Volume 8 — New York Appellate Division Reports

Motion by the defendant, The MaeDougall & Southwick Company, for a new trial on a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdict of a jury in favor of the plaintiff, rendered by direction of the court after a trial at the Monroe Circuit on the 26tli day of November, 1895.

<p> Executrix, when she will he denied commissions—costs and allowances, when not properly charged against the estate. </p> <p>Where the will of a testator gives to his widow merely the income of his residuary estate for life, the remainder being bequeathed to certain legatees, and the widow treats the estate as though it had been devised to her absolutely; makes no inventory nor appraisal; does not have set off to herself in the manner provided by statute the property to which she is entitled as a widow; keeps no account as executrix; makes no division of the principal from the income, and mingles' the money and property of the estate with her own, she is not entitled to commissions, nor after her death can any be claimed by her executor in her right.</p> <p>Where the executor of a deceased executrix of her husband’s estate fails, for more than four months after he has qualified, to make up an account showing the condition of the property of his decedent’s husband, and when the administrator with the will annexed institutes proceedings to compel him to account, renders an account which the administrator surcharges by the addition thereto of some §800, it is improper for the surrogate to decree that the allowances, costs and disbursements of both parties to the proceeding should be paid out of the estate of the husband.</p>

Appeal by the defendant, Thomas Hall, from a judgment of the Court of Sessions of Seneca county, entered in the office of the clerk of the county of Seneca on the 5th day of June, 1895, affirming a judgment of the Special Sessions of the town of Tyre, Seneca county, convicting him of a violation of the Game Law (Chap. 488 of the Laws of 1892, as amended by chap. 573 of the Laws of 1893).

<p>Complaint—an allegation that the plaintiff is an administrator, not contested nor proved on the trial, may be proved by the record, upon appeal — interest after default is in the nature of damages.</p> <p>In an action brought by an administrator, the allegation as to his appointment as such was put in issue by the answer, and no proof of his appointment was given on the trial, nor was any question raised in respect thereto.</p> <p>Held, that it was competent for the plaintiff and respondent, on an appeal from a judgment in his favor, to file with the appellate court a certified copy of the decree appointing him administrator, and that this would support the judgment in respect to that allegation.</p> <p>Where the principal is not paid when due, according to the terms of a mortgage, interest after its maturity is recoverable as damages, and at the rate fixed by law, and not at that designated in the mortgage.</p>

<p> Will —permission given to a life tenant ‘ ‘ to draw from the real estate ”—rights of the life tenant thereunder. </p> <p>The will of a testator gave all his personal estate to his widow, to have and to hold during her life, to be subject to her disposal by will or otherwise at her death, and further provided: “ And should it be necessary for her comfort to draw from the real estate, she is authorized to do so. The real estate I give and bequeath to my friend Alfred M. Douglass, that is, what may remain after the death of my said wife Sally Maria.”</p> <p>Held, that the wife alone was to determine as to the necessity of using the real estate, and .that the remainderman could not control her decision.</p>

Appeal by the defendant, Fred W. Hudson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 29th day of April, 1896, upon the decision of the court rendered upon a motion made at the Erie Special Term for judgment on the ground that the answer interposed by the defendant, Fred W. Hudson, was frivolous, with notice of an intention to bring' up for review upon such appeal an order entered in said…

<p>Nonsuit—presumption on appeal — trespass to realty—proof of adverse possession.</p> <p>Upon an appeal from a judgment of nonsuit the appellant is entitled to that construction of the evidence which is most favorable to him, and to have the benefit of all the inferences dcducible therefrom.</p> <p>An action for the recovery of the damages resulting from a trespass upon real estate brought in question the title to a strip of wild woodland lying between the lands of the plaintiff and those of the defendant.</p> <p>It was shown that, in 1885, the defendant entered into a contract for the purchase of this strip of land from the owner, which was never completed, and that in 1887 the owner conveyed the strip to the plaintiff, who thereupon erected a fence between the strip and the premises of the defendant. The only acts of possession proved upon the part of the defendant were that from time to time the defendant permitted his cattle to go upon this strip, and that he cut wood thereon; and that for two or three seasons he cultivated a very small part of it, and that after the erection of the fence by the plaintiff, he, from time to time, tore down portions of it, drove his cattle upon and cut wood from the strip.</p> <p>Held, that a dismissal of the complaint was erroneous, as the jury might properly have found that the plaintiff owned the strip;</p> <p>That, if so, the plaintiff was entitled to maintain an action under section 1667 of the Code of Civil Procedure against the .defendant as a person who had cut down or carried away wood upon the land of another, without the owner’s leave.</p>

Appeal by the defendants, Daniel Hays and 'another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 26th day of November, 1895, from the decision of the court rendered after a trial at the Fulton Circuit before the court without a jury.

Appeal by the defendant, John W. Warner, as receiver of the First National Bank of Watkins, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 22d day of July, 1895, upon the decision of the court rendered after a trial at the Schuyler Special Term.

<p>Corporations — action for sequestration — the action is equitable and in the nature of a creditor’s bill—persons to whom, the directors ham illegally transferred property of the corporation may be made defendants,</p> <p>A proceeding under section 1784 of the Code of Civil Procedure is an equitable action, and a judgment creditor of a corporation seeking to sequestrate its property to satisfy bis judgment may, if a fraudulent transfer of the corporate property is alleged, join as parties defendant the persons who hold such property in their possession.</p> <p>In analogy to the procedure under a creditor’s bill in equity, the complaint, seeking to reach corporate assets, may unite claims for property in the possession or under the control of the judgment debtor, with demands against other parties who have obtained possession of the property of the corporate judgment debtor by fraudulent transfers thereof.</p>

<p>Savings bank pass book — an account with a husband or wife, or the survivor, goes to the surviving wife — a delivery of the book to her is unnecessary.</p> <p>An entry in a savings bank pass book, representing moneys deposited by a husband, reading “Albany Savings Bank, in account with Mrs. Alida P. Bell, or James C. Bell, her husband, or the survivor of them,” constitutes the parties joint owners of the sum deposited, and entitles the wife, if she survives her husband, to take the deposit.</p> <p>It is not necessary to the validity of the gift that the pass book should be delivered to, or remain in the possession of, the wife during her lifetime.</p>

<p>Appeal by the defendant, William J. Turck,' from a judgment of the County Court of Ulster county in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 11th day of January, 1895, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of January, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Landlord and tenant—action for rent—answer that the premises became untenantable because the water pipes burst ■—construction of chapter 845, Laws 1860 — a surrender necessary—consideration of a promise to pay the tenant for remaining on the premises — of a promise to release rent, on a surrender and a payment of a certain sum.</p> <p>An answer, interposed in an action brought to recover for the rent of a hotel, alleging that the demised premises became untenantable, because the water pipes of the hotel burst and the water supply failed, but not alleging that the landlord had covenanted to make repairs to the demised premises, does not present a defense.</p> <p>The provisions of chapter 845 of the Laws of 1860, relieving a tenant from the payment of the rent of a building, which, without fault or negligence upon his part, shall have been destroyed or so injured by the elements or other cause as to be untenantable, have reference to a destruction or injury resulting from some sudden and unexpected action of the elements, or other cause, and not to gradual deterioration and decay, produced by the ordinary action of the elements.</p> <p>A tenant, even in a case coming within the statute, is not discharged from his obligation to pay rent, unless he surrenders up the possession of the demised premises.</p> <p>A counterclaim in an action brought to recover rent, alleging that, after the demised premises had become untenantable, the landlord had promised the tenant a certain sum of money if he would remain in possession thereof, must also state facts establishing the tenant’s right to vacate the premises, and what valid considerations existed to sustain the promise of the landlord.</p> <p>A separate defense to an action for rent, which alleges a new agreement under which the landlord agreed to release the tenant from the rent already due and payable, provided that he surrendered the premises and paid the landlord a certain sum, coupled with an allegation that the tenant had surrendered the premises, and had offered to pay the landlord a part of the sum, is insufficient as a defense, because the tenant fails to show that he has performed his part . of the new agreement.</p>

<p>Appeal by Adel Carney and others from an order of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the 24th day of February, 1896, which modified and affirmed as modified, an appraisal made of the estate of Samuel Westurn, under the Transfer Tax Law.</p>

<p>Will — devise to one and a devise over if the first taker dies without issue—when the death must occur.</p> <p>The rule is well settled that where there is a devise to one and a bequest over to a third person, depending not upon the event of death simply, but upon death without issue, the death referred to is one occurring in the lifetime of the testator. But this rule applies only where the context of the will contains nothing to show a contrary intention upon the part of the testator; and where it appears, from the language and provisions of the instrument, that the testator referred to a death either before or after his own, his intention will prevail, and such intention may be inferred from slight circumstances.</p> <p>A testator provided in his will as follows: “ I give, devise and bequeath to my son, George W. Hall, subject to the provisions contained herein, my farm heretofore occupied by him, situate in the town of North Norwich, and consisting of about 160 acres of land, with the appurtenances; but in case of the death of my said son George without leaving lawful issue him surviving, then my said farm to go to my grandchildren, who are the children of my deceased son, Henry 0. Hall, namely, Mary E. Hall and Charles Hall and Henry 0. Hall, share and share alike therein.”</p> <p>Held, that the son George W. Hall took a conditional estate in fee in the farm, which was subject to be reduced to a life estate if he died without leaving lawful issue him surviving;</p> <p>That the contingency mentioned in the will was that of the testator’s sons surviving him and afterwards dying without issue;</p> <p>That the grandchildren, children of Henry 0. Hall, would become entitled to an estate in fee in the event of the death of George W. Hall without leaving lawful issue him surviving.</p>

Appeal by the plaintiff, Frederick F. Proctor, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 26th day of November, 1895, upon the report of a referee; also from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 26th day of November, 1895, granting the defendant an extra allowance.

Appeal by the defendant, The Standard Life and Accident Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 17th day of June, 1895, upon the verdict of a jury rendered after a trial at the Sullivan Circuit, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Albert Rathbone and others, from an -order of the Supreme Court, made at the Albany Special Term and •entered in the office of the clerk of the county of Albany on the 2d day of January, 1896, continuing in force a preliminary injunction granted ex jpa/rte, and also from an order modifying said order «entered in said clerk’s office on the 4th day of January, 1896.</p> <p>The complaint in this action alleged, among other things:</p> <p>“ That the (plaintiffs’) premises above described receive now, and for many years last past have received, the water supply from the water board of the city of Albany and from mains laid in Broadway in said city, and that the supply of water so received is the only method by which the tenants of said premises can be supplied with water. * * *</p> <p>“That heretofore and in or about the month of November, 1894, the said defendant, under and by virtue of the authority by law vested in it, proceeded to levy a tax on said building for the water for the ensuing year, commencing December 1, 1894, and ending December 1, 1895, and thereafter and in the month of December caused a notice to be sent to the owners of said building setting forth the amount of the tax levy for the ensuing year as aforesaid, and placed the amount of tax for such term at the sum of $15, which sum, less the usual and legal discount of one per centumj the plaintiffs paid to the receiver of taxes of the city of Albany, on the second day of January, 1895, and received from said receiver a receipt for the payment of the same.</p> <p>“That on or about the nineteenth day of Rov ember, 1895, these plaintiffs received a notice from the defendant stating, amongst other things, that the water supply to said building would, unless plaintiffs paid another and greater amount of money, be cut off.</p> <p>“ That the shutting off of the supply of water to the premises aforesaid wmuld work a great hardship to the tenants therein, and would produce great and irreparable injury to the .plaintiffs and their property affected thereby.”</p> <p>The board of water commissioners determined, by the placing of a water meter on the plaintiffs’ premises, that the amount of water used therein was in excess of the amount allowed by that board for buildings of that description.</p>

Appeal by tlie defendants, John 0. Pearson and Mary K. Pearson, by their guardian ad litem, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 27th day of January, 1896, upon the decision of the court confirming the report of a referee, as adjudges and directs that the piece or parcel of land first described in the complaint in this action, and first described in the said judgment, and…

Appeal by the defendant, The Bunnell and Eno Investment Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on the 31st day of July, 1895, upon the decision of the court, rendered after a trial at the Tompkins Special Term.

Appeal by the plaintiff, Samuel Sloan, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chemung on the 25tli day of July, 1895, upon a decision of the court rendered after a trial at the Chemung Equity Term dismissing the plaintiff’s complaint upon the minutes.

Appeal by the defendant, The Congress Spring Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Saratoga on the 28th day of October, 1895, upon the verdict of a jury rendered by direction of the court after a trial at the Saratoga Circuit, and also from an order entered in said clerk’s office on the 18th day of October, 1895, denying the defendant’s motion for a new trial made upon the minutes.

<p>Contract — when a/mbiguous, resort may be had to surrounding facts and to thepractical construction put upon the contract by the parties—parol evidence is admissible—reformation unnecessarily ordered.</p> <p>Where a contract.is ambiguous, resort may be had, in aid of its proper construction, to the surrounding facts and circumstances as they existed when the contract was made.</p> <p>In such a situation, it is proper to consider the practical construction which the parties themselves have given to the contract.</p> <p>Where there is a latent ambiguity in the terms.of a contract, or arising because the subject-matter thereof needs definition, or because of extrinsic facts causing doubt, parol evidence is admissible to aid in the solution of the doubt.</p> <p>Where a reformation of a contract is asked and is granted, although no case for a reformation was made, the contract as written being capable of a construction which will accord with the intention of the parties thereto, the person who, Upon an appeal, objects to the reformation must show that he was injured by it, as there is no presumption that he was thus injured.</p>

Appeal by the plaintiffs, Cordelia ]VI. Pitney and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 28th day of January, 1895, upon the decision of the court rendered after a trial at the Saratoga Special Term.

