceased, from portions of a decree of the Surrogate’s Court of the county of Essex, entered in said Surrogate’s Court on the 10th day of March, 1902, judicially settling the accounts of the said George W. Peck, as executor, etc., of Henrietta M. Banker, deceased.</p>

Certiorari issued out of the Supreme Court, and attested on the 25th day of June, 1902, directed to Robert B. Adam and others, as grade crossing commissioners of the city of Buffalo, commanding them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings in denying to the relator a hearing, and in refusing to apply for the appointment of a commission to appraise the compensation to be awarded her for alleged damages to…

Appeal by the defendant, Archelaus H. Parsons, from a judgment of the Supreme Court in favor of the plaintiff, entered in.the office of the clerk of the county of Jefferson on the 10th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9tli day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Providence Washington Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 17th day of April, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 5th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, George T. Jones, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 9th day of June, 1902, upon the verdict of a jury, rendered by direction of the court after a trial at the Erie Trial Term, dismissing the complaint upon the merits.</p> <p>The action was commenced on the 17th day of June, 1901, to recover the salary or compensation of $100 per month as clerk of the bureau of identification and information in the police department of the city of Buffalo, N. Y., from the 7th day of June, 1899, to the 1st day of February, 1901, amounting in the aggregate to the sum of $1,943.26, together with interest thereon from the 25th day of February, 1901, the time when the plaintiff presented his claim to the city for audit, and when payment was refused.</p>

Appeal by the defendant, St. Vincent’s Industrial School of Utica, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 11th day of February,. 1902, upon the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the llt-h day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The Consumers Ice Company of Buffalo, from a judgment of the Supreme Court in favor of the defendant, entered in the office of- the clerk of the county of Erie on the 15th day of June, 1901, uponxthe verdict of a jury rendered by direction of the court dismissing the complaint, and also from an order entered in said clerk’s office on the 13th day of July, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

Cross-appeals by the plaintiff, Peter A. Porter, individually and as grantee, etc., of George M. Porter and others, and by the defendants, The International Bridge Company and another, from portions of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 12th day of May, 1902, framing four specific questions to be tried by a jury, and directing a jury trial accordingly.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in . favor of the plaintiff:, entered in the office of the clerk of the county of Onondaga-on the 28th day of April, 1902, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 29 th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Joah W. Mercer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 12th day of September, 1901, upon the report of a referee.

Motion by the defendant, William Martin Jones, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff for $1,075.12 after a trial at the Monroe Trial Term.

<p>Appeal by the plaintiff, James P. Rhodes, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 26th day of December, 1901, upon the report of a referee dismissing the complaint upon the merits.</p> <p>On the 24th day of November, 1893, the Star Lake Lumber Company, a corporation, entered into a written agreement with the plaintiff whereby the latter agreed to manufacture into lumber at his mill the logs which the said company cut upon its tract of timber in the vicinity of the mill and delivered in the mill pond of the plaintiff. The plaintiff was to saw and pile the lumber in his yard ' and was to be paid for the soft wood two dollars twelve and one-half cents per thousand, and three dollars and twenty-five cents for the hard wood. The lumber was to be loaded on the cars by the plaintiff when directed by the company, and the stipulated prices were to be ascertained by “ board measure ” for the lumber “ cut, piled and loaded ” on board cars. The quantities were to be “ determined by the actual bills of sale or invoice for lumber sold,, or lumber shipped by the first party’s order.” Sixty per centum of the contract price for the work done Was to be paid in monthly payments.to enable the plaintiff to pay for doing said work, and as the company “ realizes on said lumber ” thirty per centum additional was to be paid, and the remaining ten per centum within thirty days from the completion of the manufacture and shipment of the whole of the said logs. The plaintiff finished manufacturing and piling the lumber in October, 1894. Prior to the 16th day of August, 1895, there had been shipped by the plaintiff, pursuant to the direction of the company, about 950,000 feet, when the balance, about 900,000 feet, was destroyed by fire without the fault of either party to the agreement. The lumber company had paid in full for all the lumber shipped and sixty per centum of that burned.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the County Court of Monroe county in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 28th day of January, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Conviction of assault under art indictment for homicide-^ only proper when “the act complained of is not proven to he the cause of death ” — a conviction for assault does not impliedly acquit of manslaughter or pn'event a new trial therefor.</p> <p>Under an indictment for homicide in any degree' the defendant cannot be convicted of the crime of assault if the act complained of caused death, as the elements composing the two crimes are not identical.</p> <p>The amendment to section 444 of the Code of Criminal Procedure (Laws of 1900, chap. 625), permitting the jury to convict of the crime of 'assault upon a trial for murder or manslaughter, is only applicable when “the act complained of is not proven to be the cause of death.”</p> <p>• Where, upon the trial of an indictment for manslaughter, the evidence indisputably establishes that the act complained of caused death, and the court, oyer the objection and exception "of the defendant, erroneously charges the jury that they may find the defendant guilty of either of the twp lesser degrees of assault, the conviction of .the defendant of the crime of assault in the second degree does not impliedly acquit him of the graver crime of manslaughter, and . thus prevent the Appellate Division, when reversing -the judgment of conviction on an appeal by the defendant, from ordering a new trial under the indictment.</p>

