Volume 80 — New York Appellate Division Reports

Appeal by the defendant, Lee A.. Agnew, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of Hay, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the separate defense set up in the second division of defendant’s amended answer.

<p>Appeal by the plaintiff, Eva Diekescheid, as administratrix, etc., of George J. Diekescheid, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 13 th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the defendant, The Oity of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of June, 1902, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

<p>A cause of action, alleged in an amended complaint, when not properly stricken out as inconsistent with orders bringing in other parties defendant — effect of the orders, how determined.</p> <p>When a cause of action set forth in an amended complaint should not be stricken out upon the ground that it is inconsistent with the provisions contained in orders previously made in the action upon motions made by the plaintiff to have certain parties joined as defendants, considered.</p> <p>In determining the effect to be given to an order denying a motion to bring into an action an additional party defendant, the order made, not the reason given for refusing the motion, must be considered.</p>

Appeal by the defendant, Edwin G-. Kramer, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of May, 1902, upon the verdict of a jury rendered by direction of the court.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of June, 1902, upon the verdict of a jury for $1,800, and also from an order entered in said clerk’s office on the 19th day of June, 1902, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Wells, Fargo & Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of Hay, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of Hay, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 3d day of June, 1902, upon the verdict of a jury for $1,150, and also from an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, the Snow-Church Surety 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 29th day of August, 1902, directing an examination of defendant’s books and papers to enable plaintiff to frame its complaint.</p>

<p>Appeal by the plaintiff, Hollie Lentschner, an infant, by Charles Schwartzberg, her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 16th day of July, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendant, the American Bridge Company 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 18th day of November, 1902, enjoining the defendant from prosecuting an action instituted by it against the plaintiff in the Superior Court, county of Fairfield, Connecticut.

<p>Appeal by the plaintiff, Francis Morris, 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 7th day of May, Í902, upon the dismissal of the complaint by direction of the court at the New York Trial Term after the impaneling of a jury, and also from an order entered in said clerk’s office on the 1st day of May, 1902, dismissing the complaint.</p>

<p>Appeal by the plaintiff, Hugo Straus, 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 1st day of December, 1902, permitting the defendants, upon an order of discontinuance entered on the 10th day of ¡November, 1902, to enter judgment dismissing the complaint herein, and also from a judgment entered in said clerk’s office on the 1st day of December, 1902, upon said order of discontinuance.</p>

<p>Guardian ad litem—he cannot enforce a money judgment until the security required, - ly Code of Oiml Procedure, section 474, and rule 51 has leen given.</p> <p>Where the plaintiff in an action brought by her guardian ad litem recovers a money judgment, neither the guardian ad litem nor her attorney can take a single step towards enforcing the collection of the judgment, either by issuing execution or otherwise, until the guardian ad litem has given the security required by section 474 of the Code of Civil Procedure and rule 51 of the General Rules of Practice.</p> <p>Patterson, dissented.</p>

<p>Appeal by the plaintiff, Elizabeth Bancroft Burch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of Hay, 1902, upon the report of a referee, and also from an order entered in said clerk’s office on the 29th day of Hay, 1902, denying the plaintiff’s motion to refer back this action to said referee to take further testimony.</p>

<p>Appeal by the defendant, Everett P. Wheeler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of September, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Esteila McGuire, by Francis X. Kelly, her guardian ad litem, and others, from a judgment of the Supreme Court in favor of the plaintiff and certain defendants, entered in the office of the clerk of the county of New York on the 17th day of July, 1902, construing the last will and testament of Mary McGuire, deceased.</p>

<p>Appeal by the defendant, the Hanover National Bank of the City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of December, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.</p>

Appeal by the petitioner, William W. Law, and others, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of October, 1902, dismissing the proceeding for the probate of the will of John S. Law, deceased. John S. Law died on the 25th day of August, 1893, at Oreenwich, in the State of Connecticut, leaving a last will and testament, which related to both real and personal property.