Appeal by the defendant, The St. Paul Fire and Marine Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 9th day of January, 1896, upon the verdict of a jury rendered by direction of the court after a trial at the Ulster Circuit, and also from an order entered in said clerk’s office on the 9th day of January, 1896, denying the defendant’s motion for a new trial made upon the…

<p>Appeal by the plaintiff, Barrington King, as receiver, etc., of Samuel Schuyler, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Albany on the 15th day of January, 1895, upon the decision of the court rendered after a trial at the Albany Special Term dismissing the plaintiff’s complaint upon the merits as to the defendant, the Holland Trust Company.</p>

<p>Albany — a claim against the city, resulting from an injury to the person—its Imo department has three months within which to consider the claim before suit can be brought — the general act, chapter 572 0/I886, does not apply.</p> <p>Under the charter of the city of Albany, as amended by chapter 286 of the Laws of 1891, all claims against the city for damages for injuries to the person, claimed to have been caused or sustained by defects in the streets of the city, must be presented to the common council in writing within three months after he injury is received, and, after such, presentation, the law department of the city is required to report thereon within three months from the time when the claim is referred to it.</p> <p>The charter also provides “that no action or suit shall he brought or maintained until after the expiration of forty days after the said claim shall have been presented to the said common council as herein provided for, and said common council shall have neglected or refused to make any adjustment or payment thereof.”</p> <p>Held, that unless the law department sooner reports upon the claim, an action, predicated upon the claim and begun before the expiration of the three months, was prematurely brought;</p> <p>That the general act applicable to municipalities and directing the procedure in. the matter of such claims, and known as chapter 572 of the Laws of 1886, does not override the special provisions of a city charter in a case in which the sections of the charter in question were enacted after the general act of 1886.</p>

Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court, in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 28th day of September, 1895, upon the verdict of a jury rendered after a trial at the Rensselaer Circuit, and also from an order bearing date the 26th day of September, 1895, and entered in said clerk’s office, denying the defendant’s motion for a new trial made…

<p>Appeal by the plaintiff, James H. Bailey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 13th day of December, 1895, upon a dismissal of the complaint upon the merits, directed by the court after a trial before the court and a jury at the Essex Circuit.</p> <p>The case was tried at the Essex Circuit before the court and a jury, and at the close of the evidence on the part of the plaintiff a nonsuit was granted and the judgment appealed from was thereupon entered.</p>

<p>Appeal by the defendant, Doty Polhamns, from a judgment of the Court of Sessions of Ulster county, rendered on the 16th day of December, 1895, affirming a judgment of the Court of Special Sessions convicting him of a violation of section 31 of chapter 401 of the Laws of 1892, known as the Excise Law.</p>

<p>Appeal by the plaintiff, Benjamin F. Wilber, from a judgment of tlie Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 23d day of November, 1895, upon a nonsuit granted by the court after a trial at the Schenectady Circuit before the court and a jury.</p> <p>The action was brought to recover the damages resulting from personal injuries caused by the alleged negligence of the defendant.</p>

Appeal by the defendant, George W. Hess, from a judgment of the Court of Sessions of Greene county, rendered on the 12th day of December, 1893, upon the verdict of a jury convicting the defendant of the crime of manslaughter in the first degree upon an indictment for murder in the second degree.

<p>Appeal by the defendants, John W. Hart, late sheriff of the county of Albany and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 17th day of March, 1896, upon the decision of the court rendered after a trial at the Albany Special Term, overruling the demurrer of the defendants to the complaint.</p> <p>The ground of the demurrer was that the complaint did not state facts sufficient to constitute a cause of action.</p>

<p>Negligence — a child passing through a space of two feet between a truck and a mill struck by a box thrown from the mill door to the truck below — the mill owner not excused became not interested in the transportation of the box—exclamations of pain admissible—contradicting a witness.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that while the plaintiff, a child aged ten years, was going home from school she was struck on the head, while passing the defendant’s mill, by a box of goods which was thrown from the door of the mill upon a truck below. The plaintiff fixed the distance between the mill building and the tail board of the truck where the plaintiff was injured at from eighteen inches to two feet, while upon a former trial this distance had been put at three feet.</p> <p>Held, that if there was room enough, as stated by the plaintiff, for her to pass, and others were passing, it was not negligence in her, as matter of law, to pass through such a narrow space;</p> <p>That the fact that the defendant was not concerned in the transportation of thq goods from its mill door, did not exempt it from liability for the acts of its employees done within the scope of their employment;</p> <p>That the mother of the plaintiff might testify that, on the night following the accident, the child cried out and complained frequently of pain in her head, as such exclamations were competent as the natural concomitants and manifestations of pain and suffering;</p> <p>That, in order to contradict a witness for the defendant (the driver of the truck, who had stated that he stayed on the truck until the box in question had been tipped over far enough outside of the mill to hit the last box in position on the truck), the mother of the plaintiff might testify that the driver had told her, on the night after the accident, that he was at the head of the horses when this box came out of the mill.</p>

Appeal by the plaintiff, Isaiah Townsend Burden, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rensselaer on the 17th day of November, 1893, upon the decision of the court rendered after a trial at the Rensselaer Special Term, except the following provisions thereof: That the said preliminary or promoters’ agreement executed by the plaintiff and defendants Burden and Arts June 30, 1881, is binding and…

<p>Appeal by the defendant, Henry A. Gates, as executor, etc., of Aaron D. Gates, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 2Yth day of April, 1895, upon the decision of the court rendered after a trial at the Chenango Circuit before the court without a jury.</p>

<p>Appeal by the plaintiff, Albert S. Embler, from a judgment of the Supreme Court in favor of the defendants dismissing the plaintiff’s complaint, entered in the office of the clerk of the county of Albany on the 6th day of January, 1896, upon the decision of the. court rendered after a trial at a Special Term held at chambers, in Schenectady, pursuant to an adjournment from the Albany Circuit, The action was brought by the plaintiff as assignee of Alice Provencha, administratrix of Sylvester Provencha, who was alleged to be a fireman in the employment of the defendant, the Ticonderoga Pulp and Paper Company, and who was alleged to have died of injuries sustained from the explosion of a boiler in its-works, while he was serving as an employee. The boiler had been insured by the defendant, the Hartford Steam Boiler Inspection and Insurance Company under the policy described in the opinion of' the court. After the death of Sylvester Provencha, the plaintiff' requested the Ticonderoga Pulp and Paper Company, in writing, to collect, or, if necessary, to sue the Hartford Steam Boiler Inspection- and Insurance Company for the sum of $5,000 for his benefit, but this request was refused;' and he subsequently demanded, in writing, of the Hartford Steam Boiler Inspection and Insurance Company the payment of the same sum, which was also refused. Before-the assignment to the plaintiff, Alice Provencha, as such administratrix, had brought an action against the Ticonderoga Pulp and Paper Company to recover damages for its alleged negligence.. resulting in the death of Sylvester Provenclia, her husband, and that action had, before'trial, been settled and discontinued upon the payment by the defendant therein of $1,500. In the present action, the plaintiff demanded judgment for an accounting between himself and the two defendants, asked a judgment against the Ticonderoga Pulp and Paper Company for whatever sum might have been paid to it by the Hartford Steam Boiler Inspection and Insurance Company, over and above its loss and damage to property, for the use and benefit of Sylvester Provenclia or his representatives ; and the plaintiff also asked a judgment against the Hartford Steam Boiler Inspection and Insurance Company for the sum of $5,000, or for such part thereof as, upon an accounting, should be shown not to have been paid to the Ticonderoga Pulp and Paper Company for the use and benefit of Sylvester Provenclia.</p>

Submission of a controversy upon an agreed statement of facts,, pursuant to section 1279 of the Code of Civil Procedure. The controversy was as to who was entitled to a deposit in the. National Savings Bank in the city of Albany. The account stood in the name of Alida P. Bell or James 0. Bell, her husband, or the-survivor of them. James C. Bell died prior to the death of Alida P. Bell, who was his wife.

Appeal by the plaintiff, Matilda-H. Reynolds, from a judgment •of the Supreme Court in favor of the defendant, The Westchester Eire Insurance Company, entered in the office of the clerk of the ■county of Saratoga on the 6th day of February, 1896, upon the dismissal of the complaint upon the opening at a Trial Term of the Supreme Court, and also from an order entered in said clerk’s office on the 6th day of February, 1896, upon which the judgment was entered.

Appeal by the plaintiff, Joseph E. Moak, from a judgment of the Supreme Court in favor of the defendant Joseph II. Snyder, entered in the office of the clerk of the county of Schoharie on the 26tli day of February, 1895, upon the decision of the court rendered after a trial at the Schoharie Circuit before the court without a jury, dismissing the plaintiff’s complaint as to said defendant. The will of Katherine Donaldson was as follows : “ First.

<p>Certiorari issued out of the Supreme Court and attested on the 25th day of January, 1896, directed to James A. Roberts, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in assessing the relator as a foreign corporation doing .business within the State of Hew York.</p>

<p>Receiver of a corporation—liability of, for a trust fund held by the corporation— extent of the preferences, in payment from the assets, to which the beneficiary of the trust fund is entitled.</p> <p>In an action submitted upon an agreed state of facts, it appeared that on January 17, 1895, the Merchants’ Bank of Binghamton held two warrants of the city of Binghamton, amounting to §8,133.80, drawn in favor of the plaintiff and received by the bank as agent for the plaintiff for the purpose of their collection, and that on that day it surrendered them to the city treasurer and received in return his check upon the National Broome County Bank for §2,923.94, the balance, §209.86, being withheld by the city treasurer to pay an assessment due to the city from the Merchants’ Bank. On the same day the Merchants' Bank, through the city clearing house, presented and surrendered for payment to the National Broome County Bank the check for §2,923.94, as well as ten other checks, drawn upon the latter bank by its depositors, amounting in all to §3,224.93, and. on the same day, through the city clearing house, the National Broome County Bank presented for payment and surrendered to the Merchants’ Bank checks drawn upon it, by its depositors, for §2,338.46, -and also checks amounting to §353.42, owned by the National Broome County Bank and drawn upon private bankers styled E. Ross & Sons by their depositors, for which private banking house the Merchants’ Bank was the clearing house agent. As a result, the National Broome County Bank gave the Merchants’Bank a check upon the National Park Bank of New York for the difference, §533.05, which was deposited in its account in the American Exchange Bank of New York.</p> <p>On the 21st day of January, 1895, the Merchants' Bank became insolvent, and on January 29, 1895, the defendant was appointed its temporary receiver, up to "which time from the date of the deposit of the §533.05 check therein, the .account of the Merchants’ Bank with the American Exchange Bank was at all times good for a much larger sum, and passed with other assets of the Merchants’ Bank to the defendant as receiver.</p> <p>The checks held by the National Broome County Bank, and drawn upon the Merchants’ Bank, aggregating §2,338.46, were charged by the Merchants’ Bank to its respective depositors whose accounts were all good for the amounts so charged. The checks aggregating §353.42, drawn upon the private banking house of E. Ross & Sons, were charged by the Merchants’ Bank to that concern, and the claim of the Merchants' Bank thereon has never been paid, as .the concern of E. Ross & Sons became insolvent on January 21, 1895, and upon that day made a general assignment for the benefit of creditors.</p> <p>At the close of the clearing house transactions on January 17, 1895, the Merchants’ Bank had in cash more than §3,000, and it had such a sum at all times up to the time of the appointment of the receiver.</p> <p>The plaintiff demanded of the receiver the amount of the city warrants, to wit, the sum of §3,133.80, but the receiver refused to pay it.</p> <p>Held, that as the Merchants’ Bank was the agent of the plaintiff, in so far as the warrants, or their avails, could be traced into the assets of that bank which passed into the hands of the defendant, the receiver, he must account for them to the plaintiff, in whose favor a trust was impressed upon them;</p> <p>That as the checks making up the item of §2,388.46, which were charged by the Merchants’ Bank in the accounts of its depositors by whom they were drawn, brought nothing to the Merchants’ Bank, but simply discharged to that extent its obligations to such depositors, they did not constitute an asset which passed to the receiver;</p> <p>That the contention, that the use by the Merchants’ Bank of the city treasurer’s check saved that bank from using so much of the cash on hand, and that, consequently, so much of this cash as equaled the amount of the check might fairly be said to be the avails or proceeds of the check, could not be sustained;</p> <p>That a beneficiary of a trust could not be entitled to a preference out of the assets of the trustee, except in so'far as he could trace and identify his own fund, or the clear avails of it;</p> <p>That as the draft or check drawn upon the National Park Bank of New York, and deposited in the American Exchange Bank, remained intact, the plaintiff was entitled to receive its amount from the defendant, and also all that the defendant might collect upon the checks drawn upon the private banking house of E. Ross & Sons.</p>

<p> Affiliation bond—enlarging the obligation of the defendant, as prescribed by statute, is mid. </p> <p>In an action upon a filiation bond given under subdivision 1 of section 851 of the Code of Criminal Procedure it appeared that, at the time of the execution of the bond in question, that subdivision provided for the execution of an undertaking with approved securities, to the effect “that he (the defendant) will .pay weekly or otherwise, as may have been ordered, the sum directed for the support of the child and of the mother during her confinement and recovery, or which may be ordered by the Court of Sessions of the county.”</p> <p>The bond in question was conditioned “that if the said Harmon Worden shall well and truly observe all the conditions of said order of affiliation, then this obligation to be void.”</p> <p>Meld, that irrespective of the fact that the defendant was required to give a bond instead of the undertaking required by the statute, the bond in question was . void;</p> <p>That the omission of the provision specified in the statute, that the defendant should pay the sum directed “or which may be ordered by the Court of Sessions of the county,” clearly enlarged the liability of the defendant, as it absolutely bound him to pay the amount directed by the magistrates, and practically deprived him of the opportunity of reducing it by an appeal.</p>

Certiorari issued out of the Supreme Court, and attested on the 24th day of April, 1893, directed to Frank Campbell, Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings in reference to the application for the cancellation of tax sales of certain lands in Franklin county. The application was made on behalf of the owners, who claimed that the tax sales were invalid.

Appeal by the defendants, The United States and Canada Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 26th day of October, 1895, upon the verdict of a jury rendered after a trial at the Franklin Circuit, and also from an order entered in said clerk’s office on the 22d day of October, 1895, denying the defendants’ motion for a new trial made upon the minutes.