<p> Ordinance requiring a license for the sale of “fresh, salt or smoked meat or sausage outside of the public markets ” sustained—pi'oper motives and valid reasons therefor presumed—remedy where personal pique or political.motive is shown. </p> <p>Under section 17 (subds. 6, 8) of the charter of the city of Buffalo (Laws of 1891, chap.-105), requiring the common council to enact ordinances “ to license and regulate * *. * butchers” and “to regulate * * * the sale of meats,” it is competent for the common council to adopt an ordinance providing that no persons shall engage in the sale of “fresh, salt or smoked meat or sausage outside of the public markets” established by the common council, under penalty of a fine, without obtaining, on payment of a fee of fifteen dollars, a license issued by the mayor of the city upon the direction of the common council after a two-thirds vote of that body.</p> <p>In refusing an application for the license required by the ordinance, it will be" presumed that the common council were actuated by proper motives and valid reasons.</p> <p>■ Semble, however, that if the refusal to issue the license was dictated by personal piqué or by political motives, the court would, if the question, were properly presented to it, find means for granting relief to the applicant.</p>

<p>Certification of a check at the request of the drawer — a surety for the hank is not discha/rged because the bank credits the amount of the check to the -account of the payee.</p> <p>The certification, at the request of the drawer, of a check drawn by a special deputy commissioner of excise upon excise funds deposited with a hank, and the transfer at the time of such certification to the account of the payee, without the knowledge or acquiescence of the payee or the drawer, of the amount of the check, will not, in the event of the non-payment of the check when pre- ' sented with due diligence, discharge the drawer from liability to the payee and thus relieve the surety upon the bond, given by the bank to secure the faithful performance of its duties as depository, from liability to the State Commissioner of Excise for the amount of such check.</p> <p>Williams, J., dissented.</p>

Appeal by the plaintiff, Adolph Lowenberg, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 11th day of August, 1900, upon the report of a referee dismissing the complaint upon the merits. The following is the portion of the map referred to in the opinion • on which the locus in quo is delineated.

Appeal by John F. Burke, receiver of The Rogers Construction Company, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 10th day of February, 1902, confirming the 'report of a referee awarding to the respondent certain moneys in the hands of the receiver. -

