Volume 79 — New York Supplement

Action by Emeline Jimeson against Ira Pierce and others. From an interlocutory judgment overruling a demurrer to the complaint, and from an order directing such judgment, defendants appeal. Affirmed.

Mandamus by the people, on the relation of David G. Van Deren and others, against the mayor of the city of Geneva, to compel the appointment of an examining board of plumbers for the city. From an order directing the issuance of a peremptory writ, defendant appeals. Reversed.

<p>Appeal from special term.</p> <p>Ejectment by William G. Barson and another against Agnes K. Murphy Mulligan and another. From an order denying a. motion to amend a judgment for plaintiffs, defendants appeal. Affirmed.</p> <p>See 73 N. Y. Supp. 262.</p>

<p>Appeal from court of claims.</p> <p>Action by Horace D. Dibble against the state of New York. From a judgment for claimant for a part of his demand, he appeals. Reversed.</p> <p>The claimant is the owner of a piece of land near the Champlain Canal. The state of New York maintains a spillway or wasteweir by and through which the surplus water in said canal is drawn and discharged into Bond creek, running through said lands of claimant. The court of claims found that “the officers, agents, and servants of the state of New York in charge of-said canal, spillway, and wasteweir negligently and carelessly drew water in large quantities and of great volume from said Champlain Canal through said spillway or wasteweir, and discharged the same into Bond creek, and so negligently kept said wickets, gates, or wasteweir open until the channel of Bond creek was filled, and did thereby cause the water to overflow the banks of said creek, and to overflow to some extent the lands of said claimant, and thereby injured and destroyed a crop of potatoes growing thereon.” The court found the damage amounted to §195.</p>

Action by the city of Lo deport against Frances Mangold and others. From an interlocutory judgment on a decision of the court, defendants appeal. Reversed.

<p>1. Insurance—Answers in Application—Warranties or Representations*</p> <p>Where insured’s application declared the answers made by him therein, to be true, and agreed that such answers, the application, etc., should form the basis of the contract of insurance, and that any untrue answers should vitiate the contract, but the certificate of insurance made no reference in any way to the application or the answers or agreement therein contained, the answers were not warranties, but representations, and would not vitiate the certificate even if untrue, unless fraudulently made, or material to the risk, or made in bad faith.</p> <p>3. Same—Fraudulent Representations—Burden op Proof.</p> <p>The burden of proving that representations made by insured in his application were fraudulent, and made in bad faith, is on the company.</p> <p>8. Same—Evidence—Admissibility.</p> <p>On an issue whether insured’s answer in his application to the effect that he had never been rejected, which was untrue, was made fraudulently, and in bad faith, evidence was admissible to show that at the1 time he made it the agent knew about a prior rejection, but told insured to make the answer as he did, and that he would take the application with him, and explain the prior rejection to the company.</p> <p>4. Appeal—Exceptions—Necessity.</p> <p>The court will, in extraordinary cases, and in the furtherance of justice, review questions as to the admissibility of evidence, though no exception has been taken to the ruling excluding it.</p>

Action by Margaret McGuire against the Auburn Savings Bank. From an order granting an interpleader, and directing that the administrator of Mary Murphy be made a party defendant in the place of the bank, plaintiff appeals. Affirmed.

<p>1. Pleading—Bill op Particulars—Facts in Possession op Adversary.</p> <p>In an action by a widow against her husband’s administrator for money collected for her use by the deceased while conducting a business for her, she will not be required to furnish a further bill of particulars than the amounts collected each year, where there is no reply to her affidavit, which recited that her husband kept all the accounts, and that defendant’s attorneys have possession of the account books, without which she cannot give a further bill.</p>

<p>1. Rape—Evidence—Sufficiency.</p> <p>On appeal from conviction of rape, evidence considered, and held that a new trial would be awarded, under Code Cr. Proc. § 527, providing the appellate court may order a new trial on appeal in a criminal case when it appears that the verdict is contrary to the weight of evidence.</p> <p>Ingraham and Hatch, JJ., dissenting.</p>

Action by Thomas J. O’Neill against Leroy B. Crane as surviving partner of the firm of Leroy B. Crane and Royal S. Crane. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Appeal from special term, Orleans county.</p> <p>Action by Betsey Stewart against Clifford A. Dunn. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Mary Clark against Benjamin N. Disbrow, impleaded with others. From a judgment in favor of plaintiff, and from an order denying a motion to set asidé the verdict and for a new trial on the minutes, defendant Disbrow appeals. Affirmed.

<p>1. Municipal Building Department—Employes—Making Affidavits—Extra Compensation.</p> <p>Rule 27 of the New York City building department requires all employés to perform such other duties not specially prescribed for them as the interest of the service may require in the opinion of the superintendent of buildings. Rule 5 requires all necessary notices to be served by any employé, and proper returns thereof to be immediately made. The chief clerk instructed employés that affidavits required to be taken in the department were to be so taken as part of their duties. Held, that an employé was not entitled to extra compensation for services in connection with the taking of affidavits.</p>

Action by Robert McCarthy against George S. Emerson. From a judgment in favor of plaintiff, and from an order denying a motion • to set aside the verdict of the jury and for a new trial on the minutes, defendant appeals. Reversed.

Proceedings on the part of the city of New York to acquire title to a public park. From an order taxing the costs, charges, and expenses of the commissioners of estimate appointed in the proceedings, the city appeals. Modified.

Action by Charles H. Seamans against Jacob Barentsen. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Action by John Aird Dempsey against the Bergen County Traction -Company, Joseph M. -Gazzam, and others, to recover -attorney’s fees -for services rendered in the organization and -promotion of the -corporation defendants, and to recover on a contract of employment by the individual -defendants. The complaint alleged -generally plaintiff's .employment -and the .amount -due.

George Neyer was convicted of being a disorderly person, for abandonment of his wife and children, and appeals. Reversed.

Action by James Corbett, an infant, by Michael J. Corbett, his guardian ad litem, against the St. Vincent’s Industrial School of Utica, brought to recover damages for injuries sustained by plaintiff while assisting in operating a mangle. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Appeal from trial term, Erie county.</p> <p>Action by the Consumers’ Ice Company of Buffalo against E. Webster, Son & Co. From a verdict in favor of defendant, and from an order denying plaintiff’s motion for a new trial on the minutes, plaintiff appeals. Affirmed.</p>

<p>Appeal from special term.</p> <p>Action by Peter A. Porter and others against the International Bridge Company and another, impleaded with the city of Buffalo and others. From an order directing a trial by jury on issues plaiiitiff Porter appeals, and from the judgment stating the questions for the jury defendants appeal. Reversed.</p> <p>At the close of plaintiff’s evidence the trial court, without passing upon or deciding any of the issues involved, held that the defendants the International Bridge Company and the Grand Trunk Railway Company were entitled to a trial by jury as a constitutional right, to which the plaintiff excepted. Subsequently the court stated four questions to be tried by the jury, to which the defendants (appellants) excepted, and thereupon the order appealed from, which decided that the defendants were entitled to a jury trial as a constitutional right, and which stated the questions to be tried by the jury, was duly entered. The plaintiff Peter A. Porter individually, etc., appeals from that part of the order which decided that the defendants are entitled to a jury trial as a constitutional right, hut is content with the questions as stated by the court if the defendants are entitled to a jury trial. The defendants the International Bridge Company and the Grand Trunk Railway Company appeal from that part of the order which states the questions to be tried by a jury, but are content with the order in so far as it decides that the defendants are entitled to a jury trial.</p>

<p>Appeal from trial term, Jefferson county.</p> <p>Action by James P. Rhodes against Frank A. Hinds. From a judgment for defendant, plaintiff appeals. Reversed.</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 $2.12%. per thousand, and $3.25 for the hard wood. The lumber was to be loaded dn 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,” 30 per centum additional was to- be paid, and the remaining 10 per centum within 30 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 tile 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 60 per centum of that burned.</p>

Proceedings for the voluntary dissolution of the Rogers Construction Company, a corporation. From an order entered on a referee’s-report sustaining the validity of an assignment of a judgment recovered by the corporation to the German-American Bank of Tonawanda,. the receiver appeals. Affirmed.

<p>Appeal from municipal court of Buffalo.</p> <p>Action by the city of Buffalo against Burt L. Hill. Judgment for plaintiff, and defendant appeals. Affirmed.</p>

<p>Appeal from Cattaraugus county court.</p> <p>Emmett Wheeler was convicted of assault, and appeals. Reversed.</p>

<p>Appeal from trial term, Erie county.</p> <p>Action by Thomas M. Ryan and another against the Providence Washington Insurance Company. From a judgment in favor of ■plaintiffs, and an order denying defendant’s motion for a new trial, •defendant appeals. Reversed.</p> <p>The action was commenced on the 19th day of July, 1899, to recover upon a policy of insurance issued by the defendant, insuring a steam canal boat against damage by fire and marine perils. The action was first tried in November, 1899, when a verdict was directed "in favor of the plaintiffs. Upon defendant’s motion a new trial was granted upon the ground, as appears by the opinion of the presiding justice, that it was against the weight of the evidence.</p>

Action by the people against Emil Laesser to recover a penalty for the sale of adulterated milk. From a judgment in favor of defendant and from an order denying a new trial the people appeal. Reversed.

Action by John J. Driscoll against the city of New York. From a judgment (77 N. Y. Supp. 997) dismissing the complaint after trial without a jury, plaintiff appeals. Affirmed.

<p>1. Appeal—Trial by Court—Findings op Fact—Conclusions op Law—Exceptions.</p> <p>Where no exceptions are filed to the findings of fact and conclusions of law of the trial court, an appeal from the judgment brings up for review only exceptions taken at the trial.</p> <p>3. Same—Findings on Conflicting Evidence.</p> <p>Findings of fact by the trial court on conflicting evidence will not be reversed on appeal where there is sufficient evidence to support them.</p>

Action by Josiah W. Wentworth and others, as trustees, against Jennie Braun and others. Appeal by Ferdinand Sulzberger from an order compelling him to take title on a judicial sale. 78 N. Y. Supp. 233. Affirmed.