<p>Appeal by the United States Trust Company of New York, as trustee, etc., of Helena Rogers, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of December, 1902, settling the accounts of said trustee, as directs the payment of one-third of the trust estate to John Ferdon Rogers.</p> <p>Helena Rogers died on the 13th day of May, 1896, leaving a will which was duly admitted to probate in the Surrogate’s Court of New York county as a will of real and personal property. She left as her descendants her only child, Hoffman Rogers, and his three children, John FerdonRogers, the respondent herein, of full age, Helena Hoffman Rogers and Benjamin Woolsey Rogers, both minors, but now of full age. The United States Trust Company of New York duly qualified as executor and trustee under her said will, and has ever since remained in possession of the trust estate. That portion of her will which is brought into consideration by this appeal, after giving her residuary estate, which consists of both realty and personalty, to the said trust company in trust, directs it to be held as follows :</p> <p>“To apply a sum annually in equal quarter-yearly payments, sufficient in the judgment or discretion of my executor and trustee or his successor for the liberal support, care and maintenance of my son, Hoffman Rogers, during the term of his natural life. And to pay over to the guardian of the estates of the children of my said son, Hoffman Rogers, in equal quarter-yearly payments, such sums as in the judgment or discretion of my executor and trustee or his successor shall be proper for their support, education and maintenance during their respective minorities. And in case there should be a surplus of said net rents, issues, interest, income and profits, after applying and making such payments as aforesaid, I direct such surplus to be accumulated during the respective minorities of my grandchildren and paid over to them in equal shares or portions as they severally attain the age of twenty-one years. And in case of the death of any one of my grandchildren before attaining the age of twenty-one years, leaving lawful issue, I give, devise and bequeath the share of said accumulated income of the one so dying to his or her issue in equal portions. And in case of the death of any of my grandchildren before attaining the age of twenty-one years, without leaving lawful issue, I give the share of said accumulated income of the one so dying to the survivors or survivor of my grandchildren in equal shares. Eighth. Upon the death of my said son, Hoffman Rogers, I direct the income hereinbefore set apart for his benefit to be held and disposed of in all respects as I have hereinbefore provided for the holding and disposition of the rest, residue and remainder of the income set apart for the benefit of my grandchildren. Ninth. After the death of my said son, Hoffman Rogers, and as my grandchildren severally attain the age of twenty-one years, I hereby give, devise and bequeath to each of them the equal part or share of all the said rest, residue and remainder of my said estate, with the accumulations of income thereon, if any, to them, share and share alike, their heirs and assigns forever, or upon the death of my said son, in case any one of my grandchildren shall have died before attaining the age of twenty-one years, leaving lawful issue, I give, devise and bequeath the part or share of the one so dying of all the said rest, residue and remainder of my said estate, with the accumulations of income thereon, if any, to his or her issue in equal portions. Or upon the death of my said son, and in case of the death of any one of my grandchildren before attaining the age of twenty-one years, without leaving lawful issue, I give, devise and bequeath the part or share of the one so dying of all the said rest, residue and remainder of my said estate, with the accumulations of income thereon, if any, to the survivors or survivor of my grandchildren, in equal shares. And I hereby expressly authorize and empower my said trustee or his successor for such purpose to make division and partition of my said estate hereinbefore provided for, in such form or manner as to my said trustee or his successor shall seem equitable, just and proper, into so many parts or shares as my son shall leave children, or the representative of such children him surviving, per stirpes and not per capita.”</p> <p>On March 27, 1902, John Ferdon Rogers duly conveyed to his father, Hoffman Rogers, all his right, title and interest of, in and to the estate of Helena Rogers, deceased. Hoffman Rogers thereupon released to himself his interest in the income of the share of the estate so conveyed to him, and then conveyed back to the said John Ferdon Rogers one-third of the said estate. John Ferdon Rogers thereupon commenced proceedings in the Surrogate’s Court to compel the judicial settlement of the trustee’s accounts and the payment to him of the said one-third part of said estate. The trustee subsequently filed a voluntary account, and the two proceedings were consolidated. All persons interested in the estate were duly cited, and all consented in writing that a decree be entered directing the payment of the said one-third to John Ferdon Rogers.</p> <p>The surrogate referred the matter to Mr. Edward B. Whitney to take and state the account. For the purpose of meeting a question raised by the counsel for the trustee, an assignment was procured from Helena Hoffman Rogers and Benjamin W. Rogers to Hoffman Rogers of all their right, title and interest of, in and to any future income from the said estate, which assignments were received in evidence. The referee reported as a conclusion of law that the trust under the will was not terminated. Exceptions to the referee’s report were duly filed by the contestant, which duly came on to be heard before the surrogate, which exceptions were sustained by him, and a decree was thereupon entered settling the account and directing the payment of one-third of the principal fund to John Ferdon Rogers. From so much of the decree so entered as directs the payment of one-third of said estate to said John Ferdon Rogers, this appeal is taken.</p>

Appeal by the plaintiff, M. Groh’s Sons, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of November, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of October, 1901, denying the plaintiff’s motion for a new trial made upon the minutes:

<p> Negligence —proper scope of the cross-examination of a motorman as to the manner in which he ran the car. </p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, a boy between five and six years of age, who was run over by one of the defendant’s street cars on Lexington avenue between Ninety-sixth and Ninety-seventh streets in the city of New York, the plaintiff’s evidence tended to show that the intestate, when running after a ball, fell upon the defendant’s track some distance in front of one of the defendant’s cars; that the motorman of the car was not looking ahead, but was looking up at one of the windows on the side of the street and that, although he had abundant time in which to stop the car, which was going down grade at a very high rate of speed, he failed to do so.</p> <p>The evidence given on behalf of the defendant tended to show that the motorman was looking straight ahead; that the intestate was standing on the pavement and that when the ear was close to him he suddenly ran upon the track and fell down; that the motorman had the car under complete control, but that the child was so close to the car when he went upon the track that it could not be stopped. The motorman was sworn on behalf of the defendant and denied that he was not looking ahead at the time of the accident or that the car was running at a high rate of speed.</p> <p>Meld, that it was error to refuse to allow the plaintiff to cross-examine the motorman as to the speed at which he was accustomed to operate his car at particular points on the defendant’s line, including the place where the accident occurred; his obedience to orders; the operation of the car in front of a school house located a short distance from the place of the accident; his knowledge that people were accustomed to cross the avenue at places which were not regular crossings; his application of the brake; the statements which he had made concerning the accident and whether, upon a former trial, he had either denied, admitted or failed to deny that he was not looking ahead at the time of the accident, but was looking up at a window on the side of the street.</p>

Appeal by the defendants, Charles H. Mead 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 6th day of November, 1902, denying the said defendants’ motion to vacate and set aside a judgment theretofore entered against them in this action or to modify the said judgment by reducing the recovery to the sum of $150.

<p>Appeal by the defendant, William B. Gottlieb, 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 9th day of December, 1902, granting the plaintiff’s motion for a reference to hear and determine.</p>

Appeal by the defendant, Edward Hatch, from a judgment of . the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of March, 1902, upon the decision of the court rendered after a trial at the New York Trial Term before the court without a jury.

<p>Negligence — injury to a longshoreman, employed on a steamship, while upon a lighter coming alongside the steamship, by falling through a defective grating—neither the steamship company nor the owner of the lighter held to be liable.</p> <p>In an action brought against a steamship company and the owner of a lighter to recover damages resulting from the death of the plaintiff’s intestate, who was a longshoreman in the employ of the steamship company, it appeared that on the day of the accident, while the crew of the lighter, which had no propelling power, were engaged in bringing it alongside the steamship, for the purpose of transferring its cargo to th steamship, the decedent’s foreman directed him and a number of other longshoremen to assist the crew of the lighter; that while the decedent was walking along the deck of the lighter he stepped upon a grating covering a manhole in the deck; that the grating tilted up edgewise causing the decedent to land astride its upturned edge and to sustain injuries resulting in his death.</p> <p>The grating, which was set into the frame of the opening and was not fastened thereto in any way, did not fit tightly, there being a play of about one-eighth of an inch all around the grating between it and the frame. There was no evidence that the manhole and its appurtenances were faulty in construction or were different from those used for a like purpose on similar boats or that at the time of the accident any part of such appurtenances was broken or out of repair or that anything had occurred previous to the accident which would indicate that such an accident could possibly happen. The crew of the lighter did not ask for assistance in bringing the lighter alongside the steamship and they could have done so without receiving any assistance.</p> <p>Held, that the complaint was properly dismissed as to both the defendants;</p> <p>That the steamship company was not bound to inspect the deck of the lighter before allowing the decedent and his fellow-employees to go upon it, and that so far as the steamship company was concerned, the decedent assumed the risk of the danger which he encountered;</p> <p>That the decedent was upon the lighter, at most, by the implied sufferance or license and not by the invitation, either express or implied, of the owner thereof, who was consequently under no obligation to protect the decedent from injury;</p> <p>That, even if the owner of the lighter did owe to the decedent a duty to provide him with a reasonably safe place in which to do his work, the owner could not be held liable unless the plaintiff proved that the manhole and its appurtenances were improperly constructed in the first instance or else had become defective and out of repair and that the owner of the lighter had notice of such defects or by the exercise of reasonable care could have discovered them.</p> <p>Laughlin and O’Brien, JJ., dissented from the dismissal of the complaint as to the owner of the lighter.</p>