<p>Appeal by the defendant, Aaron A. Graff, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 4th day of November, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of November, 1901, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence — testimony of a physician that the injury would he permanent—that such an injury might develop into other fatal conditions—notice to the city in which the accident occurred, after the period specified in the city charter, held to he sufficient.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, the plaintiff’s attendant physician, who testified that her present trouble was spinal irritation caused by the accident, may properly be permitted to testify, from the knowledge acquired by him in his treatment of the plaintiff, that such injury will prove permanent and will ultimately result in paralysis.</p> <p>The objection that the questions propounded to the physician were so framed as to cover, not only the spinal irritation, but all of the injuries received in the accident, including an injury to the plaintiff's knee, which she had concededly recovered from, does not constitute reversible error, where it appears that the case was tried before a referee and that the witness and the referee must have understood the questions to refer solely to the spinal irritation.</p> <p>A question, propounded to the physician, not based upon his knowledge or treatment of the plaintiff, and not referring to the plaintiff or to her condition, but asked as a general question to an expert, as to “Whether or not nervous irritation caused by a wound or shock might develop into other fatal conditions, with this'as the superinducing cause, the shock or wound,” is not objectionable.</p> <p>Section 7 of title 3 of the charter of the city of Jamestown (Laws of 1886, chap. 84, as amd. by Laws of 1898, chap. 231, § 2), providing, “Where any action is brought against said city to recover damages for death or personal injuries, caused by defective sidewalks or streets, the plaintiff must show that notice in writing of the place where said accident occurred, out of which said claim arose, was given to the mayor, city clerk or some alderman of said city, within forty-eight hours after the happening thereof, in order to maintain such action,” is substantially complied with by the service of the required notice seventy-two hours after the aceidént happened, where it appears that, from the time of the accident until the time the notice was prepared and served, the plaintiff, by reason of the injuries resulting from the accident, was physically and mentally incapacitated from preparing and serving such notice.</p>

Appeal by the plaintiff, Bessie Smith, an infant, by Lewis I. Smith, her guardian ad litem, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 28th' day of March, 1902, setting aside the verdict of a jury in favor of the plaintiff and granting the defendant’s motion for a new trial made upon the minutes.

<p>Statute of Limitations—when compensation for services is due in a single payment after they me rendered—payment of an order providing “charge same to my account” — it does not revive outlawed claims where a claim, not outlawed, existed.</p> <p>A contract by which one party employs another to inspect, measure and pay for pulp wood to be delivered to the first-mentioned party by various persons (which contract does not specify the compensation to be paid for the services nor the time during which the employment is to continue nor the time at which payment is to be made for the services rendered thereunder), creates an entire undertaking on the part of the employee to perform the services with respect to such pulp wood as may be delivered and entitles him upon the completion of the work to receive compensation in a single payment.</p> <p>Where a party, indebted to another upon four claims, honors an order for a sum of money which the creditor draws upon him with instructions to .“charge same to my account,” at a time when three of the claims are outlawed and it does not appear to which claim the payment is applied by either the debtor or the creditor, such payment will not operate to revive the outlawed claims.</p>

Appeal by the defendants, Maria Sullivan 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 Wyoming on the 21st day of December, 1901, upon the verdict of a jury for $810.50 rendered by direction of the court.

Appeal by the defendant, The City of Rochester, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of June, 1902, upon the decision of the court, rendered after a trial at the Monroe Special Term, sustaining the plaintiff’s demurrer to the third separate defense contained in the defendant’s answer.

Appeal by the plaintiff, Jennie A. Batty, as administratrix, etc., of William H. Batty, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 5th day of May, 1899, upon a non-suit directed by the court after a trial at the Niagara Trial Term.

Appeal by the defendant, Henry A. Laughlin, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 3d day of February, 1902, upon the verdict of a jury for $500, rendered by direction of the court, and also from an order entered in said clerk’s office on the 13th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Mary Holihan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 8th day of July, 1902, upon the decision of the court rendered after a trial at the Cayuga Special Term.

■ Appeal by the defendant, The Traders’ Insurance Company of Chicago, Illinois, from a judgment of. the Supreme Court in favor, of the plaintiffs, entered in the office of the clerk of the county of Orleans on the 20th day of May, 1902, upon the decision of the court rendered after a trial before the court without a jury at the Orleans Trial Term.