<p> When the question as to the credibility of a party need not be submitted to the jury. </p> <p>Where the only proof in regard to a contract for the sale of goods, to recover the purchase price of which the plaintiff sues, is the testimony of one of the defendants, which is not in any way discredited, and whose statements are not improbable, and in some respects are corroborated by other parties, the rule that the credibility of the testimony of a paity should be left to the jury does not apply.</p>

Appeal by the plaintiffs, The Sun Printing and Publishing Association and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 20th day of February, 1896, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiffs’ complaint. The plaintiffs are taxjiayers in the city of New York.

Appeal by the plaintiffs, John Sugden and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of June, 1896, denying their motion to continue a preliminary injunction restraining the defendant, pending the suit, from interfering with their business.

Appeal by David A. Doyle from an order of the Supreme Court, made at the Mew York Special Term, and entered in the office of the clerk of the county of Mew York on the 13th day of July, 1896, denying his application to intervene and be made a party respondent in the proceeding.

<p>iStreet openings in New York city — the commissioners harnea discretion as to the compensation and the an'ea of assessment — an increased assessment, made necessa/ry because other lands a/re partially exempt, is not illegal.</p> <p>The question as to the compensation to be awarded for property, taken by commissioners appointed to open a street in the city of New York, is within the control of the commissioners, and the court will not interfere with their honest judgment upon the subject.</p> <p>The Consolidation Act, as the same was amended in 1893, gives to such commissioners the power to fix the area of assessment, and the court will not interfere except in the case of a clear abuse of discretion or of manifest error.</p> <p>Where such commissioners have not assessed the lands in question beyond the amount of benefit which they have received' from the improvement, it is not an objection, available to owners thereof, that their assessments have been increased by adding to them amounts which could not be assessed upon other parcels in the area of assessment, because the law forbids the assessment of these latter parcels at a greater amount than one-half of the value of the parcels as fixed by the tax commissioners.</p>

Appeal by Francis S. K. Seagrist and another from an order of the Surrogate’s Court in the county of Bew York, entered in the office of said Surrogate’s Court on the 22d day of May, 1896, denying their motion made to amend a decree and charge the costs of probate proceeding against the contestants personally.

Appeal by the defendant, Henry M. Toch, as executor, etc., of Bernard Toch, deceased, from so much of an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of June, 1896, as appoints a referee to ascertain and report the amount due to Bella B. Mayer, or to any other person, which is a lien upon certain surplus moneys deposited with the chamberlain of the city of Hew York under the…

Appeal by Charles Haldane Johnson, as receiver of the Complete Electric Construction Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of June 1896, denying Ms motion to punish James H. Warner for contempt, of court.

Appeal by the defendants, Filippo Cappadonia and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of June, 1896, continuing an injunction pendente lite granted upon the issuance of an order to show cause.

<p>Appeal by the plaintiff, Frank T. Morrill, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of June, 1896, requiring the plaintiff to serve a bill of particulars.</p>

<p> Attachment—notwithstanding its withdrawal, the defendant is entitled to an order vacating it. </p> <p>Notwithstanding the fact that an attachment has fallen by operation of law, .and has been formally withdrawn, the defendant is entitled to move to vacate the attachment and to enter a formal order of vacation,</p>

<p>Appeal by the defendant, Thomas Canary, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of July, 1896, appointing a receiver of the rents of the premises described in the complaint, pendente lite.</p>

Appeal by the plaintiff, William S. Ridabock, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 9th day of July, 1896, denying his motion for a retaxation of costs. The action was the customary action against the elevated roads for an injunction and damages. The plaintiff obtained a judgment from which the defendants appealed to the Appellate Division, where it was affirmed.

Appeal by Edward J. H. Tamsen, as sheriff of the city and county of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1896, requiring him to execute a requisition of replevin, and to take certain property into his possession.

Appeal by Edward Kent and William R. Wilcox, as executors, etc., of Mary J.-Havemeyer, deceased, from an order of the Surrogate’s Court of the county of New York, entered in the office of said Surrogate’s Court on the 7th day of July, 1896, denying their motion to modify a decree of said court, entered on the 7th day of March, 1896, by striking out the provision for an allowance of commissions to J. Lee Humfreville, the third executor of said estate.

Appeal by the defendant, Edward Hunter, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of June, 1896, denying his motion to stay the proceedings in the action until a suit in equity, brought in the State of Tennessee, could be determined.

Appeal by the plaintiff. Richard Henry Savage, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of June, 1896, vacating an order for the examination of the defendant before trial and a subpoena duces tecum.

Appeal by the defendants, Henry Marcus and others, from an order of the Supreme Court, made at the New York Special Term, and entered in the office of the clerk of the county of New York on the 3d day of July, 1896, denying their motion to vacate an attachment.

Appeal by the defendants, Christina O’Sullivan and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1th day of July, 1896, granting the plaintiffs’ motion for a stay of execution on the final order of the Appellate Division, pending an appeal by the plaintiffs from the said order of the Appellate Division to the Court of Appeals.

Appeal by the relator, Thornton Floyd Turner, from an order of the ¡Supreme Court, made at the New York Special Term, bearing date the 29th day of June, 1896, and entered in the office of the clerk of the county of New York, denying his motion for a peremptory writ of mandamus directing the commissioner of jurors for the city and county of New York to strike his name from the list of jurors, for the city and county of New York for the years 1895 and 1896.

<p>Motion by the plaintiff, Susan Dorr, as administratrix, etc., of Peter Dorr, deceased, for a new trial upon a case containing exceptions, ordered to he heard at the Appellate Division in the first instance, upon a nonsuit granted by the court after a trial at a Trial Term of the Supreme Court, held in and for the county of Erie on the ,11th day of March, 1896.</p> <p>This action was brought to recover the damages resulting from the alleged negligence of the New York, Lake Erie and Western Railroad Company, occurring on the 7th day of March, 1895, which railroad at that time was being operated through the city of Buffalo and elsewhere. • The case was brought to trial at a term of the Supreme Court in Erie county, in March, 1896. The intestate was struck by the pilot beam of an engine attached to a train of cars operated by defendants upon their tracks at the intersection of such tracks with William street. The Erie tracks cross William street in the easterly portion of the city of Buffalo at an angle of about forty-five degrees. There is a sidewalk on the north side of William street from Queen street eastward. The train causing the injury was passing eastward on the south track. There was some evidence given tending..to show that it was going at a speed of twenty-two to twenty-five miles an hour. -There was a flagman’s shanty stationed near the crossing, and it is nearly straight across from the point where Queen street opens into William street. There is a line of telegraph poles along the tracks extending west from the point where the collision occurred, and there is another line of poles, telegraph or telephone, on the south side of William street, and wires strung on top of them extending west from the crossing; and on the same side of the street are short trolley poles from twelve to fifteen feet high. There was evidence tending to show that the poles, to some extent, would obscure one’s vision looking to the west along the- tracks. It seems that the intestate was passing eastward on the north side of William street as he approached the crossing. The witness Rohr says the intestate, when he was struck, was on the southeast side of the east-bound track on the north side of William street; “ the man was on the sidewalk just about a foot on the outside of the south rail of the east-bound track; that was the furthest rail to the south.” Witness was going towards the intestate; he "saw Wagner with the intestate; saw the intestate first on Queen street; saw him cross the street toward the sidewalk, and he saw the intestate and Wagner meet, and as they came from a point where they joined each other they came toward the tracks on the north side of the sidewalk; the witness saw them walking along toward the tracks kind of slow. The witness adds that he saw the intestate turn his head toward the train — looking westward toward the train — and he adds : “ When he got there he started on a run, very likely he had seen the train, and this boy ran across the tracks,. and he (Dorr) kept on the sidewalk; and the boy jumped straight across that track, and that brought him nearer to the street, shortened the track, and Dorr kept on the sidewalk, and that made a longer turn than the boy had. Likely it made ten or twelve feet further that Dorr had got to clear to get past the train than the boy had. The boy jumped across the track and ran; he couldn’t tell exactly, but as close as he could judge they were along there between the two tracks; he might have been on the west-bound, but he could not tell exactly the spot. He didn’t measure it to the inch. As Mr. Dorr was struck he was a foot or. thereabouts south of the rail, outside of the track on which ■the engine was running. The pilot beam, where they put the flag in on top of the pilot, the beam projects out a foot or so further than the rail; he had cleared the rail and this beam struck him.” There was evidence that the flagman was present and was engaged in the discharge of his duty, and that he, seeing the danger the deceased was in, hallooed to him. The witness further testified: ' “ When Dorr and W agner got down to the tracks or thereabouts, Dorr turned his head to the west, the way the train was coming. He kept on a couple of steps more at the usual gait they were going, but it seemed when the train came closer to him he, Dorr, ran. The distance from the point "where he was between the two rails of the tracks themselves when he turned his head was about three feet to the east-bound track.” In the course of the cross-examination the witness said : “ From the time witness saw Dorr coming towards him he didn’t turn his head at all until he got on the west-bound track. or between the west and east-bound tracks ; when he turned and looked at the train he did nothing, but kept on a slow walk towards the east-bound track. Dorr turned his head back and took a step or two, and then he (Dorr) went on a run. He began to run before he reached the east-bound track. Mr. Dorr began to run between the west and east-bound tracks, along in there. He continued to run until he passed the east-bound track ; then he stopped and was hit, and that was all one could say; he stopped, or it seemed he did.”</p> <p>The witness Wagner testified, viz.: “ Joined Dorr about the middle of Queen street on William street. From there he went with Mr. Dorr across the tracks. After he (Wagner) started from the middle of Queen street he walked down to the tracks and stopped to see if any trains were coming. It was west of the two tracks; that would be west of the west-bound track that he stopped. He was on the sidewalk; he stopped to look if there were any trains coming; he didn’t see any. He next started for over the tracks. When he stopped he was about ten or fifteen feet from the westbound track; from the point where he stopped to see if there was any train coming lie started off for ovér the tracks and got in the middle of the east-bound track, and the flagman hollered and he looked up over his right shoulder and saw the train coming, and he' gave two or three steps and he was over the tracks. * * * The flagman was around here somewhere when he hollered * * * The flagman was about twelve feet from him; witness was between the rails of east-bound track; he had to jump about four feet to get clear of the rails.”</p> <p>At the close of the evidence the defendant moved for a nonsuit on the grounds :</p> <p>(1) That the plaintiff has not made out a cause of action.</p> <p>(2) That the plaintiff’s intestate is not shown to be free from contributory negligence.</p> <p>(3) That it appears that the plaintiff’s intestate lost his life in .part, at least, through his own negligence.</p> <p>(4) That the plaintiff took the risk of crossing this track in front of the approaching train, which he could see and hear himself, and that the consequences of the risk furnish no cause of action to the plaintiff here.</p> <p>The court granted the motion for a nonsuit. Plaintiff thereupon took an exception, and the exceptions were ordered heard in this court in the first instance.</p>

Appeal by the defendant, William H. Palmer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on- the 18th day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court, held in and for the county of Oneida, and also from an order entered in said clerk’s office on the 24th day of March, 1896, denying the defendant’s motion for a new trial made upon the…

Appeal by the defendant, Mary J. Ourtiss, from an order of the County Court of the county of Wyoming, entered in the office of the clerk of the county of Wyoming on the 13th day of January, 1896, granting leave to issue an execution upon a judgment. On the 3d day of January, 1888, Thomas Agar recovered a judgment in a Justice Court in the county of Wyoming against the defendant upon the confession of said defendant of judgment in the sum of $393.31 damages and costs.

<p>Appeal by Peter G-arlock, one of the executors of the last will and testament of Thomas Yandevort, deceased, and others, from a decree of the Surrogate’s Court of the county of Ontario, entered in the office of said Surrogate’s Court on the 30th day óf July, 1894, upon the decision of the court judicially settling his accounts as executor of the last will and testament of Thomas Yandevort, deceased.</p> <p>Also an appeal by T. Spencer Yandevort, individually and as executor of the will of Cornelius Yandevort, deceased, and as administrator of the estate of Thomas W. Yandevort, deceased, as hereinafter stated.</p> <p>November 20th, 1894, Peter G-arlock, executor, etc., appealed from a decree of the surrogate of the county of Ontario, entered on the 30th day of July, 1894, and from the whole thereof, having on the second of November filed exceptions to the findings of fact and conclusions of law made by the surrogate, and filed in his office on the 30th of July, 1894.</p> <p>T. Spencer Yandevort, individually and as executor, etc., on the 30th of July, 1894, filed exceptions to the rulings and findings made by the surrogate, and on January 2nd, 1895, he appealed “ from so much and all that part of the decree of the Surrogate’s Court of Ontario County, made and entered in the above-entitled proceeding on the 30th day of July, 1894, as in substance and effect adjudges and decrees that the sum of §1,000 secured to he paid in and by the mortgage of Cornelius Yandevort to said Thomas Yandevort, deceased, dated October 5, 1880, * * * to said Thomas W. Yandevort on April 15th, 189J, or in case of the decease of the said Thomas W. Yandevort before that date, to he paid to the executors, administrators or assigns of said Thomas Yandevort, deceased, does not become due or payable to the executors of the said Thomas Yandevort, deceased, until the said 15th day of April, 1897.” He also appealed from that part of the decree “ as in substance and effect adjudges and decrees that the proceeds of the homestead farm of 204 acres of land, mentioned in the sixth clause of the testator’s will in the hands of Peter G-arloclt, the accounting executor, are charged or chargeable with the payment of the several legacies given and bequeathed in the first, third, fourth and fifth clauses of the testator’s will, as the same are modified by the codicils thereto, this appellant claiming that said legacies, as so modified, are not, nor is either of them, charged upon, or payable out of, said homestead farm, or the proceeds of its sale, in the hands of the said executor, and that in this respect, also, the said decree is erroneous and illegal.” He also states that, “in all other respects and particulars, this appellant will affirm the validity of the said decree on this appeal.”</p> <p>Extensive findings of fact were made by the surrogate, and form the basis of the decree settling the accounts of the executor. It is suggested that Sarah E. Emery has died since the appeal was perfected, and her personal representatives have been substituted.</p> <p>Thomas Yandevort died December 26, 1880, leaving a last will and testament and three codicils. The will was dated August 4, 1875, and the codicils were dated respectively February 4, 1878 ; June 12, 1879, and June 16, 1879 ; and they were admitted to probate and an inventory was filed April 28, 1884. He left about $20,000 of personal property and a homestead farm containing 204 acres, lying near the village of Phelps, known as “ the Horton or Yandevort farm.” Also another piece lying on the pre-emption road, in the town of Phelps, containing about fourteen acres of land, commonly called the “ Blinn ” place. There was a contest before the will was admitted, and temporary administrators were appointed. The testator left him surviving his widow, Ella Yandevort; his son, Gilbert M. Yandevort; his son, Cornelius Yandevort; his soil, T. Spencer Yandevort; Sarah E. Emery, a daughter; Maria Garlock, a daughter (wife of the executor), and Albert T. Yandevort and Ellen Yandevort, children of Andrew P. Yandevort, a deceased son of the testator. He also had several other grandchildren at the time of his death.</p> <p>Numerous litigations have ensued in respect to his estate, and many facts and details relating thereto appear in the following reports: Garlock v. Vandevort (5 N. Y. Supp. 737 [Special Term opinion delivered by Adams, J.]; S. C. affd., 58 Hun, 601: S. C. affd., 128 N. Y. 374).</p> <p>In Matter of Vandevort (62 Hun, 612) it was held, among other things, that the Surrogate’s Court had jurisdiction to construe the codicils and will in order to determine the rights of the parties in the distribution of the estate. And in Garlock v. Vandevort (128 N. Y. 374) it was also held that the surrogate had authority to construe the provisions of the will and determine their meaning and validity when necessary to make his decree as to distribution. (See, also, Garlock v. Vandevort, 33 N. Y. St. Repr. 1035.)</p>