<p>1. Account Stated—Pleading—Proof—Failure of Proof.</p> <p>A complaint alleged that plaintiff was the owner of a claim against defendant, founded on an account stated between defendant and one deceased. There was no evidence of any statement of account between defendant and deceased in his lifetime, but there was introduced a letter, written by plaintiff’s husband to defendant, containing a bill or statement of an amount due from defendant to the “estate of the deceased,” and an answer to the effect that defendant would pay as soon as possible. 1Held!, that there was no proof of an account stated.</p>

Action by Enos N. Taft, as assignee in bankruptcy of George Riker, against William McCarty Little, individually and as executor of Augusta McCarty Little, deceased. Judgment entered on the report of a referee, and both parties appeal. Affirmed.

Action by Adolph Loeb against the Firemen’s Insurance Company. From an interlocutory judgment (77 N. Y. Supp. 106) sustaining a demurrer to the second defense set up in the answer, defendant appeals. Affirmed.

Judicial settlement of the accounts of C. T. Wooley, as administrator of the estate of Henry C. Wooley, deceased. From a decree of final settlement (77 N. Y. Supp. 934), Charles E. Flawlcins and another, as next of loin of the deceased, appeal. Reversed.

Proceeding by Plenry H. Hendricks against Henry S. Hendricks and others to obtain a construction of the will of Joshua Hendricks, deceased. From a judgment favorable to plaintiff, defendant Henry S. Hendricks appeals. Affirmed.

<p>Appeal from municipal court of city of New York.</p> <p>Action by the National Radiator Company against George I. Hull, Jr., and another. From a judgment for plaintiff after a trial without a jury, defendants appeal. Affirmed.</p>

Proceedings by the Mac ICnight Flintic Stone Company against the city oí New York and another to foreclose a mechanic’s lien. From a judgment for defendants, plaintiff appeals. Affirmed.

<p>Appeal from trial term, New York county.</p> <p>Proceedings by the MacKnight Flintic Stone Company against the city of New York and another to foreclose a mechanic’s lien. From a judgment for defendants, plaintiff appeals. Affirmed.</p>

<p>1. Renewal Note—Want of Consideration.</p> <p>A note executed by two persons as joint makers in renewal of a note previously made by them, but on which one of the joint makers had been released by the holder, is without consideration as to such joint maker.</p> <p>2. Compositions with Creditors—Joint Debtors.</p> <p>Under the express provisions of Code Civ. Proc. § 1942, a separate composition made by a joint debtor with his creditors does not release the joint debtor who does not join in it.</p>

Suit by the Irving National Bank against Daniel C. Moynihan and others. From an order denying a motion to vacate and set aside a decision in favor of defendant Daniel C. Moynihan, plaintiff appeals. Affirmed.

Application by Eva G. Bolles for an order requiring Edward H. Murphy, an attorney, to pay over money received by him as petitioner’s attorney in an action for divorce. From an order directing the payment of $70, both parties appeal. Modified.

<p>1. Wrongful Attachment—Action against Sheriff—Elements of Damages;.</p> <p>In an action against a sheriff for wrongfully attaching a stock of-goods, lost profits cannot be recovered, their place being, taken by- legal, interest on the value of the goods.</p> <p>3. Same—Erroneous Admission of Evidence—Cure..</p> <p>The erroneous admission, in an action against a sheriff for wrongfully attaching a stock of merchandise, of evidence of lost profits, is not cured; by instructions that the measure of damages is the sum which will replace the goods, and that plaintiff cannot recover damages based on-good' will or profits arising therefrom; the evidence not being specifically withdrawn, the verdict being apparently excessive unless lost, profits were included, and both the trial court in its opinion and counsel on appeal treating that element of damages as in the case.</p> <p>8. Declarations of Seller—Impeachment of Buyer’s Title.</p> <p>Declarations of a seller, made after the sale, are not admissible-to impeach the buyer’s title.</p> <p>f 3. See Evidence, vol. 20, Cent. Dig. § 855.</p>

Action by William B. Young and others against Benjamin E. Valentine. Erom a judgment entered on a referee’s report in favor of plaintiff, both parties appeal. Affirmed.

<p>1. Action tor Accounting—Necessary Parties.</p> <p>A clause in a will gave shares of stock to trustees, and provided that one-fourth of such stock should be held for the benefit of the beneficiaries named in each of four different paragraphs thereof, and directed the trustees to pay to such beneficiaries, in equal proportions, an annual sum representing an incbme of 5 per cent, on one-fourth of the stock. The court of appeals, construing this clause, decided that each paragraph created a separate trust, and that the trustees took only a power of trust, and that the several legacies vested severally in the several legatees, iHeld, in an action by a legatee, under one of the four paragraphs of the clause for an accounting of the income due him under the paragraph, in which the other beneficiaries named in the paragraph and all the living trustees and ail the heirs and next of kin of those who are interested in the will and had died were joined as parties defendant, that the legal representatives of the deceased trustees and of the deceased beneficiaries under the other paragraphs were not necessary parties defendant.</p>

<p>1. Divorce—Adultery—Presumption of Innocence.</p> <p>Where the evidence in an action for divorce as to the husband’s adultery is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, the court must adopt the former view in preference to the latter.</p> <p>If 1. See Divorce, vol. 17, Cent. Dig. §§ 357, 420.</p> <p>3. Same—Evidence—Sufficiency.</p> <p>Evidence in an action for divorce examined, and held insufficient to support a finding that the husband had committed adultery.</p>

Action by Georgiana Nichols against William G. Park. Judgment overruling demurrer to complaint (77 N. Y. Supp. 220), and defendant appeals. Reversed. The complaint avers that on October 20, 1867, the plaintiff was married to William B. Nichols, who died January 10, 1902; that on February 7, 1872, the said Wm.

Action by Louise. Gottschalk against Julius Jungmann and others to foreclose a mortgage. From a judgment awarding plaintiff a deficiency judgment, defendant Jungmann appeals. Reversed.

Submission of controversy under Code Civ. Proc. § 1279, by Townsend Jones, as executor, against Richard L. Hand and others, as to the construction of the will of Clifford A. Hand, deceased. Judgment directed.

Action for annulment of marriage by Gregorio' Di Lorenzo against Johanna Di Lorenzo. From an order denying defendant’s motion for alimony, she appeals. Reversed.

<p>Appeal from trial term.</p> <p>Action by James Toohey against the Ocean Steamship Company of Savannah. Judgment dismissing plaintiff’s complaint at the close of his proof, and he appeals. Affirmed.</p>

Action by Jordan Bronk against the Binghamton Railroad Company. From an order setting aside a verdict for defendant and granting a new trial, defendant appeals. Affirmed.

<p>Appeal from special term.</p> <p>Action by Helen France against Henry H. France. From a judgment for plaintiff entered on a decision of the court without a jury</p> <p>(77 N. Y. Supp. 1015), defendant appeals. Affirmed.</p>

Action by White, Corbin & Co. against William Martin Jones to enforce defendant’s statutory liability as a stockholder in the Rochester Lithographic & Printing Company. Verdict for plaintiff, and a motion for a new trial on exceptions was ordered to be heard in the appellate division in the first instance. Granted. See 34 N. Y. Supp. 203; 61 N. Y. Supp. 21.

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

Proceeding to settle the account of William S. Holmes, as executor of Mary E. Holmes, deceased. From a decree determining the ownership of a fund adversely to the executor, he appeals. Affirmed.

Action by John Cassidy against the Taylor Brewing & Malting Company. From a judgment on verdict for plaintiff, and from an order denying a new trial on the minutes, defendant appeals. Affirmed. Argued before PARKER, P. J., and SMITH, KELLOGG, CHASE, EURSMAN, and CHESTER, JJ.

Action by Lucy Bolster against the Ithaca Street Railway Compañía. From a judgment dismissing plaintiff’s complaint, and from an order denying a motion for a new trial, she appeals. Reversed. Plaintiff was driving upon a street called “South Avenue,” in the city of Ithaca. Her cutter was overturned by the tracks of the defendant’s road. The horse ran away and was killed, and damages for the injuries to the horse and cutter are what she seeks here to recover.

Action by Pierce Ryan against the city of New York to recover the difference between the amount paid for services as an employé in the department of public works and the amount he would have received had he been paid the prevailing rate of wages. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Action by Mary E. Corson against the city of New York. From a judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial, it appeals. Reversed.

Action by Edward L. Lewis against Josephine M. Robinson and others. From an order denying a motion for an order declaring plaintiff not entitled to costs, defendants appeal. Affirmed.

Submission of controversy between Mary L. Van Slooten, plaintiff, and the Fidelity & Casualty Company of New York, defendant, on agreed statement of facts pursuant to section 1279 of the Code of Civil Procedure. Judgment for plaintiff for the amount conceded by defendant.

Action to foreclose a mortgage, brought by the Washington Life Insurance Company against Mary S. Clark and others. Judgment of foreclosure and sale, which was had, and the surplus deposited with the county treasurer.

Proceeding by the people, on the relation of James Feeney, commissioner of public charities of the city of New York, against William Dershem, for abandoning his wife. From a judgment of the county court affirming a judgment of conviction, defendant appeals. Reversed.

Action for separation by Charles Earle against Helen Hicks Earle. From an order denying plaintiff’s motion for a bill of particulars of the defense and counterclaim set up in the answer, he appeals. Affirmed.

Summary proceedings to dispossess a tenant by Charles W. Hall against George C. Irwin. From an order of the appellate term, reversing the judgment of the municipal court in favor of defendant (77 N. Y. Supp. 91), he appeals. Reversed. This proceeding was begun in the municipal court to dispossess a tenant from rooms in the office building 140 Nassau street, and tried before a jury.