<p>A contract vendee sued in ejectment by a vendor unable to give a clear title — he is entitled to recover money paid for the 'purchase and for the improvement of the premises less the rental value — if the plaintiff has a part interest in the land he should repay a like part of such money.</p> <p>In an action in ejectment to recover an undivided one-fourth interest in certain lands, it appeared that one Crouch died seized of the lands, leaving a- will, by which he devised an undivided one-fourth interest therein to the plaintiff, and by which he clothed his executors with á power to sell such lands; that the plaintiff, who was one of the executors, acting on behalf of himself and the executors, contracted to sell the premises to the defendants for the siim of §1,000; that the defendants paid §100 on the contract, entered into possession of the land's and expended moneys thereon; that the executors were unable to convey , a clear title to the lands, and that the defendants for that reason refused to fulfill the contract.</p> <p>Held, that as a condition of securing possession of the one-fourth interest to which he was entitled, the plaintiff should be compelled to repay to the defendants one-fourth of the §100 paid by them upon the Contract, with interest, and also one-fourth of the moneys expended by them for the benefit of the premises, the last item being subject to a deduction of the rental value of plaintiff’s said interest in the premises while the defendants were in possession thereof.</p>

Appeal by Watson Turner, by Willard Turner, bis committee, as guardian of the property of Earl M. Pinckney, a minor, from portions of a decree of the Surrogate’s Court of the county of Herkimer, entered in said Surrogate’s Court on the 10th day of April, 1901, judicially settling the accounts of said guardian.

Appeal by the defendant, Samuel J. Clark, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 31st day of May, 1902, upon the verdict of a jury for $1,600.27, and also from an order entered in said clerk’s office on the 3d day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John J. Hallock, individually and as one of the administrators with the will annexed,-etc., of Benjamin Hal-lock, deceased, and as executor, etc., of Harriet Hallock, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 3d day of June, 1902, upon the report of a referee dismissing the plaintiff’s complaint on the ground that it does not state facts sufficient to…

Appeal by the relator, Loren E. Boies, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 19th day of November, 1902, denying the relator’s application for an order directing the correction of election returns.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 17th day of May, 1902, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 29th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s…

<p>Will—a gift of the residue of an estate to the testators widow for life, “with the right to use and dispose of so much of the principal of said residuary estate during her lifetime as she shall see fit” — it does not authorise a transfer to take effect on the widow’s death—who is not a purchaser within the Statute on Powers—who may sue to recover property improperly ii'ansferred by the widow.</p> <p>Morgan Butler, who died August 3, 1893, left him surviving his widow, two sisters and^two nieces. His estate consisted of §18,000 in real property and ■ §65.000 in securities. By his will he gave his executors §40,000 in trust to pay the net annual income thereof to his wife during her life, and, at her death, he ■ gave the fund to twelve different legatees, two of whom were his two nieces. His two sisters were not mentioned among such legatees. He then provided: “ All the rest, residue and remainder of my property and estate, real and personal, I give, bequeath and devise to my said wife, Marianne H. Butler, for life, with the right to use and dispose of so much of the principal of said residuary estate during her lifetime as she shall see fit. Upon the death of my said wife I give, bequeath and devise all that shall then remain of my said residuary estate,” to three sisters, naming them, and the two nieces. One of his sisters predeceased him.</p> <p>May 5, 1894, the accounts of the executors of Morgan Butler were judicially settled, and, in pursuance of the decree rendered in such proceeding, the stock passing under the residuary clause of the will was transferred to the testator’s widow.</p> <p>May 31, 1897, Mrs. Butler assigned the stock to one of her employees, taking from him an agreement that, at her death, he would assign the same to a church corporation for the purpose of erecting a church. Pursuant to an understanding between the widow and her employee, the dividends declared on the stock during the widow’s lifetime were paid over to her. After the widow’s death, which occurred September 8, 1901, such employee, in accordance with the agreement, transferred the stock to the.church corporation, which paid no consideration therefor. The stock was valued "at about §14,000 which constituted substantially the entire residuary personal estate.</p> <p>In an aption brought by the two nieces of the testator who had succeeded to the interests of the other residuary remaindermen against the corporation to set aside such transfer, it was</p> <p>Meld, that the power of disposition over the residuary estate given to the testator’s widow was limited to what was, in her judgment, reasonably necessary for her use and enjoyment during her life, and that she had no power to make the transfer to the defendant which was, in effect, a testamentary disposition of the residuary estate;</p> <p>That the transfer to the church corporation being, in substance, a gift, the church corporation was not a purchaser within the meaning of the Statute on Powers, even if that statute was applicable;</p> <p>That the plaintiffs were entitled to attack the transfer.</p>