<p>Appeal by the defendant, The Milwaukee Mechanics’ Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Seneca on the 9th day of April, 1896, for §569.16 damages, upon the report of a referee.</p> <p>On the 18th day of July, 1892, the appellant, in consideration of three dollars and sixty cents, paid by the plaintiff to Samuel J. Jacoby, its duly authorized local agent, made, executed and delivered to the plaintiff its policy of insurance, whereby it insured the plaintiff against loss or damage by fire to the amount of §600 upon his two-story frame shingle-roof dwelling house situate on the west side of Rumsey street, in the village of Seneca Falls, N. Y., for the term of three years. On the 1st day of October, 1892, the dwelling house was destroyed by fire without any fault of the plaintiff.</p> <p>The referee finds: “ That immediately after said fire the plaintiff verbally notified said Samuel J. Jacoby, the local agent of said company as aforesaid, who thereupon at once notified said company by telegraph and by letter of said loss; that pursuant thereto, and on or about the 10th day of October, 1892, said defendant sent its adjuster to Seneca Falls to adjust said loss ; that an agreement in writing was then and there entered into between plaintiff and defendant, pursuant to the terms of said policy of insurance, by which the amount of loss was to be appraised by said adjuster for said company and one B. F. Peck for plaintiff, and an award in writing, pursuant to said submission of appraisal, was thereupon duly made, by which the amount of said loss was duly fixed and agreed upon between said parties at the sum of four hundred and eighty dollars and thirty-four cents, which award was immediately thereafter delivered by said adjuster to said company; that the plaintiff frequently applied to said Jacoby for blanks to make out proofs of loss within the time limited by terms of policy for so doing; that Jacoby promised to furnish same and informed plaintiff that the defendant had been notified, and that the check for the amount of appraisal would soon be sent on, and plaintiff relied upon said statements; that on the 9th day of December, 1892, and more than sixty days before the commencement of this action, this plaintiff made and executed proofs of loss in writing in due form and properly verified, and mailed same to defendant company, and said proofs were received by it at its New York office on the 10th day of Decern- ■ her, 1892, and have been ever since retained by said company without objection ; * * * that said defendant, Milwaukee Mechanics’ Insurance Company, by entering into said agreement of arbitration and appraisal before expiration of the time within which proofs of loss should have been furnished, and the retention of same without objection, has waived the earlier furnishing of same, as required by the terms of its said policy; that the sum of four hundred and eighty dollars and thirty-four cents became due and payable from said defendant to the plaintiff herein on the Jth day of February, 1893, and remains wholly unpaid.”</p> <p>The appellant filed four exceptions to matters mentioned in the referee’s report. Only two of them, however, relate to questions of law : (1) That the defendant is indebted to the plaintiff in the sum of $480.34; (2) that the defendant, Wayne Building, Loan and Accumulating Fund Association, has interest in said recovery to the amount of $226.03.</p>

<p>Appeal by the defendant, John O. Roe, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 28th day of May, 1895, upon the report of a referee bearing date the 25th day of May, 1895.</p> <p>The action was brought to enforce the specific performance of two contracts set out in the complaint, executed by the defendant with one William 0. Wait for the purchase, by the defendant, of three several lots, one, lot No. 49, in block 29 in the central addition to Kettle Falls in Stevens county, State of Washington, for the sum of $500, payable in three equal installments of $166.66 each, bearing date the 20th day of November, 1890. The other contract was dated on the 29th day of November, 1890, and was for the purchase of lots 7 and 8 in block 16 in the central addition to Kettle Falls in Stevens county, State of Washington, for the sum of $800, payable in three equal installments of $266.66 each. On the first contract two installments of the purchase price of said lot had been paid, with accrued interest to May 20,1891, leaving the last installment of $166.66, with interest from May 20, 1891, unpaid. On the second contract the first two installments of the purchase price of lots 7 and 8 were paid, with accrued interest to May 26, 1891, leaving the last installment of $266.66, with interest from May 26,1891, unpaid.</p> <p>The referee finds that on the 10th of April, 1891, Wait, by two instruments in writing, assigned to the plaintiff all his right, title and interest in and to the two several contracts aforesaid; and also finds that, at the time of the execution of the contracts, Wait had title to the land described in the contracts, and that on the 22d of February, 1892, by deed, he conveyed the same to George H. Smith, in whom the title vested, and on the 25th of November, 1893, the plaintiff tendered to defendant a warranty deed of said three lots, executed by George IT. Smith, and at the same time tendered the defendant a release of said lots from the lien of a mortgage thereon executed by the mortgagee, and offered to deliver them to defendant upon payment of the amount due on said contracts; that the defendant ■ refused to accept such deed and release, or to make the payment due from him to the plaintiff under his said contracts. The referee found as conclusions of law: “ (1) That the plaintiff is entitled to enforce against the defendant all the rights of said William O. Wait under the said contracts. * * * (3) That the plaintiff is entitled to judgment in its favor and against the defendant for the specific performance of the said two contracts by the defendant, and requiring the defendant to pay to the plaintiff the unpaid installments thereon with accrued interest, together with the taxable costs of this action, upon the tender to him of the deed and release aforesaid. * * * ”</p> <p>The defendant filed exceptions to the several conclusions of law stated by the referee.</p> <p>The plaintiff is a domestic corporation orgainized in September, 1S90, at Rochester, under chapter 40 of the Laws of 1848, and the acts amending the same, for the purpose of “ purchasing, taking, holding and possessing real estate and buildings, and selling, leasing' and improving the same,” with a capital stock fixed at $500,000, in shares of $100 each, with thirteen trustees. Soon after its organization it purchased, through its promoters, 905 acres of land at Kettle Falls upon the Columbia river, in the State of Washington.</p> <p>The defendant, in his answer, admits that he executed two contracts, copies of which are annexed to the complaint and marked Schedule A and Schedule B ; and he alleges that, shortly prior to the execution thereof, the defendant entered into an agreement with the plaintiff, acting through its officers and agents, whereby the company agreed to sell the defendant the building lots described in said contracts, and he alleges that he has paid on the lots $533.33, and that the lots were sold to the defendant by the plaintiff “ through said Aris, Ranger and Morley, and others of its officers, managers and agents, who represented. to defendant that this plaintiff owned said property and lots, and defendant knew nothing of said Wait, or that he held the titles to the lands of the plaintiff until after defendant had agreed, to buy said lots, and when the contracts were presented by said plaintiff for execution.”</p> <p>The answer also alleges that “ in the year 1890, one John W. Goss, in connection and associated with William B. Aris, Harvey Hoag, W. H. Dick, L. C. Huber, Charles W. Robinson, George S. Horley and others, obtained the option upon a tract of uncultivated, wild and forest lands situated in Stevens county, in the State of Washington, for the purpose of converting said lands into a town site and dividing them into building lots, and with the view of organizing and promoting a stock company at Rochester, R. Y., for developing and selling of the same. That said tract of land consisted of about 1,000 acres, and was purchased through said Goss for about the sum of $25,000. That on or about the 20tli day of October, 1890, said John W. Goss. and Flora A. Goss, his wife, purported to sell said tract of land to said Charles W. Robinson for the sum of $135,750, and executed a deed of said lands to said Robinson, and said Robinson thereupon executed to said Goss in return a mortgage upon said land in the sum of $105,750, and it was agreed between them that $30,000 of said purchase price was to be paid in money, and said deed and said mortgage were thereupon recorded in said Stevens county,' State of Washington, and the name adopted by said promoters for said lands and town site was Kettle Falls, and said town site has since been known by that name. * * * That on or about the 22d day of October, 1890, said Rochester and Kettle Falls Land Company, through said Aris, Dick, Hoag, Robinson, Goss and others, purported to purchase said tract of land at Kettle Falls of said Goss for the sum of $450,000, as appears by the minutes of the secretary of said company, and said purchase price consisted of the mortgage on the property of $105,750, anpt capital stock of the company to the amount of $300,000 was to be paid to said Goss and others, and the balance of about $40,250 was agreed to be paid in money; that said lands were purchased by said company upon the above conditions, and in order to carry out said purchase said Goss, through said Charles W. Robinson, on or about the date aforesaid, executed and delivered a deed of said lands to one William C. Wait, subject to said mortgage, said company assuming said mortgage, and said Wait was designated by said company, by resolutions of its directors, to hold the title to said lands, for the reason that said company, being a corporation, could not legally hold title to lands in the State of Washington, and that said plaintiff has not, at any time, held title to said lands or any part thereof, and has not acquired through said Wait, or otherwise, a clear and merchantable title to said lots in question, or to said lands, or any portion thereof.”</p> <p>The answer enumerates several false and fraudulent representations alleged to have been made “for the purpose of inducing people generally, and this defendant in particular, to purchase lots, and did induce this defendant to make the purchases aforesaid.” The answer further alleges that the lands, at the time they were purchased by the plaintiff, were not worth the amount said promoters agreed to pay for them, “ and have not since been worth that amount, nor are said lands worth more now than the mortgage upon them of about $28,0t)0, and said lands have no value other than that of ordinary wild and uncultivated land in the State of Washington.” It is also alleged that the plaintiff ceased to develop or improve said lands, and that what improvements had been made were allowed to fall into decay, “ and the few people and settlers who have located in said town, owing to the desertion of said enterprise by this plaintiff, are rapidly leaving and deserting the same.” The answer further alleged, viz.: “ That said plaintiff represented to the purchasers of lots, and to this defendant in particular, and agreed with said plaintiff, through its directors and managers, that the schedules of prices for lots fixed by said company at the time this defendant purchased said lots were to be maintained by the company until its lots were sold; while, on the other hand, said company, soon after this defendant purchased said lots, entered into fraudulent arrangements with its directors, whereby special prices and enormous discounts were given its directors and said promoters, and said company entered into a further fraudulent contract with certain of its directors and said promoters, who formed a syndicate called and known as the Xortliwestern Investment Company, to which company this plaintiff sold a large portion of its highest-priced lots at a small percentage of the schedule prices of said lots, thereby enabling said purchasers to offer lots at prices far below the price agreed to be paid by this defendant. * * * That said Wait, who held the title to said lands, for the plaintiff, was one of its promoters, and also its secretary (and a member of said fraudulent syndicate, said Rortliwestern Investment Comjiany), and at all times acted as the agent and representative of said plaintiff, and that said George II. Smith, to whom it appears said Wait transferred the title to said lands for said company, has since said transfer been a director and officer and manager of this plaintiff. That the contracts upon which this action is brought were at the time they were executed the property of said company, this plaintiff, and have at all times belonged to this plaintiff, and that said Wait was said plaintiff’s agent in taking said contracts, and that this defendant, on divers occasions prior to the beginning of this action, demanded of this plaintiff that said contracts be rescinded, and that he be relieved from the obligations under the same. That the facts above stated as to the fraudulent management, dealings and representations of said plaintiff were not known to this defendant until after he had made the payments aforesaid upon said contracts.”</p>

Appeal by the plaintiff, Jerome R. Petrie, from a judgment of the Supreme Court in favor of tiie defendant, entered in the office of the clerk of the county of Oneida on the 13th day of January, 1896, upon the report of a referee dismissing the plaintiff’s complaint.