<p>Appeal from special term, New York county.</p> <p>Suit for divorce by Wallace B. Hunter against Minnie Hunter. From an order denying defendant’s motion for alimony and counsel fee; she appeals. Reversed.</p> <p>See 78 N. Y. Supp. 243.</p>

<p>2. Conversion —Check—Evidence—Sufficiency.</p> <p>Plaintiff gave defendant a check to deposit for collection. It came back unpaid, and he returned it to plaintiff. Suit was brought against the drawer in the name of defendant, plaintiff, however, securing bondsmen, and selecting the attorneys who took possession of the check. After this suit was commenced, defendant refused to proceed therewith, testifying that he did not know a suit had been commenced in his name till he was so informed by the attorney of defendant in that suit, and that he supposed, when he verified the complaint, that he was signing a bond for plaintiff, which he often did. After defendant’s refusal to continue the action, plaintiff demanded the check, which was then in possession of attorneys acting for plaintiff, but no demand was made that defendant should sever his nominal connection with the suit on the check. Defendant asked the attorney of defendant in that suit to stop it, but did not assign the check to him. HeldI not sufficient to show defendant guilty of conversion of the check. '</p>

<p>1. Divorce—Reduction op Alimony—Afpealabilitt op Order.</p> <p>An order modifying a decree of divorce by reducing the amount of alimony is appealable.</p> <p>2. Same—Matters por Consideration.</p> <p>On an application for reduction of alimony, the fact that the wife was being cared for in a hospital for the insane at a very moderate rate, and that the husband had necessarily incurred and must necessarily incur large expenses for. medical attendance in consequence of a serious illness, were proper matters for consideration.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by George L. Clifft, as executor of Mary Mercer, deceased, against Joab W. Mercer. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Mandamus by the people, on the relation of Katharine R. Callahan, against the board of education of the city of New York, to compel the board to reinstate relator in her position as teacher of the fourth grammar grade boys in public school No. 90 of the borough of Brooklyn, city of New York. Writ granted, and the board appeals. Affirmed.

<p>1. Award—Validity—Issues.</p> <p>Defendant contracted to furnish certain work in a building for a fixed price, and to make allowances if the amount fell short of certain specified measurements. Thereafter the parties contracted as to certain extrq work. On completion of the work they disagreed as to whether the second contract superseded the first, and submitted the disagreement to two arbitrators, and, on their failure to agree, to a third. That plaintiffs were-entitled to certain allowances if the first contract was in force was unquestioned, and was not submitted. lEeZd'i, that an award based on the-decision of the third arbitrator that the first contract was in force, and. that under it plaintiffs were not entitled to any allowance, was properly-set aside as based on a question not submitted to arbitration.</p> <p>1i 1. See Arbitration and Award, vol. 4, Cent. Dig. §§ 285, 329.</p> <p>2. Same—Deposit to Pay Claim—Injunction.</p> <p>Where, pending a hearing before arbitrators, plaintiffs deposited in bank, a sum sufficient to pay the claim of defendants if they succeeded in establishing it at such hearing, a judgment setting aside the award establishing such claim properly enjoined defendants from drawing such money from the bank.</p>

<p>- Appeal from special term, Kings county.</p> <p>Action by Henry C. Slee against the Kings County Savings Institution and others. ' From a judgment for plaintiff, defendant 'Katharine Slee appeals. Affirmed.</p>

<p>1. Parties—Substitution.</p> <p>Under Code Civ. Proc. § 723, authorizing the court, in its discretion, to allow amendments not prejudicial to the rights of the adverse party, by adding or striking out the name of a person or party, or correcting a mistake in such name, the court has no authority to permit a corporation to be substituted as party defendant in an action commenced against an individual who was president and owner of the corporation, on the supposition that' the cause of action was against that individual, and not against the corporation.</p>

Action by Julius Scheider, as administrator, against the American Bridge Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>Appeal from surrogate’s court, Kings county.</p> <p>In the matter of the estate of Joseph Pfarr, deceased. From a decree revoking letters of administration issued to Louis Pfarr (77 N. Y. Supp. 326), he appeals. Reference ordered.</p>

Application by Edward F. Croker for a peremptory writ of mandamus against Thomas Sturgis, as fire commissioner of the city of New York, requiring the latter to reinstate petitioner in the office of chief of the department, and to the.command of the uniformed force of the fire department of the city of New York. From an order directing the issuance of a peremptory writ as prayed, defendant appeals. Reversed. See 78 N. Y. Supp. 77.

Kalbfleisch, administrator of the estate of Catherine C. Kalbfleisch, deceased, to pay funeral expenses. From a decree requiring such payment, the administrator appeals. Reversed.

erin, New York county. Action by William Csatlos, an infant, against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>Appeal from trial term, Kings county.</p> <p>Action by Marguerite Svenson against Oscar H. Svenson to annul a marriage. From a judgment dismissing the complaint on the merits, plaintiff appeals. Affirmed.</p>

<p>Appeal from special term, Queens county.</p> <p>Action by William R. Mollineaux and others against George A. Mott. From an order directing that an attachment for contempt issue against Jerome B. Johnson, sheriff of Nassau county, unless he return an execution on the judgment for defendant, either satisfied or nulla bona, within 6o days after its receipt by him, he appeals. Modified.</p>

Condemnation proceedings .to acquire title to the Jerome avenue .approach to the New Macomb’s Dam Bridge, etc. Action by Euphemis A. Hawes, as executrix of the estate of G. P. Hawes, deceased, and another, against Mary Hynes. From an order denying an application to retax costs, plaintiffs appeal. Affirmed.

<p>Appeal from trial term, Westchester county.</p> <p>Action by William W. Baker against the Otis Elevator Company. Judgment dismissing plaintiff’s complaint at the close of his evidence, and he appeals. Affirmed.</p>

<p>1. Severance op Action—Waiver op Objection.</p> <p>An order for a severance of an action, reciting that it was made against the opposition of defendant R., does not, by the further recital that it is ordered, on consent of both parties, that the issues between plaintiff and R. be tried before a certain judge, show a waiver by R. of his opposition to the severance.</p> <p>2. Res Judicata.</p> <p>Judgment in an action by T. against an insurance company and the children of B. on a policy on the life of B., payable to B. or his estate, and assigned as security to T. under an’ agreement relating to this and other policies,—said judgment determining the rights of T.’s and B.’s children in the policy under the agreement,—is not res judicata in an action by T. against said children and another company on a policy of the latter company, on B.’s life, payable to “T., creditor of B.,’’ and not in existence when said agreement was made, but issued after failure of the companies issuing policies covered by the agreement.</p> <p>8. Joinder op Parties—Severance of Action.</p> <p>An order making certain persons defendants in an action on an insurance policy on the ground that they had an interest in the action does not prevent an order at the trial severing the action, so that there shall be one trial between plaintiff and the insurance company, and another between plaintiff and such defendants.</p> <p>4. Severance op Action.</p> <p>In an action on an insurance policy, the issues between plaintiff and the insurance company being whether the policy was issued to plaintiff and the premiums were paid, whether he was a creditor of B., on whose life the policy was issued, and whether the policy was due by the death of B., and the other defendants by their answer claiming a reformation of the policy and the payment of the amount thereof to them, it is error to sever the action, so that the company shall not be heard on the claim.of the other defendants, and they shall not be heard at the jury trial on the right of plaintiff to any recovery.</p>

Mandamus by the people, on relation of Felix Letts and others, against William M. Collier and others, constituting the state civil service commission, to compel the striking of the positions held by relators in the office of the register of Kings county from the competitive class, and to require them to place said positions in the exempt class, etc. From.an order granting a peremptory writ, the commission appeal. Affirmed.

Action by Susanna Stadermann against Henry Heins, executor of Louisa Schmidt, deceased. From a judgment dismissing the complaint on the report of a referee, plaintiff appeals. Modified.

Action by Lydia A. Sealey against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Marie J. Atkinson against Abraham Abraham and others. From an order vacating an order dismissing the complaint, and vacating the judgment entered upon such order, defendants appeal. Affirmed.

Appeal' from trial term, Montgomery county. Action by Willis W. Russell against Horace Inman and another, trading under the name and style of Inman Manufacturing Company. From a judgment in favor of plaintiff, defendants appeal. Reversed. 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.

<p>Appeal from trial term, Kings county.</p> <p>Action by Cate Bottjer against the "Supreme Council American Legion of Honor. From a judgment in favor of plaintiff (75 N. Y. Supp. 805), defendant appeals. Affirmed.</p>

Action by William H. Mogk against the New York & New Jersey Telephone Company. From a judgment for plaintiff, and an order denying defendant’s motion for a new trial, defendant appeals. Affirmed.

Proceeding for the final settlement of the estate of Mary E. Holmes, deceased. Erom an order adjudging William S. Holmes, executor, guilty of contempt for failure, to pay legacies, he appeals. Affirmed.

Action by Franklin M. Parker, as administrator, etc., against Archelaus H. Parsons. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. The plaintiff’s intestate, Erastus Parsons, died in May, 1899, aged about 90 years, leaving a daughter, Mrs. Phoebe Tuell, and a son, the defendant, Archelaus H. Parsons.

Action by Joseph H. Everett against Wade Hampton De Fontaine. From an order directing that the cause be placed on the trial term calendar in its regular order, plaintiff appeals. Affirmed.