<p>Merchants’ exchange — amendment to the by-laws—pm'ticipants in an insurance scheme allowed to become non-participants therein,</p> <p>A corporation, organized primarily to provide an exchange for merchants engaged in a certain business, and, incidentally, to provide for the widows and families of deceased members, and which has two classes of members, known as participating and non-participating members, the former class, who pay an assessment of three dollars upon the death of each member of that class, being alone interested in the objects of the corporation, so far as relates to making provision for the widows and families of deceased members, will not be restrained, at the suit of a participating member, from adopting a by-law making it optional with its present or future participating members to transfer their membership to the non-participating class, when it appears that the amendment was adopted because the continued existence of the corporation was threatened by the resignation of a large number of participating members who had become dissatisfied with the assessment features of the corporation, and that all members of the corporation had expressly stipulated in their application for membership that their rights should be subject to future amendments of the by-laws.</p>

<p>Negligence — injury from, the derailment of an electric street car — doctrine of res. ipsa loquitur—burden of proof.</p> <p>In an action brought by a passenger upon an electric street car against the street, railway company to recover damages for personal injuries sustained by her in consequence of the derailment of the car, in which evidence is given tending to show that at the time of the accident the car was proceeding at a very rapid, rate of speed, and that, either on account of its excessive speed or the condi-</p> <p>tion of the track, it had a slight swinging motion, and also that there was a sag of a quarter of an inch in the track at or near the place of the accident, the doctrine of res ipsa loquitur applies, notwithstanding the fact that evidence is offered hy the street railway company tending to show that a small piece of iron was found on the flange of the rail which it claimed accounted for the accident.</p> <p>Semble, that that doctrine is applicable to all derailments of steam railroad cars and of cars operated by mechanical and electrical devices.</p> <p>Where the doctrine of res ipsa loquitur applies, the happening of the accident and the attending circumstances raise a presumption of negligence sufficient, in the absence of any explanation on the part of the defendant, to warrant a finding of negligence.</p> <p>It is then incumbent upon the defendant, in order to escape liability, to offer evidence tending to rebut this presumption of negligence, but the burden of proof is not shifted upon the defendant, but remains upon the plaintiff throughout the trial.</p>

Appeal by the defendant, William P. Baird, 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 5th day of January, 1903, denying the defendant’s motion for the dismissal of the action on the ground of plaintiff’s unreasonable neglect to prosecute the same.

Appeal by the defendant, The Metropolitan Hospital and Dispensary of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of June, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, directing the foreclosure of a mortgage and the sale of certain real property owned by the defendant, with notice of an intention to bring up for review upon…

Appeal by the defendant, John M. Cornell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of April, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the New York Filter Manufacturing 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 26th day of January, 1903, vacating an order for the examination of the plaintiffs before trial.

Appeal by the petitioner, James E. Jones, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of November, 1902, denying a motion for a peremptory writ of mandamus requiring the respondent to reinstate the petitioner as superintendent of small parks or to be transferred to the position of assistant superintendent of parks or to any branch of the municipal civil service for duty…