<p>Appeal by the defendant, George Hollands, as sheriff of the county of Steuben, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Steuben on the 5th day of June, 1895, upon the report of a referee.</p> <p>The referee found as a fact: “ (2). That on the 20th day of October, 1893, the plaintiff was in the lawful and actual possession of the property described in tire said bill of sale and said amended complaint. (3) That on the last-mentioned date the defendant wrongfully took and removed the said chattels from the said possession of this plaintiff; and that he has ever since wrongfully withheld and detained the possession thereof from this plaintiff. (4) That after the said wrongful taking of said property, and on or about the 4th day of November, 1893, this plaintiff duly replevied the said- property from the defendant.” He also found that the defendant required a return of the property, and that it was delivered to the defendant. Also, that some time after the delivery of said property to defendant, as aforesaid, he sold all of the same. Exceptions were filed to the referee’s report.</p> <p>The referee found as conclusions of law, viz.: “ (1) That the damages to the plaintiff are of the value of said property at the time of the trial, to wit, $17,661.62, and the interest thereon, from the time said property was taken by defendant on the 20th day of October, 1893, to the date of this report, to wit, $1,692.56; total, $19,354.18. (2) That the plaintiff is entitled to judgment awarding to him the possession of the property described in the said amended complaint herein, with the sum. of $1,692.56, for the wrongful detention thereof, and also for the sum of $17,661.62, the sum fixed as the value of said property if possession thereof is not delivered to the plaintiff, together with $1,692.56, for the wrongful detention thereof, with his costs and disbursements in this action.”</p> <p>Plaintiff, in his, complaint, alleges that he was lawfully possessed of the chattels described in the complaint, and that, “ on the 20th day of October, 1893, at Bath, N. Y., the defendant wrongfully took said chattels from the possession of the plaintiff, and ever since has unjustly detained the same, to the plaintiff’s damage of seven thousand dollars.” The complaint contained the usual demand for the return of the property.</p> <p>The answer contains a denial of the complaint, and an averment that the chattels are not, and were not, the property of the plaintiff, “ nor in his possession, hut are the property of one Fred Moris, and were in the possession of your defendant by virtue of levies made thereon under certain executions in the hands of your defendant issued upon judgments recovered against the said Fred Moris.” The answer also alleges that the plaintiff’s claim of title and possession “is founded upon Certain transactions had between the plaintiff and the said Fred Moris, and a certain organization or association purporting to be a domestic corporation known as ' The Fred Moris Company,’ which said transaction purported to convey from the said Fred Moris to the said ‘ The Fred Moris Company,’ and from the said ‘ The Fred Moris Company ’ to the plaintiff herein, the title to or some interest in the property in said complaint described, which dealings and transactions between the said Fred Moris, the said ‘ The Fred Moris Company ’ and the said plaintiff herein, were made for the purpose of hindering, delaying and defrauding the creditors of said Fred Moris, and so done with the knowledge, aid and connivance of said plaintiff, and are fraudulent, and the said transfers, if any, were thereby rendered void as to the creditors of the said Fred Moris.”</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of November, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 8th day of November, 1895, denying the defendant’s motion for a new trial upon the minutes. The jury rendered a verdict in favor of the plaintiff for $500.</p> <p>Plaintiff’s complaint alleges that he was in the employ of the defendant as a freight brakeman on the 29th day of July, 1894, and that, at the time of the injuries of which he complains, he was middle brakeman on a freight train running westward through the village of Canajoharie; and that he ivas standing on top of one of the freight cars “ when suddenly he ran and was carried against a wire which was suspended in mid air over said railroad track, at said village of Canajoharie, and over the car on which he was standing; that he was caught by said wire and dragged and lifted from said car to another car, and thrown upon the same with great violence, receiving the injuries” which are stated. That the defendant was guilty of carelessness and negligence, which caused or contributed to the accident, “ in that it and they caused, or suffered, said wire to be strung or suspended across or over its said railroad track in a careless and negligent manner That it was carelessly and negligently attached or fastened to the limhs of growing trees on either side of said railroad track in a careless and negligent manner, so much so that when the wind blew or the said trees or limbs were otherwise caused to move or sway that said wire was liable to become loosened from said limbs or said trees, or the brackets on which they were attached were liable to become loosened from said limbs, so that the wire would drop down for some distance, and so low that it would become a dangerous obstruction to brakemen standing on freight cars passing under said wire.” It is also alleged that the defendant “ had due and sufficient notice that it was suspended over said railroad track, and that it was suspended in a careless and negligent manner and in a manner which would cause it to become a dangerous obstruction to its employees and brakemen standing on the top of trains passing under said wire.”</p> <p>The defendant, in its answer, admits that it is a domestic railroad corporation, engaged as lessee in operating the West Shore railroad, extending easterly and westerly through the village of .Canajoharie ; and that the plaintiff was in the employ of the defendant as freight hrakeman on the 29th day of July, 1894.</p> <p>At the close of the plaintiff’s evidence the defendant moved for a nonsuit on the ground:</p> <p>(1) “ That there has been no negligence proven in this case on the part of the defendant.</p> <p>(2) “ That the falling of the wire as described by the witnesses was without the fault of the defendant, and the defendant is not chargeable for any injury 'which may have resulted therefrom.” The motion was denied and an exception was taken.</p> <p>At the close of the whole evidence the motion was renewed on the grounds already stated, and on the further ground that “ there is no proof of any negligence ; or of that negligence in this case on the part of the defendant which makes the defendant liable to the plaintiff for the injury on this occasion.” The motion was denied and an exception was taken.</p> <p>The court was requested to charge: “ If this wire was erected without the affirmative knowledge and consent of the defendant, and did not appear dangerous to ordinary inspection, then the defendant is not liable.” There was a refusal and an exception. The defendant appeals from the order and from the judgment entered upon the verdict.</p> <p>The wire in question, to which was attached a call bell, had been put up by direction of Gilbert A. Ten Eyck, who kept a livery stable on the north side of the railroad tracks.</p>

<p>Appeal by the plaintiff, Louisa Bennett, as administratrix, etc., of William P. Bennett, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Wayne on the 27th day of January, 1896, upon the report of a referee dismissing the plaintiff’s complaint, with costs.</p> <p>On the 26th of March, 1894, William P. Bennett entered into a written lease with the defendant, as executrix of Francis Lyndon, for certain premises situated in the town of Macedón, for the term of one year from the 1st of April, 1894, agreeing to pay a yearly rent of §225. In that lease was a clause which gave the landlord a lien in the following language: “ The said party of the first part shall have a lien as .security for the payment of the rent aforesaid upon all the goods, wares, chattels, implements, fixtures, tools and other personal property which are or maybe put on the said demised premises, and such lien may be enforced on the non-payment of any rent aforesaid by taking and selling such property in the same manner as in case of chattel mortgage on default; such sale to be made upon six days’ notice, by posting the same in some public place on the premises and'serving it upon the party of the second part, personally or by mail, directed to him at Macedón, N. Y.” The schedule attached to that instrument, covering a portion of the property thus mortgaged, contained the following language: “ All of the crops which are sowed or planted, of every name or nature, and all hay cut from said place, all fruit of every name grown upon said premises during said term.”</p> <p>Bennett went into possession of the property under the lease and continued in possession until the 26th day of June, 1894, when he died intestate.</p> <p>Louisa Bennett, at the time of his death, resided on another farm several miles from her husband, William P. Bennett, and it is found by the referee:</p> <p>“ That on or about the 6th day of July, 1894, the said Louisa Bennett and said defendant entered into an agreement by which said Louisa Bennett did surrender and deliver unto said defendant said demised and leased premises and all crops then growing thereon, and by which in consideration of the payment to the defendant by said Louisa Bennett of the sum of fifty dollars ($50.00) on or about the first day of December, 1894, and the said surrender by said plaintiff as aforesaid, said defendant released the personal property hereinbefore described in Finding of Fact No. 6 from the lien of said chattel mortgage.”</p> <p>Also, “ That, therefore, and in pursuance of said agreement, said defendant entered upon said demised premises and occupied the same during the term of said lease and caused said demised premises to be cultivated and the crops raised thereon to be marketed for her benefit.”</p> <p>Also, “ That in entering into said agreement with said Louisa Bennett on said 6th day of July, 1894, and in taking possession of said demised premises as aforesaid, said defendant did not practice any deceit or fraud, or make any false or fraudulent representations to the plaintiff in any way whatsoever.”</p> <p>It was also found by the referee “ that on the 21st day of December, 1894, the plaintiff sold at public auction the personal property mentioned and described in Finding of Fact No. 6.” In Finding of Fact No. 6 it is found, viz., “ That said William P. Bennett removed and put upon said demised premises one horse, a lumber wagon, one democrat wagon, one top buggy, two open buggies, one pair of bob sleds, one cutter, one fanning mill, one reaper, one mower, one work bench, one set of carpenters’ tools, one set of double heavy harness, one set light single harness, three plows and other agricultural implements and household furniture.” It was also found, viz., “ That thereupon, and on the 6th day of July, 1894, the defendant had a good and subsisting lien upon the personal property described in Finding of Fact No. 6, under and by virtue of said indenture of lease.”</p>

Appeal by the defendant, the Buffalo, Rochester and Pittsburg Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 2d day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court, held in and for the county of Erie, and also from an order entered in said clerk’s office on the 2d day of March, 1896, denying the defendant’s motion for a new…

<p> When the decision of the County Court upon a report of commissioners laying out a highway is final. </p> <p>The decision of a County Court confirming the report of commissioners appointed to lay out a highway under the provisions of chapter 568 of the Laws of 1890 is final and cannot be reviewed by a writ of certiorari.</p> <p>This is so whether such highway be created in one or in two or more towns in the same county.</p> <p>If it be held that, in the latter case, the statute of 1890 is inapplicable, the writ of certiorari would still be improper, as in that event the remedy would be by appeal.</p>

<p>Appeal by Christopher W. Forkel, as committee of William B. Forkel, a lunatic, from an order of the County Court of the county of Monroe, entered in the office of the clerk of the county of Monroe on the 15th day of May, 1895, which modified the report of the referee theretofore appointed, to take and state his accounts as committee of the person and property of William B. Forkel, a lunatic.</p>

<p>Negligence—on proof that the deceased looked both ways before crossing a track the question of contributory negligence is for the jury — excessive verdict — testimony of a lay witness as to the distance at which he could hear a bell or whistle.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the intestate, a young girl, was walking arm in arm with another girl toward a railway crossing. They came first to two tracks of the Buffalo, Rochester and Pittsburg railroad, twenty-five feet beyond which were four tracks of the defendant.</p> <p>From the intervening space, some twenty-five feet, between the two sets of tracks, there was practically an unobstructed view to the west. As the girls reached the defendant’s tracks a train passed going west upon the further track.</p> <p>They stopped within five feet of the track nearest to them, looked both ways, and, neither seeing nor hearing an approaching train, then attempted to cross the nearest track, when both were struck, and the plaintiff’s intestate was killed, by a train going east upon that track at a high rate of speed, blowing the whistle only just before the accident, and, according to the testimony given on behalf of the plaintiff, not sounding a bell. The night was very dark, the headlight of the locomotive which struck them was lighted, and there were lights inside the cars of the train which had just gone west.</p> <p>Held, that although the case was on the border line separating questions of fact from questions of law, yet, as there was no proof to contradict the statement of the companion of the deceased that both looked in each direction before going upon the track upon which the accident happened, the question of contributory negligence was properly held by the trial court to be one for the jury.</p> <p>The deceased girl was nineteen years old and earned seven dollars per week, which she gave to her mother for the use of the family. Her father, a machinist, was sixty-one years old.</p> <p>The jury rendered a verdict for the plaintiff of 86,000.</p> <p>Held, that considering the probable length of time during which the plaintiff would enjoy the income of his daughter’s earnings, and the possibility of their interruption or diversion' by loss of employment, marriage, death or her attainment of her majority, 84,000 was a liberal allowance for the damages sustained by the plaintiff, and that the verdict should be reduced accordingly;</p> <p>That as the new Constitution had removed all limitations as to'the sum recoverable in such an action, it had become especially important that appellate courts should rigidly scan the amount awarded by juries.</p> <p>The testimony of a witness living near the crossing as to the distance at which bells or whistles of defendant’s locomotives could be heard, was admitted at the trial and excepted to by the defendant.</p> <p>Held, that its admission did not call for a reversal of the judgment.</p>

<p>Appeal by the defendant, The County of Niagara, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the • clerk of the county of Niagara on the llth day of April, 1896, upon the report of the referee.</p>

<p>Appeal hy the defendants, Frederick Klein and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 16th day of April, 1895, upon the decision of the court rendered after a trial at the Monroe Equity Term.</p> <p>This action was brought by the plaintiffs, who are the holders, by assignment, of a certain mortgage described in the complaint, to vacate a release of lands from the lien of their mortgage, and to restore such lien as to the lands described, upon the ground that the 'plaintiffs were induced to .execute such release by reason of the fraudulent representations of the mortgagor.</p> <p>The mortgage in question was made by the Jennings Park Homestead Association to the defendant Frederick Klein, and was intended originally as security for the payment of the sum of $11,500 and interest.</p> <p>The mortgage covered a tract of land in the eastern part of the city of Rochester, which had been plotted for city lots, and it contained, among other provisions, the following:</p> <p>“ The party of the first part may pay thereon at any time any sum not less than $200, to be applied on the principal thereof,” and “ the party of the second part hereby agrees to release from the lien of the mortgage * * * each and every lot of said tract,</p> <p>according to a map thereof, on payment of the assessed valuation of the said lot, and all taxes and interest and insurance on such lot as fixed by said association.”</p> <p>The premises covered by the mortgage were subdivided into forty-six city lots, and a map thereof was filed in the Monroe county clerk’s office, but the same did not show the valuation of each of the lots, as assessed by the association.</p> <p>The mortgage, together with the bond accompanying the same, ultimately came into the hands of these plaintiffs by mesne assignments, the defendant Yorrenter being one of the parties through whom the same were assigned and transferred.</p> <p>At the time the defendant Klein assigned such bond and mortgage he accompanied the same with a personal guaranty of their payment, which, guaranty passed by assignment with the bond and mortgage to these plaintiffs; and both the defendants Klein and Yorreuter executed a mortgage upon certain other property, belonging to them individually, as collateral security for the amount unpaid upon the mortgage in suit, which mortgages, together with the individual bonds of the mortgagors, also came into the hands of the plaintiffs, and are now held by them.</p> <p>At the time the plaintiffs became the owners of the original bond and mortgage there was unpaid thereon $7,825 of principal and some accrued interest, and no part of the mortgaged premises had then been released.</p> <p>On the eleventh day of February following $1,050 of principal was paid upon the mortgage, and six of the lots covered thereby were released from the lien thereof.</p> <p>On the 18th of April, 1893, the treasurer of the Jennings Park Homestead Association paid to the plaintiffs the further sum of $3,075 of principal and $275 interest, and at the time of making such payments asked for and received from the plaintiffs a release of thirty additional lots. At the time of making such payments it is alleged that the treasurer stated to the plaintiffs that the amount paid entitled the mortgagors to a release of that number of lots, and that all taxes and interest due on the same, as well as the assessed valuation thereof, had been paid to the association, and by the association to the plaintiffs; that relying trpon the truth of such statement, and believing that the sum required to be paid as a condition of such release had been fully paid, the plaintiffs executed and deliv- ■ ered their release to the mortgagor; but that, as a matter of fact, of the lots embraced in the release were not entitled, under the terms of the mortgage, to be discharged from the lien thereof, by reason of the fact that their assessed valuation, amounting to $1,295, had not been paid to the association by the owners, nor by the association to the plaintiffs.</p> <p>At the time of the execution and delivery of the release the plaintiffs had no knowledge of the assessed valuation of the particular lots, nor of the amount which had been actually paid upon the different lots to the association, as the same did not appear in the. mortgage nor upon the map held by them.</p> <p>Upon learning, as they subsequently did, that the five lots in question had been improperly released from the lien of their mortgage, the plaintiffs brought this action to vacate such release, so far as it related to these particular lots, and to have the lien of their mortgage restored to the same.</p>