<p>1. Interpleader—Supplemental Complaint.</p> <p>Where an order of interpleader is made,' on application oí the original defendant, permitting him to pay the money sued for into court, and directing that a third person be substituted as defendant, the supplemental complaint should show that the substituted defendant claims the money.</p> <p>3. Same—Demurrer.</p> <p>The complaint served, after an order of interpleader, substituting a third person as defendant, being by its own terms not only a supplemental, but an amended, pleading, is clearly a substitute for the original complaint, and therefore subject to demurrer, by the substituted defendant.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Almira Mooney, as administratrix of Joel Holcomb, deceased, against Benjamin E. Valentine. From an order permitting plaintiff without terms to serve an amended complaint, defendant appeals. Modified.</p>

Suit by Charles R. Spier against Charles L. Hyde and others. From an interlocutory judgment in favor of plaintiff, defendants appeal. Reversed. The Goodson Type Casting & Setting Machine Company was a corporation organized under the laws of the state of Minnesota.

<p>Appeal from special term, Dutchess county.</p> <p>Action by George E. Ward against Phillip Hoag. From a judgment in favor of defendant, plaintiff appeals. Reversed.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by George F. Hunt, as administrator of the estate of Ella W. Hunt, deceased, against Dora Sullivan. From a portion of an order denying a motion to. vacate an order for the examination of defendant before trial, defendant appeals. Reversed.</p>

<p>1. Judgments—Default—Application to Open.</p> <p>Where default was entered on an application for mandamus, and an application to open the default was made in good faith, and alleged that respondent’s counsel at the time of the default was absent from the county on his wedding trip, and that the two days allowed in respondent’s absence were insufficient for a proper presentation of his case, an ordfer denying the motion was erroneous.</p> <p>If 1. See Judgment, vol. 30, Cent. Dig. § 287.</p>

Mandamus by the people, on the relation of James McLaughlin, against the board of police commissioners of city of Yonkers and others. From a judgment directing the issuance of a peremptory writ, and from an order denying defendants’ motion for a new trial, they appeal. Affirmed.

Action by Catherine L. Meelcs, as executrix of Joseph B. Meeks, against Edwin B. Meeks, as executor of Joseph W. Meeks, Sr. Erom an order allowing plaintiff to amend her summons and complaint and make additional parties defendant, defendant appeals. Modified.

Mandamus by the people, on the relation of Patrick Fay, against John N. Partridge, as police commissioner of the city of New York, to compel the reinstatement of relator as detective sergeant, and to retire him on a pension of $i,coo a year. From an order denying an application for a peremptory writ, relator appeals. Affirmed.

Mandamus by the people, on the relation of William J. Lahey, against John N. Partridge, as commissioner of police of New York City, to compel the restoration of relator to the office of detective sergeant. From an order denying a motion for a peremptory writ, relator appeals. Affirmed.

Mandamus by the people, on the relation of Nathan B. Levenson, against James L. Wells and others, as commissioners of the board of taxes and assessments, to compel relator’s reinstatement as clerk in the department of taxes and assessments. From an order granting a peremptory writ, respondents appeal. Reversed.

Action by Mary A. Arnold, individually and as executrix of Justin Arnold, deceased, against Sophie J. Treviranus, and judgment for plaintiff, and, from an order denying a motion to cancel the same of record, defendant appeals. Modified.

Action by Jennie A. Batty, as administratrix, against the Niagara Falls Hydraulic Power & Manufacturing Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed. See (Sup.) 55 N. Y. Supp. 1088.

<p>Appeal from trial term, Orleans county.</p> <p>Action by Solomon Rosenstein and another against the Traders’0 Insurance Company of Chicago, 111. From a judgment in favor of plaintiffs, defendant appeals. Reversed.</p>

Action by Frank D. Izzo against Ira E. Ludington. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Samuel Davis was convicted of keeping live poultry within a populated district of the city of New York without a permit of the health department, in violation of the Sanitary Code, and he appeals. Affirmed.

Action by Julia Leonard, by David Leonard, her guardian ad litem, against Frances E. Donoghue. From an interlocutory judgment overruling a demurrer to the complaint, defendant appeals-Affirmed.

Exceptions from trial term, Kings county. Action by Alice Sheeron, administratrix of Francis Sheeron, deceased, against the Coney Island & Brooklyn Railroad Company. Heard on exceptions of plaintiff, directed to be heard in the first instance by the. appellate division on dismissal of the complaint at Kings trial term. Exceptions sustained.

Action by George T. Jones against the city of Buffalo. From a judgment dismissing the complaint on the merits, plaintiff appeals. Reversed.

<p>Appeal from trial term, Rockland county.</p> <p>Action by Louis J. Lediger against Calantha B. Canfield and others. From an interlocutory judgment for plaintiff, defendants appeal. Reversed.</p>

Action by Morris Cohn, by guardian ad litem, against Clarence M. Palmer. From a judgment for plaintiff and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Application by Henry A. Monfort for mandamus to Edward M. Grout, comptroller of the city of New York. From an order denying a motion for a peremptory writ, applicant appeals. Reversed.

Action by Frederick W. Clifford against the Press Publishing Company and Judson J. Worrell. From a judgment for six cents damages for libel, and from an order denying a motion for new trial, plaintiff appeals. Reversed. See 77 N. Y. Supp. 1123.

<p>Appeal from judgment on report of referee.</p> <p>Action by J. Henry Hentz against the city of Mt. Vernon. From a judgment in favor of plaintiff on a referee’s report, defendant appeals. Affirmed.</p>

<p>Appeal from special term.</p> <p>Action by John Hey and another" against Gerhard Coliman. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

Action by Agnes Smith against George Wetherill. From a judgment for plaintiff, and an order refusing to set aside the verdict and grant a new trial on the minutes, defendant appeals. Reversed.

Action by the people of the state of New York against George Sheriff & Son and another. From an order requiring plaintiff to serve an amended complaint, in which each and every of the causes of -action alleged therein shall be separately stated and numbered, plaintiff appeals. Affirmed.

Action by Michael Dwyer against the Hills Bros. Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Action by Charles Frazier against Clinton F. Swimm and others to foreclose a mortgage. From an order granted on motion of defendant John Graves vacating and setting aside a referee’s sale in foreclosure and annulling and canceling the referee’s deed and ordering a new sale, plaintiff appeals. Reversed.

Mandamus by the people of the state of New York, on the relation of Charles E. Weisz, against the Millard Division, No. 104, Order of Railway Conductors of America. From an order denying a motion to punish for contempt of court William Faulkner, as secretary and treasurer of defendant, relator appeals. Affirmed.

Action by the town of Green Island against Aaron P. Williams. From a judgment of the county court reversing a judgment of a justice’s court in favor of plaintiff, plaintiff appeals. Reversed.

Proceedings by the city of New York for the acquisition of certain lands for street purposes. From an order taxing the costs of the commissioners of estimate and assessment, the city appeals. Modified and affirmed.

Action by Carrie Ensign against the Central New York Telephone & Telegraph Company. From a judgment for plaintiff, and from an order refusing a new trial, defendant appeals. Affirmed.

Proceedings by Charles H. T. Collis, ■ as commissioner of public works of the city of New York, for the appointment of commissioners of appraisal and asssesment, in which Clarence Rundall filed claim for services as clerk to such commissioners. From an order denying a motion for retaxation of costs, the city of New York appeals. Reversed.

Application of James Cusack for an alternative writ of mandamus to-the board of education of the city of New York. From an order denying it, applicant appeals. Reversed.

<p>1. Schools—Illegal Removal of Principal—Acceptance of Other Position.</p> <p>One illegally removed from the position of principal of an evening high school does not defeat his right to contend against it by accepting and performing the duties of the position of principal of an evening elementary school, the salary of which is less than that of the other.</p>

<p>1. Alleys—Right of Way—Projections Over—Excavation—Injunction.</p> <p>Plaintiff owned a lot to the west and another to the north of an alley through which by deed he was granted the right of way; he “to_ have free and perfect egress and ingress thereto for the benefit of said adjoining lots, west and north of said alley.” Defendant constructed ail addition to his store, standing east of the alley, which extended over it at the height of 9 feet from the ground for the front 15 feet, and then dropped 4 feet, extending at that height to the rear of his store, and was excavating the alley so that the ground should be 9 feet below this lower projection. iR eld, that such projection and excavation! constituted an unlawful trespass on plaintiff’s rights, and should be enjoined,</p> <p>K 1. See Easements, vol. 17, Cent. Dig. §§ 123, 135.</p> <p>ü. Same—Acquiescence in Projections—Estoppel.</p> <p>Where at the time defendant commenced constructing an addition to his store, projecting over an alley through which plaintiff had the right of way, plaintiff’s son and partner protested, and was told that if he did not like it he could go to law, and within a week thereafter plaintiff obtained and served an injunction restraining the work, there was no such silent acquiescence as would estop him from maintaining the action.</p> <p>8. Same—Additional Burdens—Evidence.</p> <p>Evidence in an action to enjoin the obstruction of an alley examined, and held that it did not appear that plaintiff had burdened his right of way beyond the right given to him in his grant.</p> <p>4. Same—Nonuser—Abandonment.</p> <p>Where by deed the grantee, his heirs and assigns, were granted “free and perfect egress and ingress” over an alley, the existence of an archway 9 feet in height over the alley would constitute a mere nonuser, but not an abandonment, by the grantee, of the way above such height, and would not preclude him from insisting on a greater height whenever his necessities and convenience demanded.</p> <p>5. Same—Building Over—Heights.</p> <p>Where a superstructure is being built over an alley through which a right of way has been granted to an adjoining owner, it should be required to be constructed at such height as not to interfere with the most convenient use of the way by such grantee; the height to be determined as a question of fact.</p>