<p>Appeal by the defendant, Mary Meyerhof!, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 14th day of October, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by Thomas King, as administrator, etc., of Rosa King, deceased, and others, from an order of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court,* opening a decree of the said court bearing date the 18th day of July, 1898, which admitted to probate the alleged will of Julia Murphy, deceased, and directing a new hearing as to fraud in procuring the alleged execution of the will.

<p> Charge as to the ca/r.e which an infant between twelve and thirteen years of age is-bound to exercise. . </p> <p>In an action brought by an infant between twelvq and thirteen years of age to recover, damages for personal injuries sustained by him through the alleged negligence of the defendant, it is the duty of the court to instruct the jury that he was chargeable with the exercise of the same degree of care which the law requires of an adult, unless it is shown that he did not have sufficient capacity to exercise such degree of care; it is, therefore, improper for the court to charge in such a case, “In the case of a child it is that degree of care which ordinarly a child of the same age and development might be expected to use, not necessarily the care of an adult person,” and that, “If the plaintiff used ordinary care himself, that is to say, the amount of care which should reasonably be expected from a child of his age and apparent development and ability and he was injured by reason of a situation of danger,” the defendant would be liable.'</p>

<p>Appeal by the defendant, the Forty-second Street, Manhattan-ville and St. Nicholas Avenue 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 31st day of March, 1902, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 25th day of April, 1902, denying the defendant’s m'otion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Felix Agnus, manager aúd trustee of the “ Baltimore American ” newspaper, 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 23d day of August, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21th day of January, 1902, denying the said defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 21st day of August, 1902, granting the plaintiff’s motion to vacate and set aside an order theretofore entered in the action amending the summons and complaint.</p> <p>For decision on former appeal, see J3 Appellate Division, 240.</p>

Appeal by the defendant-, Alexander P. Ketchnm, from an order of the Supreme Court, made, at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 31st day of December, 1902, granting the plaintiff’s motion to amend the decision and judgment theretofore entered in' the .action by striking therefrom, wherever they appear therein the words “ upon the merits.” 1

<p>Possession alone of adulterated milk is not an offense under section 63 of the . New York city Sanitary Code—power of the Legislature to authorize the enactment of that section — the section was not repealed by section 1172 of the New York cha/rter nor is it controlled by section 22 of the Agricultural Law.</p> <p>The mere possession of adulterated milk in the city of New York is not an offense punishable under section 63 of the Sanitary Code of the board of health of the city of New York, which provides that no adulterated milk “shall be brought into, held, kept or offered for sale at any place in the city of New York, nor shall any one keep, have or offer for sale in the said city any such milk.”</p> <p>The Legislature had authority to confer upon such board of health power to enact section 63 of the Sanitary Code.</p> <p>Such section was not repealed by section 1172 of the charter of the city of New York, nor is section 22 of the Agricultural Law alone controlling upon the subject of adulterated milk.</p>

Appeal by the defendants, Engelbert Hardt and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 12th day of May, 1902, upon the decision of the court, rendered after a trial at the Hew York Special Term, setting aside a certain transfer as fraudulent and appointing a referee to determine the value of the property transferred.