<p> Plaintiff’s costs in replevin in the Supreme Court depend on proof that the value of the chattels and, the damages exceed fifty dollars. </p> <p>Where the verdict in an action of replevin merely awards the property in question to the plaintiff without damages for its detention, and no proof is made upon the trial as to the value of the property, the plaintiff is not entitled to recover any costs under subdivision 2 of section 3228 of the Code of Civil Procedure.</p> <p>The design of subdivision 2 of section 3228 of the Code of Civil Procedure is to compel the plaintiff, when he brings an action of replevin in the Supreme Court, to establish value and damages to the extent of at least fifty dollars as a condition to his recovery of a full bill of costs; this construction is in entire harmony with subdivisions 3 and 4 of the same section, all three of which subdivisions are evidently intended to force the plaintiff to bring his action in an inferior tribunal in cases where the subject-matter in controversy is of comparatively little value.</p> <p>Section 3228 oí the Code oí Civil Proceedure is entirely independent of section 1726 of that Code, the latter section having no relation to the question of costs, but being designed merely to furnish a means of ascertaining the damages which the prevailing party in an action of replevin has sustained by reason of his being deprived of the possession of his property, to the end that the damages thus ascertained may operate as a substitute or an equivalent for the property itself, where the sheriff finds himself unable to deliver possession thereof to the true owner.</p>

<p>Appeal by the defendant, Schuyler C. Wells, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Genesee upon the report of the referee, and also from an order of the Supreme Court, made at the Erie Special Term, bearing date the 4th day of February, 1896, and entered in the office of the clerk of the county of Genesee, confirming said report.</p> <p>The parties to this action were the owners, as co-partners, of a steamboat named the Shiloh, Avhich they were engaged in running upon Silver lake, in this State.</p> <p>The co-partnership Avas started in the year 1883, at which time a boat was built and placed upon the lake, where it continued to run for one season and part of another, when it was destroyed by fire. The firm then built the boat in question to take the place of the one destroyed, using in the latter boat such portions of the machinery of the first boat as were suitable for that purpose.</p> <p>Originally, the defendant McOarrick was the owner of an one-half interest in the boat, and the plaintiff and the defendant Schuyler 0. Wells were the owners of the other half, the plaintiff owning one-sixth and the defendant Schuyler 0. Wells two-sixths interest therein.</p> <p>At the time these boats were constructed, the Wells brothers were co-partners in business, at Le Roy, Genesee county, under the firm name of “S. 0. Wells & Co.,” and as such were engaged in manufacturing and selling certain proprietary medicines known as “ Shiloh ” remedies, and the boats were designed, primarily, "as advertising mediums for these remedies, although they were also employed for carrying passengers and freight.</p> <p>In the fall of 1892 negotiations were commenced between the Wells Brothers to dissolve the last-mentioned partnership, which were consummated upon the fourteenth day of October, in that year, by the sale of the plaintiff’s interest therein to the defendant Schuyler 0. Wells, and a written bill of sale of such interest was executed by the plaintiff, upon the last-mentioned date, which recited a consideration of $20,000.</p> <p>Upon the trial it was established by undisputed evidence that this consideration was made up of two notes executed by the defendant Wells of $5,000 each, and one of $4,000 or $4,500; a conveyance, by the same defendant, to the plaintiff, of an undivided one-half interest in a farm in Vermont, and the surrender by him to the plaintiff of the latter’s note of $1,757.94, which the defendant then held. It was also claimed by the plaintiff, and evidence was given tending to prove, that the defendant Wells likewise transferred to him his two-sixths interest in the steamboat Shiloh, and that such transfer was accepted by the plaintiff as a part of the consideration named for the sale by him of his interest in the proprietary medicine business.</p> <p>This action was brought to dissolve the co-partnership relating to the steamboat, and for an accounting to ascertain the rights and interest therein of the several parties.</p> <p>Previous to the trial a receiver was appointed who sold the boat, which constituted the entire assets of the firm, for the sum of $625. It was conceded that one-half of this sum, less the expense of the receivership, belonged to the defendant McOarrick, the only issue in the.case being as to the ownership of the other half, the plaintiff claiming the whole of it, and the defendant Schuyler 0. Wells insisting that he still owned two-sixths thereof.</p> <p>The case was referred and this issue was determined by the referee in favor of the plaintiff; and the defendant Wells appeals from the judgment entered upon such report as well as from an order confirming the same.</p>

<p>Appeal by tlie defendants, Lansing W. Cornell and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 19th day of December, 1895, upon the verdict of a jury, rendered by direction of the court after a trial at the Onondaga Circuit on the 11th day of October, 1895.</p>

Appeal by the plaintiff, Henry Wittenberg, from a judgment of the Supreme Court in favor of the defendants John J. L. Friederich and others, entered in the office of the clerk of the county of Monroe on the 25tli day of January, 1896, upon the dismissal of his complaint as against the respondents, rendered after a trial at a Trial Term of the Supreme Court, had in and for the county of Monroe, on the 17th day of January, 1896.

<p> Negligence—liability of a sub-contractor to an employee of the contractor for an injury cmsed by the falling of an attic floor built by the sub-contractor—negligence may be presumed from the fall of the floor. </p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendants, it appeared that the defendants A. Friederich & Sons had contracted with the State to erect an annex to a hospital, and that the defendant Frederick 0. Seitz was a sub-contractor, who had contracted with the defendants Friederich to do the carpenter work of the building, and worked directly from plans and specifications furnished, the defendants Friederich having no control over him either in the selection of the material used or in the performance of the work.</p> <p>The plaintiff, an employee of the contractors Friederich, was sent up to the attic of the building with a quantity of brick to be used by the masons of the contractors in building a wall when the floor of the attic suddenly fell and the plaintiff was injured. The precise cause of the accident was not shown clearly, but it appeared that a tie beam running from one wall of the building to the other had broken at a point about fourteen feet from one wall; that at the point where it broke there were eleven knots of considerable size; that a hole more than an inch in diameter had been bored through the beam, and that upon its . under side a mortise had been cut about six inches in diameter and one and one-half inches deep.</p> <p>Held, that the defendant Frederick 0. Seitz was liable to the plaintiff, although he had not employed him, as the law imposes upon a party engaged in the prosecution of any work the duty of performing it in such a manner as not to endanger the lives or persons of others;</p> <p>That as the plaintiff was an employee of the principal contractor, and had occasion while in the performance of his duty to go into the attic, he was lawfully there and had a right to assume that he would not while there be unnecessarily exposed by the sub-contractor to any danger to his life or person;</p> <p>That while the cause of the action might not clearly appear, the very fact that the floor fell created a presumption of negligence, and called upon the defendant Frederick 0. Seitz to show that he had exercised that reasonable degree of care in constructing the floor which was required of him by law.</p>

<p>Appeal by Frank B. Le Fevre, a judgment creditor of the defendant, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 20tli day of February, 1896, denying his motion to vacate an attachment procured by the plaintiff upon the property of the defendant.</p> <p>The plaintiff is a foreign corporation, organized under the laws of the State of Ohio, and the defendant is likewise a foreign corporation, organized under the laws of the State of West Virginia, having its manufactory and place of business in the city of Buffalo, in this State.</p> <p>On' the 27th day of July, 1895, the defendant sent to the plaintiff at Shelby, in the State of Ohio, a written order for the goods, wares and merchandise mentioned in the complaint. This order was sent by letter, which was mailed at Buffalo. It was subsequently received and accepted by the plaintiff, and the. goods ordered were thereafter sent to the defendant and delivered to it at Buffalo, in the ordinary course of business, and upon a credit of sixty days.</p> <p>After the expiration of the term of credit the plaintiff commenced an action against the defendant, in which judgment was entered upon the 10th of January, 1896, in the clerk’s office of Erie county for §273.70. This judgment was thereafter vacated and set aside by an order of the Supreme Court. The plaintiff also obtained a warrant of attachment from the county judge of Erie county, by virtue of which it caused all the personal property of the defendant to be attached.</p> <p>Upon the 20th day of January, 1896, Frank B. Le Fevre obtained a judgment against the defendant in the Supreme Court, and caused the same to be entered in the Erie county clerk’s office for the sum of $141,920.70, damages and costs.</p> <p>The plaintiff had no office or place of business within this State, and has failed to obtain the certificate and file the proof required by sections 15 and 16 of the General Corporation Law. (Laws of 1892, Chap. 687.)</p> <p>Upon the 3d day of January, 1896, the above-mentioned judgment creditor moved at a Special Term of the Supreme Court, in the city of Buffalo, to vacate the attachment obtainéd by the plaintiff; which motion was denied, and from the order denying the same this appeal was taken.</p> <p>After the decision of the above-mentioned motion the attorneys for the plaintiff and for the judgment creditor entered into a written stipulation as to the facts of this case; which stipulation appears in the appeal book and contains, substantially, the facts above stated.</p>

Appeal by the plaintiff, Ferdinand Griebel, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe, dismissing the complaint on the merits, on the 16th day of July, 1892, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order bearing date the 6th day of June, 1892, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Clarence G. Brown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 20th day of November, 1895, upon the verdict of a jury rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 13th day of November, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This action was begun March 19th, 1895, to recover damages for an alleged trespass in entering, December 19th, 1894, the plaintiff’s dwelling, injuring the furniture, pictures and ornaments therein, and wrongfully carrying away a drafting board and supports thereof and two squares. It is alleged that this trespass was committed by the defendant personally, aided by several men acting under his direction; that he moved the furniture and the contents of the house about, leaving it in great confusion, and that the conduct of tlie defendant and his assistants was violent and disorderly. The defendant in his answer set up two defenses: (1) A general denial; (2) that, December 19tli, 1895, a search warrant was issued by the Court of Special Sessions of the city of Syracuse, directed to an officer of said city, commanding him to search for certain personal property of the defendant which had been taken and carried away from his premises; that on that date an officer, accompanied by the defendant, searched the plaintiff’s dwelling, pursuant to the command of the warrant, and carried away certain articles of the defendant’s property found in the dwelling; that the defendant did nothing except to identify his property, and that the search was conducted in a proper manner. The jury rendered a verdict for 81,000- The defendant moved on the minutes for a new trial on all tlie grounds specified in section 999 of the Code of Civil Procedure, which motion was granted unless the plaintiff stipulated to reduce the damages to $500; and, in case the stipulation was given, the motion was denied. The stipulation was given and the judgment entered for $500 damages and $91.41 costs.</p>

<p>Appeal by the plaintiff, IVIary Lynch, an infant, by her guardian ad litem, John Lynch, from a judgment of the Supreme Court in favor of the defendant, the New York Central and Hudson River Railroad Company, entered in the office of the clerk of the county of Niagara on the 15th day of April, 1896, upon an order granted at a Trial Term of the Supreme Court, held in and for the county of Niagara, dismissing the plaintiff’s complaint as to the defendant, the New York Central and Hudson River Railroad Company.</p> <p>This action was begun October 17, 1894, to recover damages for personal injuries caused, it is alleged, by the negligence of the defendant. The respondent owns and operates a steam railroad along the east bank of Niagara river, between Lewiston and Suspension Bridge. June 27, 1894, the plaintiff held a ticket entitling her to ride on the respondent’s road from Suspension Bridge to Lewiston and return. She made the trip from Suspension Bridge to Lewiston in safety, and later in the day took passage on one of defendant’s trains to return to Suspension Bridge'. While on her return, a car loaded with stone was precipitated through the side of the passenger car in which she was riding, by means of which her skull was fractured and other serious injuries inflicted.</p> <p>At the time of the accident, Earl Buttery was, and for about two years had been, the owner of and engaged in working a stone quarry on the east side of and abutting on the respondent’s railroad. This quarry is located on the side of a hill about eighty feet above the main tracks of the respondent’s railroad. To facilitate the shipment of stone by the respondent’s cars, it constructed a side track about twenty-five feet east of its east main track, on which side track the cars on which the stone was loaded were placed. Immediately east of the east rail of this side track, and on the respondent’s land, a platform was constructed nine feet wide, and higher than the side track. From this platform Earl Buttery constructed a double-track gravity road to his quarry, which is 188 feet in length, 158 feet of it being on his own land and 30 feet of it on the land of the railroad. This gravity road intersects the railroad at right angles. Its gauge is about three feet, and the two independent tracks are about two feet and two inches from each other. The highest point of the gravity road is in the quarry, and 73 feet higher than the platform. From this point, descending to the west towards the platform, there is a grade or fall of 10 feet in the first 75 feet; the grade then changes, and from the point where it changes to the platform the distance is 113 feet. This point at which the grade changes is 63 feet above the platform, so that there is a fall of grade of 63 feet in 113 feet. This gravity road was operated by two cars, each being about eight feet long and four and one-half feet wide, mounted on four wheels. The cars were so connected that when one loaded with stone was let down to the platform an empty car was drawn back from the platform to the. quarry, was there loaded, and let down to the platform. These cars were lowered and raised by a wire cable attached to a drum in a building at the quarry, called the drum house. A brake was applied to the drum, around which the cable wound by means of a lever operated by a man stationed at the drum house. By the application of the brake the velocity of the'descending ear loaded with stone was sought to be, and generally was, controlled. But on two occasions, and within a year before this accident, a loaded car escaped and was precipitated on to, and on one occasion over, the main tracks of the respondent’s road. The sectionmen employed by the respondent knew of these accidents, helped clear the main tracks of the stone which fell from the car, and the respondent’s foreman on this section of the railroad knew of both accidents.</p> <p>On the occasion in question a car was loaded with stone at the quarry and pushed by the employees of Buttery along the level portion of the track lying in the quarry until the car reached a point on this road where it would run by the force of gravity down to the platform on the respondent’s railroad. The men who pushed the car into place supposed that the employee whose duty it was to operate the drum and brake was at his station, and they shouted to him that the car was ready to go down and that a train was approaching on the railroad; but for some reason the brake was not applied, or, if applied, failed to control the movement of the loaded car. The evidence tends to show that the man whose duty it was to operate the brake was not at his station in the drum house, and that the velocity of the descending car was in nowise controlled. At the moment when this descending car reached the respondent’s track, the train on which the plaintiff was riding passed, and the stone car dashed over the platform and through the side of the passenger car, injuring the plaintiff, as hereinbefore stated. There was some evidence that the drum and the appliances for controlling the movement of the stone car were crude and not well constructed.</p> <p>On the trial a nonsuit was granted hi favor of the railroad company, and a verdict was recovered against Earl Buttery for $2,750.</p>