<p>1. Trial—Personal Injuries—Physical Demonstration—Propriety.</p> <p>On the trial of a personal injury action it is proper to permit plaintiff to attempt to write his name and to drink a glass of water in the jury’s presence, for the purpose of demonstrating the extent of his injuries.</p> <p>2. Personal Injury Action—Amount op Damages—Amendment op Com-</p> <p>plaint.</p> <p>On the trial of a personal injury case, the testimony being concluded, it is not an abuse of discretion to permit an amendment of the complaint increasing the claim for damages from ten to twenty thousand dollars.</p> <p>8. Same—Harmless Error.</p> <p>Any error in permitting an amendment of a complaint increasing the claim for damages for personal injuries is harmless where the recovery did not exceed the amount originally claimed.</p> <p>4 Same—Excessive Verdict.</p> <p>A verdict of $10,000 for personal injuries is not excessive, the evidence showing that plaintiff had sustained a fracture of two ribs, contusion on the whole chest, bruises on the back and head and hand, and had developed pleurisy from the rib fracture, and a nervous tremor, indicating chronic sclerosis of the spinal cord and brain, which was progressive and incurable.</p> <p>H 4. See Damages, vol. 15, Gent. Dig. §§ 372-374.</p> <p>Goodrich, P. J., dissenting in part.</p>

<p>1. Freight Elevator—Unguarded Space Between Floor of Elevator and Shaft—Injury to Licensee—Negligence.</p> <p>A truckman went to defendant’s building to deliver meat purchased by defendant, and notified defendant’s employes thereof, whereupon the meat was loaded on defendant’s freight elevator and raised to the fourth floor of its building. He had never delivered meat there before, and rode with defendant’s employés to the fourth floor, and assisted in unloading the meat. The floor of the elevator was close to the wall of the building, which formed a part of the elevator shaft at the ground floor; but, by reason of the fact that the wall was thinner as it approached the top, there was an unguarded space of 10% inches between the floor and the wall at the fourth story. He, in some manner not proved, stepped off the elevator and fell to the bottom of the shaft, receiving injuries from which he died. The shaft was light, and the floor of the elevator was dry. ■Held, that a finding of negligence was not justified.</p> <p>2. Same—Contributory Negligence.</p> <p>Where a licensee using a freight elevator stepped off the platforpa into an unguarded space between the elevator and the wall of the shaft without looking, such space being perfectly apparent, he was guilty of contributory negligence.</p> <p>If 2. See Negligence, vol. 37, Cent. Dig. § 90.</p> <p>Laughlin and Hatch, JJ., dissenting.</p>

Action by the Beacon Falls Rubber Shoe Company against John J. Burns. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. The action is brought to recover the purchase price of a stock of rubber goods delivered by the plaintiff to the defendant on or about the 23d day of September, 1899. The value of the goods delivered was $200.16.

<p>1. Deeds—Covenants—Building Restrictions—Enforcement—Change in Neighborhood.</p> <p>At the time of the execution of a deed to land, the property was in the suburbs, and the surrounding property consisted merely of detached or semidetached houses or villas set back some distance from the street line. Thereafter the surrounding property greatly changed in character; an orphan asylum occupied a block thereby, a brewery was erected on the next street, and fiat houses three stories in height were erected on the street line directly opposite the property conveyed, and a street car line constructed on the street. '-Helé, that the character of the surrounding property had so changed as to render inequitable the enforcement of a covenant in the deed prohibiting the erection of any dwelling house not set back at least 20 feet from the street line.</p>

<p>I. Independent Contractors—Negligence—Liability of Owner.</p> <p>Where a property holder had a deep excavation made, encroaching for some feet on the sidewalk, or at least abutting on it, and it was left wholly unguarded, and a passer-by fell in and was injured, he was liable for damages, though the work was done by an independent contractor.</p> <p>If 1. See Master and Servant, vol. 34, Cent. Dig. § 1203.</p> <p>3. Excavation in Street—Evidence—Sufficiency to Show.</p> <p>Evidence examined, and held- sufficient prima facie to show that an excavation made by defendant encroached on a street, within the purview of an ordinance requiring a person “digging down any road or street” to fence or rail the excavation.</p> <p>8. Same—Pedestrian Falling into Excavation—Contributory Negligence— Question for Jury.</p> <p>Whether plaintiff, who was injured by falling into an excavation encroaching, or at least abutting, on the sidewalk along which he was passing, was guilty of contributory negligence, held, under the evidence, to be a question for the jury.</p>

<p>Appeal from special term.</p> <p>Application by the people, on the relation of Robert Chappel, for a peremptory writ of mandamus to Gustav Rindenthal, as commissioner of bridges of the city of New York, to reinstate relator in his former position as bridge tender. From an order directing the issuance of a peremptory writ, respondent appeals. Affirmed.</p>

<p>Appeal from trial term, Orange county.</p> <p>Action by Revilo C. Wood, as guardian ad litem of Harry C. Wood, a minor, against E. & H. T. Anthony & Co. From an order allowing plaintiff to serve an amended complaint, defendant appeals. Affirmed. ' •</p> <p>See 78 N. Y. Supp. 1143.</p>

<p>1. Annuities—Assignment—Absolute or as Security—Evidence.</p> <p>Evidence, in an action to collect annuities under assignments claimed by plaintiff to be absolute and by defendants to have been as security for usurious loans, examined, and held to sustain the finding that the assignments were as security for loans which had been fully paid.</p> <p>2. Same—Trusts—Income from Real Property—Assignment Prohibited.</p> <p>Under 1 Rev. St. p. 730, § 63, providing that no person interested in a trust for the receipt of the rents and profits of lands can assign or in any manner dispose of such interest, a son to whom, by the direction of his father’s will, an annuity is to be paid by the executor out of the rents and profits received from the real property of the estate, cannot assign such annuity or any part thereof.</p>

<p>Appeal from special term, New York county.</p> <p>Action by James E. Montgomery against Robert N. Boyd and others. From a judgment dismissing the complaint, plaintiff appeals. Reversed.</p>

<p>1. Change oe Venue—Convenience op Witnesses.</p> <p>Where plaintiff resisted an application for a change of venue for convenience of witnesses, and showed that more witnesses resided in the county where the action was brought than defendant claimed resided in the county to which change was sought, an order granting the change was not justified.</p> <p>2. Same.</p> <p>Where plaintiff’s affidavit positively averred that the witnesses would testify to the facts alleged in the affidavit, it would be presumed that plaintiff knew that the witnesses had personal knowledge of the facts to which they were expected to testify, and the affidavit was not defective for failure to allege that plaintiff had talked with the witnesses and had received their assurances that they would so testify.</p>

<p>Í. Justices’ Courts—Land Titles—Removal of Cause—Change of Venue.</p> <p>Code Civ. Proc. § 2953, provides that, where an action has been discontinued in a justice’s court because the answer discloses a question of title to realty, the “new action,” which the plaintiff is entitled to bring in lieu thereof, is to be brought in either the county court or supreme court of the justice’s county, at the plaintiff’s election. ‘Heló) that, where the “new action” is commenced in the supreme court of the justice’s county, the defendant is not entitled, as a matter of right, to a change of venue to the county where the land is situated.</p>

Action by Daniel O’Shea, as administrator of the estate of Dennis O’Shea, against the Lehigh Valley Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals. Reversed.

Action by J. Frank Wright against the city of Mt. Vernon. From an order denying a motion to vacate a judgment for plaintiff, defendant appeals. Affirmed.

<p>Appeal from trial term, Kings county.</p> <p>Action by Harriet May against Thomas Ennis. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Annie Granz and another against Pincus Ronginsky:. From an order adjudging defendant in contempt of court (78 N. Y.. Supp. 260), he appeals. Affirmed.</p>

<p>1. Constitutional Law—“Due Process’’^-Deprivation of Liberty—Real Estate Agents—Whitten Authority.</p> <p>Laws 1901, c. 128, amending Pen. Code, § 640, by providing that in cities of the first and second class any person who shall offer for sale any real property without the written authority of the owner of such property, or of his attorney in fact, appointed in writing, or of a person who lias made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor, is unconstitutional, ■as a deprivation .of liberty and property without due process of law.</p>

Action by Isaac A. Hopper against the Empire City Subway Company, Limited. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

Action by the American Farm Company against the Rural Publishing Company. From an order striking out portions of the answer as irrelevant, defendant appeals. Reversed.

<p>Appeal from city court of Yonkers.</p> <p>Action by William E. Kelley and another against Lawrence Bros., a corporation. Judgment for plaintiffs, and defendant appeals. Modified.-</p>

Action by Samuel T. Shaw and others, executors of Julia A. Shaw,, deceased, against the Manhattan Railway Company and another. From the judgment (71 N. Y. Supp. 22) both parties appeal. Reversed.

Action by George Waldie against the Brooklyn Heights Railroad Company. From a. judgment for plaintiff, entered on a verdict in his favor for $io,ooo, and from an order denying a new trial, defendant appeals. Affirmed.

Action by Carrie Harrington, administratrix of William Best, deceased, against the Erie Railroad Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial on the minutes, defendant appeals. Affirmed.

Applications for mandamus by the people of the state of New York, —one on the relation of Joseph W. Kay; the other on the relation of Edward A. Dubey; both against J. Edward Swanstrom, as president of the borough of Brooklyn, city of New York. From an order in each case denying a motion for a peremptory writ, appeal is taken. Affirmed.

Action by John C. Willis against Frank H. McKinnon and others. From a judgment for plaintiff (75 N. Y. Supp. 770), defendants appeal. Affirmed. The premises were leased in 1886 for one year by Prentice W. Willis, as surviving partner of Travis & Willis, to defendant Prank H. McKinnon. Under such lease McKinnon went into possession, and has remained in possession ever since, having paid only one year’s rent.

Action by Martin Ruggles, as executor of the will of Jane Bush, deceased, against Ellen O’Brien, as administratrix with the will annexed of the estate of Charles E. O’Brien, and others. From an order denying defendants’ motion to have the complaint made more definite and certain, they appeal. Reversed. It appears by the complaint that one Jane Bush died in 1895, leaving a will.

Action by Charles A. Brown and another against the city of New York and another. From a judgment for defendants, plaintiffs appeal. Affirmed. On the 31st day of December, 1901, the minutes of the board of docks of the city of New York showed the following action: “The following permits were granted, to continue during the pleasure of the board; the work to be done under the supervision of the engineer in chief: Brown & Fleming.