<p>Eminent domain— action for an injunction and damages against an elevated railroad— effect of a conveyance by the plaintiff— the right to bring in the grantee as a party plaintiff depends on whether the claims against the railroad are reserved to the grantor— constitutional right of the elevated railroad to a trial by jury.</p> <p>Where the plaintiff, in an action in equity brought to restrain the operation of the defendant’s elevated railroad in front of premises owned by him and to recover past damages resulting from such operation, conveys the premises during the pendency of the action, section 452 of the Code of Civil Procedure, as amended by chapter 512 of the Laws of 1901, does not make it mandatory upon the court to grant the plaintiff’s application to have the grantee made a party to the action, but the disposition of such a motion still rests within the discretion of the court.</p> <p>The court should, in the proper exercise of such discretion, deny the motion, if it appears that the conveyance to the grantee contained no reservation. It may grant the motion (in which the grantee joins) when it appears that the conveyance reserved to the plaintiff all claims against the elevated railroad company for damages to the fee and rental values of the premises and that the grantee covenanted therein to do all things necessary to enable the grantor to recover such damages from the elevated railroad company and to consider himself a trustee for the grantor of the easements appurtenant to the premises in so far as they were affected by the operation of the elevated railroad and of any damages that might be paid to him on account of interference therewith.</p> <p>In such a case the defendant has not the constitutional right to insist upon a trial by jury, because, if it should be determined that the effect of the reservation in the conveyance is to leave in the original plaintiff the right in and to the easements affected by the operation of the railroad, then the equitable features are still preserved in the action and it can be continued as one in equity without offending against that provision of the Constitution relating to the right of trial by jury.</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 3d day of June, 1902, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 3d day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

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 13th day of May, 1902, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 28th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p> Oral evidence as to the hind, of worh which it was orally agreed should he done under a written contract which is 'silent in that respect. </p> <p>.In an action brought to recover for theatrical posters manufactured by the plaintiff’s assignor for the defendants under a written order given hy the defendants to an agent of the plaintiff’s assignor, the complaint alleged and the ' answer admitted that the work which the. plaintiff’s assignor agreed to do for the defendants was known as “ pictorial lithographic work.” The evidence of the defendants tended to show that pictorial lithographic work was understood in the trade to mean stone work and not a combination of stone and zinc work such as was done hy the plaintiff’s assignor for the defendants.</p> <p>The order under which the work was done, and the acceptance of such order were silent as to the character of the- work or the process by which it was to he produced.</p> <p>Held, that the defendants were entitled to- prove by parol testimony that’ at the time the order was given to the agent of the plaintiff's assignor it was orally agreed between the parties that the work should be pictorial lithographic work and that this agreement was communicated by the agent to his principal at the time the order was accepted.. .</p>

<p>Tontine savings fund policy — levy of an attachment thereon—when no debt exists in favor of the insured against the company until the former elects which option, of several given to him by the policy at the completion of the tontine dividend period, he will select.</p> <p>A tontine savings fund policy of life insurance provided that previous to the completion of its tontine dividend period on October 8, 1888, the policy should have no surrender value in cash or in a paid-up policy, but that upon the expiration on that date of the tontine dividend period, the legal holder of the policy should have the following options: Mrst, to withdraw in cash the policy’s entire share of the assets; second, to convert the policy into a paid-up policy; third, to continue the insurance for the original amount and apply the tontine dividend in reduction of the subsequent premiums, and, fourth, to withdraw in cash the policy’s share of the accumulated surplus and to continue the policy in force on the ordinary plan.</p> <p>Prior to October 8, 1888, an attachment creditor of the insured, the latter being then the legal holder of the policy, gave notice to the insurance company of an election to receive the full cash value of said policy on the 8th day of October, 1888. On that day the sheriff, on behalf of such attachment creditor, served upon the insurance company a copy of the warrant of attachment and demanded the cash value of the policy, which demand was refused. Thereafter, the insured, as the legal holder of the policy, elected to take a policy payable upon his death to his children, and in pursuance of that election the insurance company issued the policy.</p> <p>Held, that, until the legal holder of the policy exercised his option after the completion of the tontine dividend period, he had no demand which he could enforce against the insurance company, and that, consequently, there was on October 8, 1888, when the warrant of attachment was served on the insurance company, no interest of the attachment debtor to which it could attach;</p> <p>That, assuming that the warrant of attachment had been served after the completion of the tontine dividend period, the attachment creditor would not be the legal holder of the policy and would not, therefore, be entitled to exercise the option given by the terms of the policy to the legal holder thereof upon the expiration of the tontine dividend period;</p> <p>That the right of election existing in the attachment debtor upon the completion of the tontine dividend period could not be levied upon as a cause of action arising upon contract under section 648 of the Code of Civil Procedure, as such election must precede the existence of a cause of action against the insurance company.</p>