<p>Cross-appeals by the plaintiffs, Horace Russell and Edward D. Harris, as executors of and trustees under the last will and testament of Henry Hilton, deceased, and by the defendants, Helen Hilton and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 27th day of Hay, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, giving construction to various portions of the last will and testament of Henry Hilton, deceased.</p> <p>Also an appeal by the defendant Albert B. Hilton from the whole of said judgment.</p> <p>The will is as follows:</p> <p>“ In the Name oe God, Amen :</p> <p>“ I, Henry Hilton, of the City of New York, being of sound and disposing mind and memory,</p> <p>“ Do make, publish and declare this my Last Will and Testament as follows, viz.:</p> <p>“ All my property and estate of every kind and description, and wheresoever situate, I hereby give, devise and bequeath to my Executors hereinafter named,</p> <p>“In trust, to take the custody and possession thereof and sell and dispose of the same at such times and in such manner as they shall deem fit or proper, and convert the same into money, and pay over and distribute the same as follows, viz.:</p> <p>“First. To pay to my daughter, Cornelia H. Hughes, the sum of Fifty thousand dollars.</p> <p>" “Second. To pay to my daughter, Josephine H. Russell, the sum of Fifty thousand dollars.</p> <p>“ Third. To pay to my son, Edward B. Hilton, the sum of Fifty thousand dollars.</p> <p>“Fourth. To pay to my son, Albert B. Hilton, the sum of Fifty thousand dollars.</p> <p>“ Fifth. To pay to each of my grandchildren living at my death, the sum of Ten thousand dollars.</p> <p>“Sixth. To pay to my brother, James Hilton, of Iowa, the sum of Five thousand dollars.</p> <p>“ Seventh. To pay to my sister, Mary Ann Brown, the sum of Five thousand dollars.</p> <p>“Eighth. To pay to my sister, Eliza Hilton, the sum of Ten thousand dollars.</p> <p>“Ninth. My Executors are hereby authorized in their discretion to set apart out of my estate, the sum of Twenty-five thousand dollars, out of which they may from time to time, as they may see fit, pay to or for the use of my son Henry C. Hilton, and his wife Agnes S., or to or for the use of either of them, such sums and amounts as my Executors shall see fit, or shall consider proper or expedient.</p> <p>“ All the rest, residue and remainder of my property and estate shall be divided into Twelve equal parts, which shall be paid over and distributed as follows, viz.:</p> <p>“I. To my daughter, Cornelia H. Hughes, Two equal twelfth parts thereof.</p> <p>“ II. To my son, Edward B. Hilton, Two equal twelfth parts thereof.</p> <p>“ III. To my daughter, Josephine 3. Russell, Four equal twelfth parts thereof.</p> <p>“ IV. To my son, Albert B. Hilton, Four equal twelfth parts thereof.</p> <p>“ All the shares, legacies' and bequests shall be paid personally to the party entitled thereto, except as herein otherwise provided.</p> <p>“ Those to my grandchildren shall be paid personally and jointly with the mother where the child is over sixteen and under twenty-one years of age.</p> <p>“ To those under sixteen, to the general guardian.</p> <p>“ To those over twenty-one, personally.</p> <p>“ The share and interest herein of my daughter, Cornelia H. Hughes, shall be incapable of being sold, assigned or transferred. On her death, leaving her son Henry H. Hughes surviving, her share and interest then remaining therein shall be paid over and belong to said Henry H. Hughes. But if she shall survive her said son then on her death any part of her share then remaining shall be paid over to and shall belong to the children then living of my daughter Josephine and the children of my son Albert then living, in equal shares and proportions.</p> <p>“ The share and interest herein of my son Albert B.* shall also be incapable of being sold, assigned or transferred; and upon his death leaving his wife Dorothy and their children or either of them surviving, the part then remaining unpaid of his share shall belong to and shall be paid over to his said wife and their children, or such of them as shall then be living, in equal shares and proportions.</p> <p>“ Further, my Executors are authorized and empowered, in their discretion, during the life of the said Edward B. to pay over not exceeding two-thirds of his share to his said wife Dorothy.</p> <p>“ The share and interest herein of my son Albert B. Hilton shall also be incapable of being sold, assigned or transferred, or in any manner controlled by him ; and as to which I fully authorize and empower my Executors to retain and withhold the same.</p> <p>“ In trust, to pay out or pay over or apply so much and such parts thereof as they may from time to time consider necessary, proper or expedient for the support and maintenance of the said Albert and his wife and children during his life; and on his death to pay over and distribute such part of his share as shall be then remaining in the hands of my Executors to his wife, Hattie K., and their children, or to such of them as shall be then living, in equal shares and proportions, share and share alike.</p> <p>“ Prior to the sale and disposition of my estate my Executors are authorized and empowered to lease or let the same, or any part</p> <p>thereof, for such terms as they shall see fit; and upon making sales they are authorized and empowered to make, execute and deliver, with or without seal, proper deeds, conveyances, assignments and transfers thereof which shall be as effectual for every purpose as if made by me while living.</p> <p>“ If any of my heirs or any of the devisees or legatees herein named shall oppose the probate of this my Will, or contest the same in any manner, I revoke all provisions herein in favor of such opponent or contestant, and any share given him herein shall be divided into equal shares and belong to and be paid over to the children of my daughter Josephine, and the children of my son Albert equally, share and share alike.</p> <p>“ The share of neither of my children shall be affected or lessened by reason of any transfer of property, or loans or advances of money, or payments for or on account of either, which may have been or may be made by me. All such things I regard as absolute gifts, and intend and direct that they shall be so considered.</p> <p>“ Neither of the shares or legacies herein shall be entitled to any preference in payment.</p> <p>“ My Executors shall not be required to make or file any inventory of the furniture or contents of the various dwelling houses owned by me, or of the furniture or contents of my hotels, or of the machinery, &e., contained in the various mills and tenements owned by me; but, in lieu thereof, they shall make a verified statement of the various buildings, stating generally the contents of each, and the estimated value thereof.</p> <p>“ They may continue to keep open and operate my hotels and their appendages so long as they may consider it to be expedient; and a quarter-yearly statement of the result of such operating, signed by them, shall be the only voucher required of them in respect thereto. All such furniture, machinery and goods and chattels may be sold and disposed of by my said Executors at such times and in such manner, and at such prices as they shall consider appropriate and proper.</p> <p>“ My Executors and Trustees are authorized to employ such assistants, clerks, agents, &c., in the care and management of my estate as they may consider necessary or proper, and the expense thereof, salaries, &c., shall be charged against my estate.</p> <p>“ Revoking and annulling all other Wills by me at any time heretofore made, I do declare this instrument to be my last Will and Testament, and I do appoint as Executors and Trustees thereof my son-in-law, Horace Russell, of the City of New York, and my friend, Edward D. Harris, of Yonkers, N. Y.</p> <p>“ (The fees and commissions of said Harris shall not exceed in any one year Five thousand dollars.)</p> <p>“ In witness whereof \ I, the said Henry Hilton, have hereunto set my hand and seal this thirteenth day of April in the year 1897.</p> <p>“ HENRY HILTON, [l. s.]</p> <p>“ Signed, sealed, published and declared by the Testator, Henry Hilton, in our presence to be his last Will and Testament; and we, in his presence and in the presence of each other, and at his request, have subscribed our names as witnesses to such execution. On 5th page, the words ‘ to time’ and on 6th page, the words ‘ or any part thereof,’ interlined before execution.</p> <p>“HENRY H. RICE,</p> <p>“ 54 West 37th St., N. Y. City. “ROBERT G-. SMYTH,</p> <p>“ Saratoga Springs, N. Y. “HERBERT ANSTEY,</p> <p>“ 218 West 139th St., N. Y. City.”</p>