Action by William J. Lane and another, as executors of the will of John G. Lane, deceased, against Elizabeth S. Albertson and! others. From a judgment for plaintiffs, defendants Albertson andi William J. Lane, individually, appeal. Affirmed in part, and reversed in part.

Appeal .from trial term, New York county. Action by James A. Sandies, an infant, by guardian, against Morris Levenson. From a judgment dismissing the complaint at the close of plaintiff’s case, he appeals. Affirmed.

Action by Theodore S. Miller, as a director of the Hondur-Americon Cattle, Agricultural & Colonization Company, against Peter T. Barlow and others. From an interlocutory judgment overruling a demurrer to the complaint, with costs, with leave to answer over on payment of costs, defendants appeal. Affirmed.

Mandamus by the people, on relation of Thomas Sweeney, against Thomas Sturgis, as fire commissioner, to compel respondent to execute the provisions of the labor law. From an order denying the writ, relator appeals. Affirmed.

From an order of the surrogate assessing a transfer tax on a bequest made by Eliza Ann Frail to the Protestant Episcopal Church Missionary Society for Seamen in the City and Port of New York, the society appeals. Reversed.

Certiorari by the people, on the relation of the Consolidated Gas Company of New York, against Thomas R. Feitner and others, commissioners of taxes and assessments of the city of New York, to review an assessment. From an order vacating the assessment (77 N. Y. Supp. 745), respondents appeal. Modified.

Action by Louis E. Kuster against the New York Times Company. From an order denying defendant’s motion for a bill of particulars before answer, it appeals. Affirmed.

Action by Robert S. Hall against the city of New York and others. From a judgment establishing the validity and priority of certain mechanics’ liens and claims filed against the city of New York, that defendant and the Western National Bank appeal. Affirmed.

<p>Appeal from trial term, New York county.</p> <p>Action by Nicholas A. Knox against the city of New York. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Mandamus by the people, on the relation of William J. Wieland, against Charles H. Knox and others, as civil service commissioners of the city of New York.

<p>1. Police Officers—Neglect of Duty—Failure to Suppress House of Prostitution—Evidence—Sufficiency.</p> <p>New York City Charter, § 315, declares it the duty of all members of the police force to carefully inspect all houses of prostitution, and to repress all disorderly conduct therein, etc.; and Pen. Code, § 117, makes it a misdemeanor for a police officer to fail to perform the duty imposed by the charter. In a prosecution of a police officer under these sections for failure to suppress a house of prostitution of which he had knowledge, evidence considered, and held sufficient to support a conviction.</p> <p>3. Same—Charge—Elements of Offense.</p> <p>In a prosecution under New York City Charter, § 315, and Pen. Code, § 117, for failure of a police officer to suppress a house of prostitution of which he had knowledge, a charge that it must be proven beyond a reasonable doubt that the house was one of ill fame, to defendant’s knowledge, and that with such knowledge he willfully neglected to suppress it, was sufficiently favorable to defendant.</p> <p>3. Same—Right to Arrest—Source of Information.</p> <p>In a prosecution under New York City Charter, § 315, and Pen. Code. § 117, for failure of a police officer to suppress a house of prostitution of which it was alleged he had personal knowledge, the court properly refused to charge that, though the defendant might have had the strongest moral certainty that the house was one of prostitution, yet if he did not know of somebody who could swear, of his own knowledge, to the facts of which defendant was morally certain, he had no right to make an arrest, since, under Code Cr. Proc. § 177, a peace officer may arrest any person whom he has reasonable ground to believe has committed a crime.</p> <p>4. Same.</p> <p>In a prosecution under New York City Charter, § 315, and Pen. Code, § 117, for failure of a police officer to suppress a house of prostitution of which he had knowledge, defendant requested a charge that he would not have been justified in making an arrest based upon no other evidence than that of the reputation of the house as one of ill fame, nor upon evidence insufficient in law to secure a conviction should he have made such an arrest. An instruction was given that unless defendant had evidence of the character of the house the prosecution must fail. Held that, as defendant’s duty was not limited to making arrests, the refusal of the request was not error, in view of the instruction given.</p> <p>5. Same—Reasonable Doubt.</p> <p>In a prosecution for misdemeanor, where the court charged that the defendant is entitled to the presumption of innocence throughout the case, until finally overborne by evidence which will satisfy the jury of guilt, and that this presumption renders it unnecessary for defendant to testify to his innocence, and to overthrow this presumption there must be evidence of guilt short only of absolute certainty, the refusal of a charge that “the presumption of innocence is legal proof or evidence” was not error; the charges given on that subject being ample.</p>

Action by Helen D. Ward against the St. Vincent’s Hospital of the City of New York. From a judgment for plaintiff, entered on a verdict, and from an order denying a new trial, defendant appeals. Reversed.

<p>1. Animals—Dogs—Value—Evidence.</p> <p>In an action for damages for killing a dog, evidence that it watched the house and yard, and, by plaintiff’s attorney as an expert, not having seen the dog, that it was “reasonably worth $25, if for nothing else than as a watchdog,” did not constitute sufficient basis for an estimation of the value of the dog.</p>

<p>1. Decedent’s Estate—Action by Creditors against Legatees—Prior Distribution op Estate—Necessity.</p> <p>Code Civ. Proe. § 1837, provides that an action may be maintained by the creditor of the decedent against the next of kin or legatees to recover from them to the extent of the assets paid or distributed to them. Held, that where, pursuant to an agreement between the executor and the legatees, the amount of the legacies was not paid to the legatees, but was placed in trust to their use for life, a creditor of the testator had no right of action against them under the statute, inasmuch as there had been no distribution.</p> <p>2. Same—Remedy op Creditor.</p> <p>Code Civ. Proc. § 2719, requires an executor to pay the debts of the deceased, including docketed judgments. Held, that where the claim of a judgment creditor against a testator was not paid by the executor, though presented, and the legacies were by agreement between the legatees and executor not paid to the legatees, but were placed in trust for them, the creditor might follow such fund and impress it with the lien of his judgment.</p>

<p>Appeal from special term, Putnam- county.</p> <p>Action by Arthur Naylor against Frank W. Loomis. From an order striking out the amended answer, defendant appeals. Affirmed.</p>

<p>Appeal from trial term, Saratoga county.</p> <p>Action by John C. Harris against the Ft. Miller Pulp & Paper Company to compel defendant to change its dam constructed across the Hudson river opposite plaintiff’s premises, and to maintain therein sluice and gateways in order that plaintiff might use water power furnished thereby. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p> <p>In 1882 one Nicholas "Vandenberg was the owner of certain property upon the west side of Hudson river in the town of Northumberland. Upon July 26th of that year he deeded to Daniel A. Bullard and others, their heirs and assigns, “the right to build a dam across said river, or any part of it opposite to said farm, and to abut the same against the west bank of said river on said farm, and to keep and maintain the same there forever.” The deed then concluded: “In witness whereof the party of the first part has hereunto set his hand and seal July 26th, 1882, and said Vandenberg reserves all water rights and privileges to use the same from said dam.” At the time of this grant a dam was erected across the east half of the river adjoining the property belonging to the defendant. After the grant this dam was extended to the west shore of the river abutting the land of the grantor in said deed, as permitted by said grant. The plaintiff is the successor of the grantor in that deed, and the defendant is the successor of the grantee. Prior to the commencement of this action, the plaintiff served a notice upon the defendant that he demanded that it make an opening in said dam which would permit him to avail himself of the water power, or that it permit him so to do. To this demand the defendant replied that, in view of the present condition, of the plaintiff’s farm and premises, the notice was regarded as preposterous. The reply then read: “Whatever rights were reserved by the deed from Vandenberg, referred to by you in your notice of October 29th, 1900, are not denied to his successors in interest. You are cautioned against any interference of the rights of the Ft. Miller Pulp & Paper Company.” The plaintiff thereupon served a notice upon the defendant that he regarded as a refusal their action either to modify the dam or to permit him to do so, to which notice no reply was served by the defendant. Thereafter this action was brought, in which the plaintiff asked that the defendant be required to make an opening in the dam so as to permit the plaintiff to enjoy the water rights belonging to him, and for damages and for general relief.</p>

<p>1. Fraudulent Conveyances—Insolvency of Debtor—Burden of Proof.</p> <p>A creditor in a suit to set aside as fraudulent an antecedent or subsequent conveyance by a debtor to his wife has the burden of proving that the debtor was insolvent at the time of the conveyance.</p> <p>V1. See Fraudulent Conveyances, vol. 24, Cent. Dig. § 804.</p> <p>2. Same—Evidence—Sufficiency.</p> <p>The mere proof that a conveyance by a debtor to his wife was voluntary is not sufficient, in a suit to set aside the conveyance as fraudulent as against creditors, to show the insolvency of the debtor at the time of the conveyance.</p>

Action by W. Preston Hix against the Edison Electric Light Company. From an order restoring the cause to the trial term calendar, defendant appeals. Reversed.

Action by Edward Bessenger against the Metropolitan Street Railway Company. From a judgment in favor of defendant, and from an order denying a motion for new trial on the minutes, plaintiff appeals. Reversed.

Action by the Charter Gas-Engine Company against Newton, J. Kellam and another. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed. 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.