<p>Bastard — application to. inquire into the facts may be made by one of two overseers of the poor of a town — 1 B. 8. (9th ed.) 727, 729 — Laws 1890, chap. 569, §§ 12, 18— Code Criminal Procedure, § 840.</p> <p>Under section 840 oí the Code of Criminal Procedure, providing that when an illegitimate child is horn, or likely to he horn, “a superintendent of the poor of the county, or an overseer of the poor or other officer of the almshouse of the town or city where the woman is, must apply to a justice of the peace or police justice in the county to inquire into the facts of the case,” one overseer of the poor of a town may, without consulting with the other overseer, if there he two, make the application and institute the proceeding.</p>

<p>Appeal by the defendant, William R. Tobey, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the lTth day of April, 1896, upon a decision of the court rendered after a trial at the Onondaga Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.</p>

<p>Appeal by the defendant, Robert M. Benedict, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Ontario on the 23d day of August, 1895, as resettled by an order entered in said clerk’s office on the 9th day of September, 1895, authorizing the plaintiff to continue in possession of certain premises described in a petition in condemnation proceedings, pursuant to section 3379 of the Code of Civil Procedure, during the pendency of the proceeding, and staying all proceedings on the part of the defendant in certain actions brought and proceedings instituted by him against the plaintiff..</p>

<p> Negligence—accident on a path to a railroad, station, crossed by a switch track—a prospective passenger upon such a path need not look both ways at the point where the switch track crosses the path. </p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it appeared that the defendant’s railroad ran east and west through a village, crossing Tuscarora street at right angles at a point east of the railroad station, from which street to the station the defendant had, for thirty years, for the convenience of persons going to and from its station, maintained a path along its north track. A switch track, crossing this path at a point about midway of its length, led off from the north track, and branched into two tracks known as the “hill switch ” and the “ platform switch.” An east-bound freight train with its locomotive at the east end, having backed westward upon the main switch in order to shove a car upon the "hill switch,” returned upon the main switch, stopped and backed again westward to go upon the “platform switch.” In so doing it ran over and killed the plaintiff’s intestate as he walking from Tuscarora street along the path, westward, to the station where he was to take a train. There was evidence tending to show that, when the intestate approached the ' point where the switch track crosses the path, there was neither flagman nor signal to warn him that the train had suddenly changed its direction and was coming up behind him.</p> <p>Held, that a verdict for the plaintiff was proper;</p> <p>That the rule requiring a traveler on a highway which crosses a railroad to look and listen for approaching trains, did not apply to a person who was crossing a track on a walk, constructed by a railroad, for the purpose of going to the railroad station to become a passenger.</p>

<p>Negligence—boy struck at a railroad crossing — speed greater than permitted by a city ordinance—contributory negligence—public street, used as such, presumed to be legally laid out.</p> <p>In an action brought to recover damages resulting from injuries caused by the alleged negligence of the defendant, it appeared that Hydraulic street, running north and south in the city of Buffalo, was crossed at grade by the defendant’s double-track railroad which, in addition to its main tracks, had on the south of them three side tracks which crossed Hydraulic street, and still south of these, three side tracks, used for the storage of cars, which did not cross that street. Some cars were standing on the most southerly of these latter tracks, and there were also cars upon the next side track on the north. The plaintiff was walking northerly on the west side of Hydraulic street. As he approached the crossing two locomotives were going east on the south main track. He waited for them to pass, then looked both ways and, seeing no trains, started forward and was struck on the north main track by a train going west at a speed of twenty miles an hour, in violation of a city ordinance which fixed the speed “across any public street at grade,” in the city, at six miles an hour.</p> <p>Held, that the question of contributory negligence was properly submitted to the jury (Adams, J., dissenting);</p> <p>That it was negligent in the defendant to run its trains past the crossing, which was unguarded, at the rate of twenty miles an hour;</p> <p>That as it appeared that the place in question had beemused as a public street for at least five years, if the defendant wished to raise the question whether the city ordinance was applicable, it should have given evidence to rebut the presumption arising from such use;</p> <p>That it was not necessary for the plaintiff to show that the street in question had been legally laid out.</p>

<p>Appeal by the plaintiff, James E. Cox, from a judgment of the County Court of the county of Cayuga in favor of the defendant, entered in the office of the clerk of the county of Cayuga on the 25th day of March, 1896, upon the verdict of a jury rendered upon an appeal from a judgment in favor of the defendant, recovered in the City Court of Auburn.</p> <p>This action was bégun December 16, 1895, in the City Court of the city of Auburn. Two causes of action are set forth in the complaint : (1) To recover $125 rent for the use of certain premises from November 1, 1891, to April 2, 1892, less $24 received from another tenant, leaving $101, with interest from April 1, 1892, claimed to be due; (2) to recover $6 damages alleged to have been sustained by reason of the failure of the defendant to leave the premises in as good condition as when he took possession of them.</p> <p>The defendant set up three defenses in his answer: (1) He denied that he was the tenant of the plaintiff from November 1, 1891, to April 1, 1892; (2) he alleged that about April 1, 1888, the litigants entered into an oral agreement, by which the defendant was to occupy the premises after April 1, 1888, for such a term as he might desire, for the yearly rent of $300, payable quarterly during the period of his occupancy; (3) that in October, 1891, the defendant surrendered possession of the premises to the plaintiff, paid the rent in full to November 1,1891, and that the plaintiff then received possession of the premises from the defendant, and thereafter leased them to other jjersons.</p> <p>The case was tried before a jury in the Oity Court and a verdict for no cause of action rendered, on which a judgment was entered, from which the plaintiff appealed to the County Court of the county of Cayuga and demanded a retrial, which he had, and a verdict of no cause of action was rendered on which the judgment appealed from was entered.</p>

<p>Appeal by the plaintiff, The Town ° of Mount Morris, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 31st day of July, 1895, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the complaint on the merits, with costs.</p> <p>This action was begun June 23, 1892, to compel the defendant John King individually, and as trustee to assign to the plaintiff 250 shares of the capital stock of the Avon, Geneseo and Mt. Morris Railroad Company, which the plaintiff assigned to the predecessor of John King, December 26, 1871.</p> <p>The plaintiff now is, and since April 17, 1818, has been, one of the towns of the county of Livingston, in this State. (3 R. S. 520.) It is conceded that, pursuant to chapter 907 of the Laws of 1869, the plaintiff in 1870 duly issued bonds for $25,000 to aid in the construction of the Avon, Geneseo and Mt.. Morris railroad, and that August 24, 1871, said bonds were delivered to .said railroad corporation in exchange for 250 shares of its stock of the par value of $100 each, for which a certificate of stock was issued. In the autumn of 1871 negotiations were pending between the Avon, Geneseo and Mt. Moms Railroad Company and the Erie Railway Company in respect to the latter’s leasing and operating the road of the former corporation. As a consideration for entering into the lease the Erie Railway Company required that the shares of stock held by the plaintiff be assigned and transferred to it. In November or December, and before the 15th of December, 1871, a special town meeting of the taxpayers of the town was called to determine whether the terms should be complied with. The object of the meeting and the merits of the question were discussed in the local newspapers of the county. At this meeting there were present 300 or 400 citizens of the town, all of whom, except one, voted in favor of transferring the stock, as required by the Erie Railway Company.</p> <p>In December, 1871, a majority of the taxpayers of said town, representing a majority of the taxable property thereof, as shown by the last tax list or assessment roll, signed a petition to the county judge of the county of Livingston, setting forth that the town owned 250 shares of the capital stock of the Avon, Geneseo and Mt. Morris Railroad Company, a certificate for which was then held by the commissioners of the town. The petition contains the following clause: “ And your petitioners further show that they believe it will be for the interest of said town that the said commissioners be authorized and empowered to dispose of said stock for such consideration as may be for the best interest of said municipal corporation, and also in consideration that the Erie Railway Company shall put the said Avon, Geneseo & Mount Morris Railroad in first-class order and take a lease of said railroad company to run the same for the period of the uuexpired term of the charter of the Avon, Geneseo & Mount Morris Railroad Company, to keep the same in first-class order, making the village of Mount Morris a point on said road for the benefit of said municipal corporation.”</p> <p>December 15, 1871, the taxpayers’ petition was presented to the county judge of the county of Livingston, who on that day made and entered an order which contains, among other provisions, the following: “ I, Solomon Hubbard, county judge of Livingston county, hereby order that said commissioners aforesaid be empowered and fully authorized to sell said railroad stock aforesaid as in their judgment may be for the best interest of the said town of Mount Morris. I hereby also certify that said order is hereby made and granted upon the petition of a majority of the taxpayers of said municipal corporation representing a majority of the taxable property thereof, as shown by the last tax list or assessment roll of said town of Mount Morris, in the county and State of New York aforesaid.</p> <p>“ And" I further certify all the facts herein set forth have been duly proved before me to my satisfaction this 15th day of December, 1871.”</p> <p>December 26, 1871, the commissioners of the town executed an assignment of said 250 shares and of the certificate under which they were held to “ Jay Gould, trustee for the Erie Railway Co.” who, December 29, 1871, surrendered said certificate, with said assignment indorsed thereon, to the Avon, Geneseo and Mt. Morris Railroad Company, which issued a new certificate to “Jay - Gould, as trustee,” which was dated that day and numbered 262. March 8, 1872, Jay Gould assigned and transferred certificate No. 262 to Hugh J. Jewett, as receiver, who, March 22, 1876, surrendered said certificate and assignment to said railroad corporation-and received a new certificate for said shares in his name as receiver. May 10, 1880, said Hugh J. Jewett, as receiver, assigned said shares to himself as president, and the certificate was surrendered to said railroad corporation and a new certificate for said shares was issued to Hugh J. Jewett, as president. February 10, 1885, Hugh J. Jewett transferred said shares to the defendant, John King, as trustee, who surrendered said certificate and received a new one therefor under which said shares are now held by said John King as trustee for the New York, Lake Erie and Western Railroad Company, which has succeeded to the rights of the Erie Railway Company in said shares and in and to the railroad of the Avon, Geneseo and Mt. Morris Railroad Company.</p> <p>December 27, 1871, the Avon, Geneseo and Mt. Morris Railroad Company and the Erie Railway Company entered into a contract by which the former leased to the latter its railroad for and during the full term of its charter, and for any extensions or renewals thereof which might be granted in consideration of the payment of six per cent upon the capital stock of the first-named corporation, payable semi-annually, and of the interest on $20,000 of the mortgage bonds of said corporation, together with $100 annually for the expense of maintaining its corporate existence. Thereafter the Erie Railway Company entered upon the possession of said railroad, and it and . its successors have maintained and operated it from that time to the present.</p>

<p>Tenants in common —when one is chargeable by his co-tenant with use and occupation— commissions on rents collected by a tenant in common — animal rests — rule of liability where a person has been guilty of constructive, rather than actual fraud.</p> <p>In August, 1853, John Collins died intestate, leaving a widow, Mary A. Collins, aged forty years; George K. Collins, aged sixteen years; John A. Collins, aged eight years, and Frank Collins, aged three years, as his only heirs at law and next of kin. In the same year the widow was appointed administratrix, hut no general guardian was appointed for any of the infants. At his death John Collins owned certain real property known as the Collins block, which was incumbered by a mortgage for §2,400, and after his death the widow and sons resided in that building and together managed the property until 1862, when the mortgage was foreclosed, by the inducement of George K. Collins, one of the defendants, who purchased the property at the foreclosure sale for §210 and gave a mortgage thereon for §2,400. In the same year John A. Collins married and took up his residence in the block, and continued to reside there, paying.no rent for the rooms which he occupied, and being supported in great part from the rents and profits of the building, which were received by his mother. In 1873 Frank Collins became of full age and conveyed his interest in the premises and in the rents and profits to George K. Collins for §8,000.</p> <p>In 1887 John A. Collins, having then first learned that George K. Collins claimed to be sole owner of the premises, began an action to set aside the foreclosure and to recover his share of the rents and profits collected by George K. Collins and his mother, in which action an interlocutory judgment was entered by which it was adjudged that the foreclosure was induced by the defendant George K. Collins, and that his purchase of the premises was in fraud of the rights of his brothers, and that an accounting should be had of the rents and profits, of which the plaintiff was entitled to recover two-ninths, the widow three-ninths, and George K. Collins four-ninths.</p> <p>Held, that while as a general rule one tenant in common could not charge his co-tenant for use and occupation, the referee in this case properly charged the plaintiff for the rent of the rooms which he occupied, as well as for supplies furnished to the plaintiff and his family by Ms mother:</p> <p>That the plaintiff was also properly charged with two-ninths of the amount to which the mother was found to be entitled for collecting that part of the rents of the building which she had collected;</p> <p>That, under the circumstances; the accounts were properly stated without annual rests, and that the defendant George K. Collins was not chargeable with interest upon the balances in his hands;</p> <p>That George K. Collins had been guilty of constructive, rather than intended, fraud, and that the principles applicable to an accounting by a trustee, who has in his hands a definite or ascertainable fund, the income of which it is his duty to invest and pay over, were inapplicable.</p>