Appeal by the defendant,Washington Hull, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs and the defendant, Kenneth M. Murchison, Jr., entered in the office of the clerk of the county of New York on the 8th day of April, 1902, upon the decision of the court rendered after a trial at the Hew York Special Term, and also from a final judgment of the Supreme Court, entered in said clerk’s office on the 13th day of May, 1902, pursuant to a…

Appeal by the relator, Lawrence Murphy, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of December, 1902, dismissing the writs of certiorari and habeas corpus theretofore allowed in behalf of the said relator, and remanding him to the custody of the warden of the city prison.

<p>Parrtition suit—a defendant cannot set up as a defeme thereto that the plaintiff’s 'ancestor has had irun'e personal property than he was entitled to from the common estate — a claim for such personalty must be enforced by or against the personal representatives — a surrogates decree held to be conclusive.</p> <p>One Simeon D. Skillin died, leaving a will by which he devised to his son, Edward S. Skillin, one-fourth of his estate, both real and personal. Edward S. Skillin died intestate, while seized of such undivided one-fourth of the real estate devised to him, and his heirs at law brought an action to partition such real estate. In such action one of the sons of Simeon D. Skillin, individually and as administrator of his sister, a daughter of Simeon D. Skillin, defended the action, alleging that Edward S. Skillin had received a greater percentage of the personal estate of Simeon D. Skillin than he was entitled to under the will and asked for an accounting in respect to the alleged over-payment and for the payment thereof out of the proceeds of the real estate.</p> <p>Neither the personal representatives of Simeon D. Skillin nor those of Edward S. Skillin were parties to the action.</p> <p>Meld, that if there had been an over-payment the right to recover such overpayment would vest in the personal representatives of Simeon D. Skillin and be enforcible against the personal representatives of Edward S. Skillin, and not against the latter’s heirs at law;</p> <p>That, as the personal representatives of Simeon D. Skillin and Edward S. Skillin had not been made parties to the partition action, the controversy between the two estates as to the over-payment could not be determined therein;</p> <p>That a decree rendered on an accounting by Edward S. Skillin, as administrator with the will annexed of Simeon D. Skillin, to which the answering defendant and his sister were parties, adjudging that Edward S. Skillin had fully accounted for all the moneys and property of the estate of Simeon D. Skillin in his hands, constituted an adjudication binding upon such answering defendant that there had been no over-payment to Edward S. Skillin.</p> <p>Motion by the defendant, Henry T. Skillin, individually and as cestui que trust and as administrator, etc., of Julia L. Skillin, deceased, for a new trial made upon a case containing exceptions, pursuant to section 1001 of the Code of Civil Procedure, after an interlocutory judgment entered upon the report of a referee dismissing the appellant’s claim.</p>

Appeal by the petitioner, John B. McDonald, 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 23d day of October, 1902, denying the petitioner’s motion for a peremptory writ of mandamus.