<p>1. Cities—Water Supply—Condemnation—Damages—Basis.</p> <p>Riparian owners granted the proprietor of a dam lower down the stream “all the lands that would be overflowed by raising the water level twelve feet, only for the purpose of being flowed,” it being stipulated that if grantee should not use the land for that purpose, or should cease to so use it, the grantors or their heirs or assigns might buy it back. A city condemned the pond, and acquired the rights of all lower riparian owners for use as a municipal water supply. fleieE, that conceding the fee in the land deeded for flowage to be in the successors in title of the grantors, their interest was so intangible and practically valueless that a commissioner’s report establishing damages for its condemnation at a nominal sum could not be regarded as founded on an erroneous basis.</p> <p>3. Same—Commissioners’ Report—Presumption.</p> <p>In the absence of palpable error in the principle on which damages assessed by commissioners in condemnation proceedings are awarded, their conclusions will not be set aside.</p> <p>3. Same—Value as Basis for Water Supply.</p> <p>The value of the submerged land as the foundation for a reservoir for a municipal water supply, based on the value of the water per million gallons, was not a proper basis for assessment of damages, as, the city having acquired the right of the lower riparian owners to an unobstructed flow, the owners of the submerged land had merely a usufructuary right in the flowing water.</p>

Mandamus by the people, on the relation of the Richmond Hook & Ladder Company No. 4, against Edward M. Grout, comptroller of the city of New York. From an order granting a temporary writ, defendant appeals. Affirmed.

<p>.1. Fraudulent Conveyances—Husband and Wife—Loans—Intention.</p> <p>Though the law will not imply the relation of debtor and creditor between husband and wife from the mere transfer of her separate property to him, such relation may nevertheless be established, as against other creditors of the husband, by evidence that such was the intention of the parties at the time of the transfer.</p> <p>9. Same—Evidence—Sufficiency to Show Loan.</p> <p>In an action to set aside as fraudulent a conveyance from a husband to his wife, the evidence examined, and held to sustain a finding of the special term that previous transfers of money from the wife to the husband constituted loans by her to him.</p> <p>8. Same—Continuance in Possession—Effect.</p> <p>Continuance in possession by a grantor of real estate after conveyance to another, while a circumstance to be considered with the other evidence, does not of itself warrant the legal conclusion that the deed was fraudulent as to creditors.</p> <p>f.3. .See Fraudulent Conveyances, vol. 24, Cent. Dig. § 407.</p> <p>4. Same—Evidence—Sufficiency.</p> <p>A husband deeded to a third party, who at once reconveyed to the wife. The deeds were not recorded until three years after their execution and a year before a decree in an action then pending was entered against the husband. The husband, at the time of the transfer, owed his wife more than the property was worth, and the wife testified that she did not know he owed other debts. The property consisted in a one-third interest in a farm, the remaining two-thirds of which were ownéd by an old lady, who was anxious the husband and wife should live on it. After the conveyance the husband remained on the farm while his wife lived in town several years, until she disposed of her property there, when she also came out to the farm. ¡Held, that the deed was not fraudulent as to the husband’s creditors.</p>

<p>1. Streets—Establishment of Grade—Injury to Buildings.</p> <p>Evidence examined, and held insufficient to show that a building owned by one of the respondents had been erected prior to the establishment of the grade of the. street on which it abutted, so as to entitle him to an award of the damages caused to it by the grading of the street in accordance with such established plan.</p> <p>3. Same—Buildings Subsequently Erected—Owner’s Right to Damages.</p> <p>One who, subsequent to the establishment of the grade of a street and ‘ with notice thereof, erects a building on the street, is not entitled to an award of the damages caused to the building by the grading of the street in accordance with such established plan.</p>

<p>1. Negligence—Codefendants—Question fob Jury.</p> <p>In an action for injuries sustained by plaintiff while riding in an electric vehicle by reason of a collision between it and a beer truck, the owners of both vehicles were joined, as defendants. At the close of plaintiff’s evidence, and again at the close of the evidence of the vehicle company, a case was made against the owner of the beer truck, which required submission to the jury, but not as against the vehicle company. The latter moved for a nonsuit and for a directed verdict, but, after denial of the motions, remained in the case. Thereupon the owner of the beer truck presented evidence which tended to exonerate him from liability, and to show negligence in the vehicle company. <Eelc£, that the case against the vehicle company was properly given to the jury.</p> <p>2. Same—Instructions—Waiver of Error.</p> <p>Error of the court, in an action against two defendants for negligence, in charging that the jury might find one guilty and exonerate the other, or that they might find both guilty and charge both, though as a matter of fact the evidence did not make a case of concurrent negligence, was waived where no exception was saved.</p> <p>8. Same—Testimony—Admission for Special Purpose.</p> <p>The fact that testimony showing injury to plaintiff’s eye was not admissible, in an action for personal injuries, to show the injury as an element of damages because not pleaded, would not preclude its admission when offered solely as a manifestation of the injuries which plaintiff received, and which were properly pleaded.</p> <p>f 3. See Damages, vol. 15, Cent. Dig. 479.</p> <p>Ingraham, J., dissenting.</p>

<p>1. Habitual Drunkard—Discharge from Custody of Committee—Prior Adjudication—Effect as Res Judicata.</p> <p>Code Civ. Proe. § 2343, provides that, when a person for whom a committee has been appointed becomes competent to manage himself or his affairs, the court shall make an order discharging the committee, iHeld, that a finding by the jury in proceedings under this section that an habitual drunkard was not competent, which was subsequently confirmed by order of the supreme court, would not preclude habeas corpus proceedings a month later to secure the drunkard’s release from the committee’s custody, as in the interim she might have reformed. .</p> <p>2. Habeas Corpus—Habitual Drunkard—Expiration op Term op Detention.</p> <p>Code Civ. Proc. § 2032, provides that in habeas corpus the prisoner must he remanded to custody if he is detained by virtue of a final order of a competent tribunal made in a special proceeding, and the period of detention has not expired. that the fact that the petitioner was detained by virtue of such an order made in proceedings to declare her an habitual drunkard would not preclude her subsequent discharge on habeas corpus, where it appeared that she had ceased to be an habitual drunkard.</p> <p>8. Same—Discharge on Probation—Appeal—Right to Allege Error.</p> <p>Code Civ. Proc. § 2031, provides that in habeas corpus proceedings the court must make immediate examination into the facts, and make a final order discharging the prisoner if no lawful cause for imprisonment is shown. tHeld, that a committee of an habitual drunkard could not complain on appeal of the probationary character of an order releasing the drunkard from its custody, to be recommitted if she relapsed; the error, if any, not being prejudicial to the committee.</p>

<p>1. Freight Elevators—Accident—Negligence of Owner of Building.</p> <p>The owner of a building, who lets the various floors to different tenants, is not negligent, so as to be liable to a person injured by the unexpected movement of a freight elevator in which he was placing goods to take to one of the tenants; the elevator being operated by a rope, and it being impossible to start it except by pulling the rope in the elevator shaft, and the theory being that some one on another floor pulled the rope without giving warning; no similar accident having occurred in the four years the elevator had been in use; and the person injured testifying that he had operated it 20 or SO times before, and did not suppose it could be started by any one outside of the shaft, as he did not think such a person could pull the rope with sufficient force.</p>

Action by Annie Deutschmann against the Third Avenue Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Action by Samuel Bortz, an infant, against the Dry Dock, East' Broadway & Battery Railroad Company. From a judgment for plaintiff, and an order denying a motion for a new trial, defendant appeals. Reversed.

Submission of controversy between William B. Isham and another, executors of the will of Mary J. Walker, deceased, as plaintiffs, and the New York Association for Improving the Condition of the Poor and others, as defendants. Judgment for defendants. See 78 N. Y. Supp. 1121.

<p>1. Master and Servant—Personal Injury—Safe Place to Work—Proper Lighting—Duty of Master.</p> <p>An employé making excavation for an anchorage for a bridge was injured at night by a'fall of earth. The employer’s negligence was charged to consist in failure to properly light the scene of the work, so that the premonitory signs of the fall' of earth could be discovered. Relé, that it was the duty of the employer to actually light the place so as to make it safe for work, and this duty was not discharged hy merely furnishing lamps, material for new lights, and a competent electrician.</p> <p>2. Appeal—Point in Brief—Reference to Record—Sufficiency.</p> <p>A point in a brief that “the exception at folio 1269, comprising folio 1265 up to the exception. at folio 1269, presents reversible error,” is insufficient to present a question for review, the portion of the record referred to exhibiting a dialogue between court and counsel with reference to the instructions.</p> <p>8. Master and Servant—Safe Place to Work—Change in Condition—Admissibility of Evidence.</p> <p>In an action for injury to a workman due to the insufficient lighting of the scene of his labor, evidence of the condition or placement of lights after the accident, brought out in rebuttal and by contradictions among the witnesses, merely to fix the time of the accident and the conditions then existing, is properly admitted.</p> <p>4 Same—Ordinary Method of Doing Work.</p> <p>In an action for injury to a workman, due to the insufficient lighting of the place of work, evidence of the ordinary method of doing that character of work, and that the employer was not pursuing such method, is admissible.</p>

• Action by Mary Darby against the Metropolitan Street Railway Company. From an order restoring the cause to the general trial calendar, defendant appeals. Affirmed.

Action by Johanna Copeland against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion on the minutes of the court for a new trial, defendant appeals. Affirmed.

<p>Appeal from trial term, Oneida county.</p> <p>Ejectment by Adolph Lowenberg against Emma Brown. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

Action by Moe Aronson against Meyer Greenberg, seeking an accounting and other relief. From the final judgment entered on the report of a referee, defendant appeals. Affirmed.

<p>Appeal from municipal court of borough of Manhattan.</p> <p>Action by Alice D. Sherman against John J. Rudin. From a judgment of the municipal court in favor of defendant, plaintiff appeals. Reversed.</p>

Action by William Euclid Young against Francis L. Fames, as president of the New York Stock Exchange. From a judgment dismissing the complaint on the merits, plaintiff appeals. Affirmed. See 53 N. Y. Supp 678.

Judicial accounting of Isaac A. Hopper as one of the executors of the estate of Isaac E. Hoagland, deceased. From a surrogate’s decree confirming a referee’s report overruling exceptions filed by Sarah Hoagland French to the executor’s account, she appeals. Affirmed. See 64 N. Y. Supp. 920.