<p>Appeal by the defendant, The Lake Ontario Beach Improvement Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe <on the 2d day of February, 1893, upon the verdict of a jury rendered after a trial at the Monroe Circuit, and also from an order entered in said clerk’s office on the 17tli day of September, 1895, denying the defendant’s motion for a new trial upon the minutes.</p>

<p> Bastards—the liability of the father to support them, is purely statutory—the mother cannot prosecute the father nor appeal from an order made in a proceeding against him. </p> <p>At common law the father was under no legal liability to support his illegitimate child, and the liability which now exists was created and exists solely by virtue of the statute.</p> <p>The proceedings authorized by the statute are solely for the indemnification of the civil division of the State in question from liability to support the bastard. When they are instituted hy any person other than the officers authorized by the statute to do so the magistrates do not acquire jurisdiction.</p> <p>Where the proper public officers, after instituting such proceedings against the father, fail to prosecute them because of a settlement, legal or illegal, made with him, the mother cannot prosecute the proceedings against him, nor can the mother appeal from any order or adjudication made in such proceeding against the father.</p>

<p>Foreclosure — where one alleged to have a subsequent lien anstoevs and sets up a prior equitable lien, his answer should not be stricken out as frivolous.</p> <p>In an action brought to foreclose a mortgage a party defendant interposed an answer specifically denying the allegation of the complaint, that his interest in' the mortgaged premises was subsequent to that of the plaintiff, and further alleging that he had an equitable lien which was superior and prior to that of the plaintiff’s mortgage, which lien had been improperly and fraudulently released, of which the plaintiff had knowledge at the time of the commission of such fraudulent act, which took place just previous to the execution of the mortgage to the plaintiff.</p> <p>The answer was stricken out as frivolous.</p> <p>Held, that the answer was improperly stricken out;</p> <p>That a defense should never be stricken out as frivolous and judgment be given thereon unless the defense is plainly frivolous;</p> <p>That the rule, that, in such an action, the rights of the person, having a title superior to that of the mortgagor, and made a defendant upon an allegation that he had-some claim to or interest in the mortgaged premises which accrued subsequently to the execution of the mortgage, would not be affected by the judgment, did not apply where such a defendant sets up by answer his prior right or claim and asks the court to determine as to his title to the premises; That, within the provisions of section 463 of the Code of Civil Procedure, in the interest of a complete determination of the controversy, the answering defendant was a proper party defendant and his answer should have been allowed to stand, and the issue raised thereby should have been determined in the action.</p>

Appeal by tbe defendants, Charles S. Averill and another, from' a judgment of tlie County Court of Onondaga county in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 4tli day of December, 1895, upon the verdict of a jury rendered after a trial before the court and a jury, and also from an order bearing date the 27tli day of November, 1895, and entered in said clerk’s office, denying the defendants’ motion for a new trial upon the…

Appeal by the plaintiff, William W. Mumford, as receiver of the property of George II. Powell and William J. Powell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of - the clerk of the county of Monroe on the 24th day of April, 1896, upon the decision of the court, rendered after a trial at the Monroe Special Term.

<p> Stipulation by am, assignee for creditors that judgment be entered, in his favor, but that no execution issue until a claim of the defendant against the predecessor of the trustee be determined, enforced. </p> <p>Prior to 1891 Alson Wider made a general assignment for the benefit of his creditors to Charles A. Wider, who subsequently died and Galusha P. Eames was appointed a trustee to execute the trust. In April, 1894, E. Merriam Bagg, who claimed to have rendered services to the assigned estate at the request of Charles A. Wider, the assignee, applied by petition to the County Court and obtained a citation requiring Eames to appear, in order that the compensation of the defendant for such services might be determined. On the return day of the citation the proceeding was adjourned, but on the adjourned day the county judge did not appear, and for that reason no proceedings were had. At this time an action had been brought by Eames as trustee against Bagg to recover the amount of a promissory note made by Bagg to Alson Wider in which, after issue had been joined, the parties entered into a stipulation by which the plaintiff in that action was allowed to take judgment, upon condition that no-transcript or execution should be issued upon the judgment until the question of the defendant’s compensation had been settled by the county judge, and that, if he so directed, the compensation and expenses should be applied on the judgment. In violation of this stipulation the plaintiff filed a transcript of the judgment so entered in his favor, issued execution thereon, and instituted supplementary proceedings thereunder.</p> <p>Meld, that the execution and the order for the examination of the defendant should, be set aside:</p> <p>That the stipulation made was valid, and bound the estate of Alson Wider;</p> <p>That, in order to avoid circuity of action, it was proper that the defendant should offset his claim for services to and disbursements for the assigned estate, against the claim existing in favor of the assigned estate against him.</p>

Appeal by the plaintiff, Howard B. Hayden, an infant, as a poor person, by Henry Burlew, as guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 28th day of August, 1895, upon the decision of the court, after a trial at the Onondaga Special Term.

<p>Bom'd of supervisors—rejection of a legal claim, because the bom'd believes it to be illegal— technical objections to the form of the claim cannot be raised for the first time upon an appeal—mandamus.</p> <p>A justice of the peace presented to a board of supervisors a bill for his fees and services in a criminal proceeding, amounting in the aggregate to fifteen dollars and three cents, one item of which was in the following words and figures: “ 20 certificates, at 25c., $5.00.” This item was disallowed, because the committee of the board of supervisors, to whom the matter was referred, believed it to be an improper charge. It appeared by the affidavit of the justice, read on an application for a mandamus against the board, and it was not denied, that the relator had taken the depositions represented by this charge and had certified to them.</p> <p>Held, that, in the absence of proof to controvert the affidavit of the justice that he did take and certify the depositions of the witnesses in writing, the court must conclude that those services had been rendered by him as required by section 204 of the Code of Criminal Procedure;</p> <p>That the justice was entitled under the provisions of the Revised Statutes (4R. S. [8th ed.] 2785) to charge twenty-five cents for each certificate, and that it was the duty of the board of supervisors to audit and allow the charge therefor;</p> <p>That the objection that the specifications of the bill were insufficient, and the affidavit attached thereto indefinite, could not bo taken for the first time on an appeal;</p> <p>That a peremptory writ of mandamus should be granted directing the board to hear, consider and determine whether the services were rendered by the justice, and, if they were, to audit the claim.</p>

Appeal by Charles IT. Zimmer, as receiver of the property of John R. Zimmer, from so much of a judgment of the County Court of Lewis county, entered in the office of the cleric of the county of Lewis on the 30th day of January, 1895, settling the accounts of the assignee of Stephen T. Miller and Charles M. Allen, and directing the distribution of the estate among the respective parties adjudged entitled thereto, as adjudges and decrees that Charles A. Miller is entitled to…

<p> Subscription to build a church—when it expresses a sufficient consideration. </p> <p>An instrument in writing, directed to tire trustees of a church, by which the subscriber agrees to pay “ the sum of one hundred dollars a year for five years toward the purchase of land and the erection of a new auditorium, and such improvements as” the trustees of the church “have contemplated,” where the church, upon the faith of this and other subscriptions, has proceeded to purchase land and construct a building at a cost exceeding the amount subscribed, expresses a sufficient consideration to sustain the promise.</p>

<p>Conditional sale of a portable furnace—rights of a mortgagee of the house in which it •is put, where the conditional vendor fails to file the conditional contract of sale — burden of proof as to bona fides and notice—effect of the amendment of chap. 315 of 1884 by chap. 684 of 1893.</p> <p>Where a portable furnace has been purchased by the owner of a house, subject to the condition that it shall remain the property of the vendor until fully paid for, and has been placed in the house in such wise that it can be removed therefrom without injury to the freehold, there remains impressed upon it the character of personal property, and the vendor has a.right to remove it from the house upon the failure of the vendee to pay for it.</p> <p>In such a case the holder of a mortgage upon the house is not entitled to claim that the furnace is covered by his mortgage, because of the provisions of chapter 315 of the Laws of 1884, as amended, to the effect that, upon a conditional sale of goods, accompanied by immediate delivery and followed by an actual continued change of possession, all conditions and reservations, which provide that the ownersliip of the goods is to remain in the vendor until the goods are paid for, shall be absolutely void as against subsequent purchasers and mortgagees in good faith, unless the contract of sale, or a copy of it, be filed in the proper county clerk’s office — unless he shows affirmatively that he is a mortgagee in good faith, and without notice of the rights of the vendor, and he is not relieved from making such proof by the omission of the defendant to file the mortgage or bill of sale.</p> <p>(¿mere, whether the fact that “portable furnaces” were taken out of the provisions of chapter 315 of the Laws of 1884, by chapter 684 of the Laws of 1893, did not operate to take away the plaintiff’s cause of action which was based upon the former statute.</p>

<p>Motion by the plaintiff, Margaret Maloney, for a new trial upon a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the defendant, rendered by direction of the court after a trial at the Erie Circuit on the 24th day of September, 1895.</p>

<p> Injunction restraining a multiplicity of creditoi's’ suits, brought against the stoekholders of an insolvent corporation—the liability of the stockholders is a legal liability. </p> <p>Where many creditors of an insolvent corporation have brought separate actions against stockholders who are severally individually liable for its debts, the Supreme Court has power, at the instance of a creditor suing on behalf of himself and of all other creditors, to secure an accounting and an adjudication as to the respective liabilities of the respective stockholders, to restrain the creditors who have brought individual actions from the further prosecution of their actions, to the end that the rights of all the creditors and the liabilities of all the stockholders may be adjudged in one action.</p> <p>The liability of a stockholder for the debts of the corporation, under the Stock Corporation Law, is a legal liability.</p>

<p>Torts—the plaintiff cannot bring in a new party defendant—appeal by the original defendant from an order authorizing it— Oode of Oiml Procedure, §§ 453, 733.</p> <p>In ¡m action brought to recover damages resulting from injuries to the plaintiff, caused by the alleged negligence of the defendant in leaving a hole in the sidewalk in front of premises owned by him improperly guarded, the court should not give leave to the plaintiff to issue a supplemental summons, directed to a tenant in the occupation of the premises (making him a party defendant to the action), and to serve a supplemental complaint.</p> <p>The provision of section 453 of the Oode of Civil Procedure, providing that, where a complete determination of a controversy cannot be had without the presence of other parties, the court must direct them to be brought in, applies only to equitable actions.</p> <p>The provision of section 733 of the Code of Civil Procedure, authorizing the court, in furtherance of justice, to add or strike out the name of a party or to correct a mistake in such name, applies to cases in which the party sought to be brought in is a necessary party, or interested in the event of the action, in connection with the original parties thereto, which would not be true in a case where two tort-feasors are severally liable.</p> <p>The original party defendant has a right to appeal from such an order.</p> <p>Follbtt, J., dissented upon the ground that the court had power, under section 728 of the Code of Civil Procedure, to authorize an additional defendant to be brought into an action of law.</p>

<p>Appeal by the defendants, George A. McDonough, as commander of Alpha Lodge, Mo. 1, of the Order of the Knights of Sobriety, Fidelity and Integrity, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 2d day of January, 1896, upon the decision of the court, rendered after a trial at the Onondaga Special Term.</p>

<p>Appeal by the plaintiffs, Herman T. Ivoerner and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 29th day of February, 1896, upon the decision of the court rendered at Special Term upon an appeal by the plaintiffs from a judgment in favor of the defendant rendered in the Municipal Court of' Buffalo.</p>

<p>Appeal by the defendant, Matilda Gillette, as executrix, etc., of Caleb W. Bishop, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 25th day of March, 1896, upon the decision of the court rendered after a trial at the Yates Special Term overruling the defendant’s demurrer to the complaint.</p>

<p>Order affirmed, with costs and disbursements, on the opinion of the referee. The following is the opinion of the referee:</p>

<p>Order affirmed,without costs, to either party.&emdash;</p>

<p>Motion denied---</p>

<p>Per curiam opinion filed with the clerk and an order to be entered in accordance with the opinion.</p>

<p>Judgment and order affirmed, with costs.</p>

In Lynch v. Sanders judgment reversed.and a new trial granted, costs to abide the event. In Moore v. Eldridge judgment reversed as to that portion thereof relating to the east half of lot 57, and a new trial granted, and as to the west half affirmed, without costs of the appeal; all other costs to abide the event.—

<p>Judgment reversed and a new trial granted, costs to abide the event.—</p>

<p>Order reversed, with costs and disbursements, and m otion for injunction denied, with costs.</p>

<p>Judgment and order reversed and a new trial granted, costs to abide the event.</p>

<p>Order reversed, with ten dollars costs and disbursements, and motion for preference granted.</p>

<p>Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars</p>

<p>— Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.—</p>

<p>— Orders affirmed, with ten dollars costs of each appeal and disbursements.—</p>

<p>— Order affirmed, with ten dollars costs and disbursements.—</p>

<p>Order reversed, ten lars costs and disbursements and the motion granted.</p>

<p>Order reversed, with costs, and cause restored to the Special Term calendar for trial.</p>

<p>Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.</p>

<p>Order affirmed, with ten dollars costs and disbursements.</p>

<p>Order affirmed, with ten dollars costs and disbursements, without prejudice to another application upon new papers.</p>

<p>Another. — Order reversed, with ten dollars costs and disbursements, and motion denied.—</p>

<p>Order affirmed, with ten dollars costs and disbursements on the opinion of Rumsey, J., delivered at Special Term.—The following is the opinion of Rumsey. J.:</p>

<p>Judgment affirmed, with costs on the opinion of Vann, J., delivered at Special Term, and upon Wright v. Syracuse, Ontario & New York Railroad Co. (92 Hun, 32).—The following is the opinion of Vann, J.:</p>

<p>Parts of decree appealed from affirmed, with one bill of costs to respondents, payable out of the estate.—</p>

<p>Each order affirmed, with ten dollars • costs and disbursements.</p>