<p> Negligence—measure of care required of a hoy upwards of twelve years of age. </p> <p>In an action brought to recover damages resulting from the death of a boy upwards of twelve years of age who was run over by one of the defendant’s street cars, it is proper for the court to charge, “It was the duty of this boy to exercise such care and prudence to avoid an accident as a boy of his age and good intelligence would exercise under the circumstances and deem adequate thereto.”</p> <p>Such a charge does not substitute a mental process on the part of the deceased as to what he deemed adequate, for the reasonable care and circumspection of a prudent person which is what the law required of him.</p> <p>It is, however, error for the court to charge as follows: “ Let me say to you that, in holding that the boy was sui juris, the court reaches the conclusion that he had reached a time in life when, as appears from the evidence, being an intelligent boy, he was capable of forming some judgment and of making a reasonable effort to avoid danger. The degree of care imposed upon a lad is not as high as the degree of care imposed upon an adult,” as the boy being upwards of twelve years of age, it was the duty of the court to charge that he was obliged to use the same degree of care required of an adult unless the plaintiff established that he did not have sufficient mental capacity to exercise that degree of care.</p> <p>Van Brunt, P. J., and Ingraham, J., dissented as to the first proposition.</p>

<p>Will—a gift of “the interest of twenty thousand dollars,” held not to entitle thebenefieiaA'y to legal interest thereon — effect of a receipt for “ interest money in full to date."</p> <p>Where a will uses the words “income” and “interest” indifferently and as synonymous terms, a clause in the will by which the testator bequeaths “ the interest of twenty thousand dollars ” to his son during his natural life, does not entitle such son to receive legal interest on the sum of $20,000 during his lifetime, but only the income of the securities in which the trust fund has been invested, particularly where the latter construction was the one adopted by the testator’s son and the executors in their dealings with each other.</p> <p>On an accounting wherein the administratrix of the son’s wife, who was the sole beneficiary under her husband’s will, endeavored to surcharge the accounts of the executors because of their alleged failure from 1877 to 1886 to collect interest on part of the mortgages in which the $20,000 fund was invested, an unassailed receipt signed by the son, dated July 11th, 1888, for §150 “interest money in full to date,” is conclusive against the administratrix’s contention.</p>

Appeal by the defendant, Solomon Jacobs, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 27th day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Archibald A. Hutchinson, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of October, 1902, directing that the place of trial be changed from the county of Kings to the county of New York.</p>

Appeal by the plaintiff, Frederick W. Heinrich, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, entered on the 5th day of August, 1902, upon the dismissal of the complaint at the close of the plaintiff’s evidence.

Appeal by the defendant, The City of New York, from a judgment of the Municipal Court of the city of New York, borough of the Bronx, in favor of the plaintiff, entered on the 23d day of September, 1902.

Appeal by the defendant, The City of New York, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 15th day of May, 1902, upon the decision of the court.

Cross-appeals by the plaintiff, Susan Gorden, and by the defendants, Joseph Gorden and Stephen M. Hoye, as executors and trustees, etc., of William Gorden, deceased, from various portions of a final judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 7th day of March, 1902, upon the report of a referee directing the distribution of the proceeds of sale of real property in an action for dower, with notice of an intention to bring up…

Appeal by the defendant, The Palatine Insurance Company, Limited, of London, England, from a judgment of the Supreme Court in favor of the plaintiffs and the defendant, John M. Diven, entered in the office of the clerk of the county of Suffolk on the 11th day of March, 1902, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of March, 1902, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 2d day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Alexander R. Hart, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 17th day of October, 1900, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

<p>Negligence — injury while riding a wooden horse on a gravity steeplechase — when the doctrine of res ipsa loquitur is not applicable.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff, it appeared that the defendant maintained and operated a structure known as a steeplechase. This structure was a railroad consisting of six parallel tracks, upon which rude images of horses or ponies mounted on wheels were operated by force of gravity. Persons wishing to ride upon the horses or ponies were permitted to do so upon the payment of a prescribed fee.</p> <p>The plaintiff testified that on the evening of the accident he mounted one of the horses behind a friend of his, and that when the horse reached a point thirty or forty feet from the starting place he experienced a sudden jar which threw him violently forward and to one side and then off the horse, and that, as the horse proceeded, his leg was caught underneath it and mangled.</p> <p>The defendant’s witnesses testified that the structure, track and horses were all in good condition and perfectly safe if carefully used, and that the accident was due to the negligent conduct of the plaintiff, while “ skylarking ” with a young lady seated on another horse, in reaching over toward that horse and trying to catch hold of It. This theory was not without support in the evidence, it appearing that plaintiff said after the accident, “ This is what I got for fooling.”</p> <p>The court charged as follows: “ You are at liberty, in such an action, bearing in mind all the attendant circumstances and the rule I have stated, that the burden of proof is always upon the plaintiff, to infer from the accident homing occurred that the defendant was negligent. So in this case, if you find that this accident would not ordinarily have occurred if the horse and track and appliances had been in a reasonably safe condition and if the defendant or its employees had exercised ordinary care in their operation, you may infer negligence of the defendant from that fact.”</p> <p>Held, that, in view of the proof tending to show that the plaintiff’s negligence caused the accident, the charge that the jury were at liberty “to infer from the accident having occurred that the defendant was negligent ” was misleading and required the reversal of a judgment in favor of the plaintiff.</p>