Appeal by the plaintiff, Leopold Blum, an infant,,by Fannie Blum, 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, 20th day of February, 1901, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence after a trial at the New York Trial Term. • .

v Appeal by the défendant, F. W. Seagrist, Jr., Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day of December, 1902, granting the plaintiffs motion for a discovery of defendant’s books for the purpose of framing the complaint.

<p>Certiorari issued out of the Supreme Court and attested on the 13th day of Rovember, 1902, directed to Charles Y. Fornes and others, composing the board of aldermen of the city of Rew York, requiring them to certify and return to the office of the clerk of the county of Rew York all and singular their proceedings had in refusing to award to the relator a seat in said board.</p>

<p>Broker—an inspection of Ms books not granted on the application of a customer, sued by the broker to recover a balance of account for commissions and interest on advances — appeal from an order as resettled by another order.</p> <p>A broker, who had purchased, sold, cleared and carried for a customer, stocks, bonds, wheat and silver certificates, and had advanced money to him, brought an action against the customer to recover a balance alleged to be due to him for commissions and interest upon advances. After the service of the summons and complaint in the action, the defendant applied for an order requiring the plaintiff to deposit with his attorney all his books containing accounts records or entries of all business transactions connected directly or indirectly with the defendant, and also all books showing the rates of interest paid and received by the plaintiff in connection with said transactions, and permitting the defendant to inspect and take copies thereof. The application was based upon a petition alleging that the transactions covered a period of about six years and represented many millions of dollars; that the defendant had no means of ascertaining or determining the correctness of the balance alleged to-be due from him otherwise than by an inspection of the books relating to the cause of action, and that the statements of account, furnished by, the plaintiff to the defendant from time to time, were incorrect and unreliable; that many of the errors and mistakes therein had been acknowledged to be such by the-plaintiff, and that the statements did not contain information obtainable from the books which was necessary to enable the petitioner to frame his answer and prepare for trial.</p> <p>It further appeared that both the plaintiff and the defendant were members- of the New York Stock Exchange, and it was alleged, and not denied, that a vast majority of the transactions were made by the defendant himself,'and that the plaintiff simply carried out such transactions; that, during the period covered by the transactions, the defendant was constantly in the plaintiff’s place of business, examined the books and had personal knowledge of the transactions conducted by the plaintiff on his behalf.</p> <p>Held, that the defendant’s application for an inspection of the plaintiff’s books should have been denied;</p> <p>That such an inspection was unnecessary to protect the rights of the defendant, and would simply enable the defendant to ascertain whether the plaintiff, upon the trial, would be able to prove the correctness of the statements made by him;</p> <p>That the sole effect of the examination would be to enable the defendant to ascertain whether there Was any defect in the plaintiff’s proof, or anything that would justify the defendant in interposing a defense or counterclaim, and that the inspection would not be allowed for this purpose.</p> <p>A notice of appeal from an order “entered herein on the 21st day of April, 1902, as resettled by the order entered herein on the 2d day of December, 1902, and from each and every part thereof,” brings up for review the whole order as resettled and not simply that portion thereof resettling the prior order; the effect of the resettlement is to vacate the order originally granted and to substitute in place thereof the order as resettled.</p>