' Action by Marcus Kronfeld, as trustee in bankruptcy of Abraham Hammel, against Herman Liebmann. From an order directing plaintiff to give security for costs resettled by a subsequent order denying plaintiff’s motion to vacate the order, plaintiff appeals. Reversed.

Coler, as comptroller of the city of New York, in dismissing the relator from the office of collector of assessments and arrears. Writ dismissed.

<p>Appeal from municipal court, borough of Manhattan, Fourth district.</p> <p>Action by William J. Keiner and others against Samuel D. Folsom. From a judgment in favor of defendant, plaintiffs appeal. Reversed.</p>

Ejectment by Margaret B. Mott and another against the Ft. Edward Waterworks Company and another. From a judgment dismissing the complaint, plaintiffs appeal. Affirmed. The plaintiffs seek to recover from the defendant, in an action of ejectment, a parcel of land that was owned by their father at the time of his death. They make them title as his only heirs at law.

Action by the trustees of the Methodist Episcopal Church and Society in Cutchogue against Charlotte M. Reeve and others. From a judgment in favor of plaintiff, defendant. Reeve appeals. Affirmed.

<p>1. Street Railroads—Injury to Child— Crossing Track — Contributory Negligence—Intervening Cause.</p> <p>In an action against a street railway company for the killing of a child while attempting to cross the company’s tracks, an instruction that, if the jury found the child was guilty of contributory negligence, the question remained whether defendant’s driver, by the exercise of reasonable care and prudence, might have avoided the consequence of the child’s negligence, was erroneous, where there was no intervening circumstance, and the only issues presented were the negligence of the •. defendant and the contributory negligence of the child with respect to one set of circumstances.</p>

Bill by Francis S. K. Seagrist against Perez M. Stewart, as superintendent of buildings, etc., and Robert W. De Forrest, as tenement house commissioner, etc., to restrain the enforcement of certain provisions of the tenement house act against plaintiff. From an order granting an injunction pendente lite, defendants appeal. Modified.

Action by Carrie Sutter, as administratrix of George F. Sutter, deceased, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Mandamus by the people of the state of New York, on the relation of James H. Smith, against Henry S. Clarke, as mayor of the city of New Rochelle, and others, to compel the issuance and payment of a warrant for printing. From an order granting a peremptory writ, defendants appeal. Reversed.

Application by Margaret Owens for leave to remove the body of Ruth Owens, deceased, from the Albany Rural Cemetery. From an order granting the petition, the cemetery appeals. Reversed. 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. His wife, Margaret Owens, was a Roman Catholic.

Action by Bessie Smith, an infant, by her guardian, against the City Realty Company of Rochester. From an order granting a motion for a new trial after verdict in favor of plaintiff, plaintiff appeals. Affirmed.

Ejectment by Frank P. Crouch against Frank Nast and another. Verdict was directed for plaintiff for the relief demanded. Defendants move for a new trial on exceptions directed to be heard in the first instance by the appellate division. Exceptions allowed.

Action by Harry O. Bateman against Mark J. Straus and another. From an order denying a motion to strike out portions of the complaint, and to make the complaint more definite and certain, defendant Straus appeals. Reversed.

<p>Action by the American Mettle Company against the Exposition Carting Company.</p>

In the matter of the application of the board of education, etc., relative to acquiring title to certain lands on Bedford avenue.

<p>Action by Isabella Beattie against the Schenectady Railway Company.</p>

<p>Action by Charles L. Beale against the New York & Queens County Railway Company.</p>

<p>Action by the city of New York against the Broadway & Seventh Avenue Railroad Company and others. From an interlocutory judgment overruling demurrers to the complaints, defendants appeal. Reversed in part.</p>

Action by the city of New York against the Central Park, North & East River Railroad Company and others. From an interlocutory judgm'ent overruling demurrers to the complaints, defendants appeal. Reversed in part.

<p>Action by the city of New York against the Firty-Second Street & Grand Street Ferry Railroad Company and others. From an interlocutory judgment overruling demurrers to the complaints, defendants appeal. Reversed in part.</p>

Action by the city of New York against the Ninth Avenue Railroad Company and others.' From an interlocutory judgment overruling demurrers to the complaints, defendants appeal. Reversed in part.

<p>Action by Francis Clark against John Lyon.</p>

<p>Action by Albert M. Coyle and another against Joseph Bielinsld.</p>

In the matter of the judicial settlement of the account of William B. Davenport as administrator of the goods, chattels, and credits which were of Eliza T. White, deceased.

<p>Action by Frank A. Dayton against the American Steel Barge Company.</p>

<p>Action by Jennie. A. Depew, as administratrix, etc., against the Erie Railroad Company.</p>

<p>Action by Octavius O. Cottle and another against the county of Erie and another.</p>

Action by Dina Fogelson, an infant, by JennieWaldman, her guardian ad litem, ■ against Morris Levenson. From an order denying a motion to set aside an ex parte order, made before institution of the action, allowing plaintiff to sue in forma pauperis, and from an order vacating an order requiring plaintiff to file security for costs, defendant appeals. Affirmed.

<p>Actions by George Doheny and another as, etc., against Stewart Worden, and the Salt Springs National Bank of Syracuse against Leonard Worden.</p>

Action for partition by the German-American Bank of Rochester against Leopold Stein and others. .Interlocutory judgment directing a sale of the premises, and certain defendants appeal. Modified. W. Martin Jones, for appellants.

<p>Action by Jacob Grossman against Samuel Sheindelman. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Action by Louise Gottschalk against Julius Jungman, impleaded with others, to foreclose a mortgage. From a judgment awarding plaintiff a deficiency judgment, defendant Jungman appeals. Reversed.</p>

<p>Application to fix tax without appraisal granted.</p>

<p>Action by Blanche Hutchinson Harris against Charles Taylor Harris.</p>

<p>Action by the Industrial & General Trust Company against A. Kennedy Tod and another. From an order allowing an amendment of the complaint, defendants appeal. Affirmed.</p>

<p>Action by James L. Jacobs against the St. Regis Paper Company.</p>

<p>Action by Christina Johnson against John J. Manning, as president, etc.</p>

<p>Action by William P. Knowles against the Pennsylvania Steel Company. W. C. Trull, for appellant. L. L. Kellogg, for respondent.</p>

<p>Action by-Caroline Paige Lansing against the Schenectady Railway Company.</p>

In the matter of the application of Anna Luongo for leave to sue as a poor person. Anna Luongo, an infant, by Ferdinando Luongo, her guardian ad litem, respondent, against Johnston Livingston, as president of the National Express Company, appellant.

<p>Action by Dennis Maher against the Home Insurance Company of New York.</p>

<p>Action by Lillian C. Morrison against Ormond G. Smith and others. T. H. Silkman, for appellants. J. A. Washburn, for respondent.</p>

<p>Action by John H. Nash against the New Jersey Steamboat Company.</p>

<p>In the matter of the probate of the last will and testament of Harriet C. Nash, deceased.</p>

In the matter of the application of Oneonta, Cooperstown & Richfield Springs Railway Company for the appointment of commissioners 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, in the county of Otsego and state of New York.

<p>In the matter of the application of the Oneonta, Cooperstown & Richfield Springs Railway Company for, the appointment of commissioners to determine whether a street-surface railway ought to be constructed and operated in and upon Lake and Church streets in the village of Richfield Springs, in the county of Otsego and state of New York.</p>

<p>Action by Joseph L. Page, as receiver, etc., against Ursula Z. Canfield.</p>

Robert L. Martin and another were prosecuted for perjury. From an order allowing a demurrer to the indictment, the people appeal. See 76 N. Y. Supp. 953. Howard S. Gans, for the People. Franklin Bien, for respondents.

<p>Proceedings by the people of the state of New York, on the relation of John S. Brundage, against John J. Scannell, as fire commissioner of the city of New York.</p>

<p>Mandamus by the people, on the relation of William Colby, against John N. Partridge, as commissioner of police of the city of New York, and others, to compel the restoration of relator to the office of' a detective sergeant. From an order denying a motion for a peremptory writ, relator appeals. Affirmed.</p>

<p>Proceedings by the people of the state of New York, on the relation of William Traphagen, against Henry S. Clarke, as mayor, etc., and others.</p>

<p>Action by the Rapid Safety Fire Extinguisher Company against the Hay-Budden Manufacturing Company. J. C. Foley, for appellant. W. F. Severance, for respondent.</p>

<p>Action by Charles A. Roux against Emma Rothschild and another. From a judgment for plaintiff (75 N. Y. Supp. 763), the defendant Rothschild appeals. Affirmed.</p>

<p>Action by Sydney, S. Schuyler against Alfred W. Booth and another.</p>

<p>Suit by W. Stebbins Smith against Martin Schwarzler. From an order continuing a temporary injunction, defendant appeals. Affirmed.</p>

In the matter of the application of Celestia L. Strait for a substitution of attorneys in the place of Reynolds, Stanehfield & Collin. Respondent attorneys, in pro. per.

<p>Action by Louise A. Thompson against the Schenectady Railway Company.</p>

<p>Action by Belle Van Epps against the Schenectady Railway Company.</p>

<p>Action for rent by Henry G. Valentine against Warren M. Healey and another. From a judgment entered on direction of the court dismissing the complaint after trial at trial term,, plaintiff appeals. Reversed.</p>

<p>Action by Jacob V. Vrooman against the Schenectady Railway Company.</p>

<p>Action by Charles L. Zimmerman against Emil B. Meyrowitz. From a judgment adjudging defendant’s answer to be a sham, and awarding judgment to plaintiff upon the remainder of the amended answer for the relief demanded in the complaint, and also from the order striking out the defense contained in the answer and directing judgment for the plaintiff, defendant appeals. Reversed. See 69 N. Y. Supp. 800.</p>

<p>Action by Andrew Ziegler and another against James Van Demark and others.</p>

<p>Action by Ohauncey C. Woodworth, as, etc., against Bryan Hardin, impleaded, etc.</p>