<p>Insurance broker — liability of, where he procures a policy from a company not authorized, to do business in the State of New York nor enforcible therein and the company refuses to pay a loss thereunder.</p> <p>A contract made in the State of New York, by which an insurance broker doing business therein undertakes to procure a good policy of insurance in a very good company upon a house situated in the State of Pennsylvania, creates an obligation on the part of the insurance broker to procure a policy of insurance enforcible in the State of New York and in Pennsylvania from a company able and willing to pay in the event of a loss.</p> <p>Evidence that the insurance broker procured from an Illinois company a policy of insurance which was not enforcible either in New York or Pennsylvania, and that the insurance company, which had no authority to do business in either of those States, refused to pay the amount of a loss after receiving due proof thereof establishes a breach of the contract, even though the proof that the insurance company was insolvent is meagre.</p> <p>Goodrich, P. J., dissented.</p>

<p>Appeal by the Universal Trust Company, the defendant in each of the above-entitled actions, from a judgment of the Supreme Court in favor of the plaintiff in each action, entered in the office of the clerk of the county of Kings on the 18th day of January, 1902, upon the verdict of a j ury, in the first action for $1,500, and in the second action for $200, and also an appeal by the defendant in each of the above-entitled actions, from an order entered in said clerk’s office on the 19th day of February, 1902, denying the defendant’s motion in each action for a new trial made upon the minutes.</p>

Appeal by the defendants, The City of Yonkers, Nelson Morris, Edward Morris and Ira N. Morris, composing the firm of Nelson Morris and Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of March, 1902, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 14th day of March, 1902, denying the defendants’ motion for a new trial made…

<p>Inspector of the work to be done under a written contract few the repair of a town bridge — he may be appointed by the highway commissioners — the rejection of a claim for his services presented by the highway commissioners is not a bar to pro~ ceedings by the inspector — what the town board may consider in making am audit.</p> <p>Section 10 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1895, chap. 606, and Laws of 1899, chap. 84), which authorizes the highway-commissioners of a town, with the consent of the town board, to cause damaged or unsafe bridges to be repaired, and provides that if the expense exceeds §500 the work must be done under a written contract, approved by the town board, does not prohibit highway commissioners from employing, without the previous consent of the town board, an inspector to superintend the work of repairing a bridge, although such work is being done under a written contract involving an expenditure of over §500.</p> <p>The presentation of the inspector’s claim by the highway commissioners to the town board, at their annual meeting, pursuant to the final clause of section 10 of the Highway Law, and the rejection of such claim by the town board, is not a bar to the inspector’s right to institute proceedings in his personal capacity to have his claim audited and paid.</p> <p>In auditing a claim the members of the town board are not restricted to the claimant’s proof in regard to its validity, hut may act upon their own knowledge, acquired from their own actual observation of the facts and circumstances concerning the claim.</p>

<p> Revocation of an executors appointment—his temporary residence in another State does not show that he “ has removed” from the State of New Yoi'lc. </p> <p>The temporary residence in New Jersey, on account of the ill-health of some of the members of his family, of an executor appointed by a Surrogate’s Court of the State of New York, does not establish that such executor “has removed” from the State, within the meaning of section 2687 of the Code of Civil Procedure, making it imperative upon the surrogate to revoke his appointment in such a case.</p>

<p>Appeal by the City of New York from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 4th day of October, 1902, taxing the fees of the respondents, commissioners of appraisal in the above-entitled proceeding.</p>

<p>Damages jor breach of warranty on the sale of goods—it does not include the expense of their examination — objection to jurisdiction first raised on appeal.</p> <p>A vendee of goods, who on examining them discovers that they do not conform to the warranty under which they were sold, is not entitled, in an action to recover damages for the breach of the warranty, to charge the vendor with the time, trouble and expense involved in making the examination.</p> <p>•Qumre, whether the objection that the Municipal Court of the city of New York did not have jurisdiction of a counterclaim for an amount in excess of §500, can he successfully urged for the first time upon an appeal from a judgment •sustaining the counterclaim.</p>

Cross-appeals by the plaintiff, Henry F. Xavier, and by the judgment of the Supreme Court, entered in the office of the clerk of the county of Westchester on the 1st day of April, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling a demurrer to the separate and partial defense, and sustaining a demurrer to the separate and second defense contained in the defendants’ answer.

Appeal by the defendant, Zachariah IL Berlin, the name “Zachariah” being fictitious, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 29th day of' September, 1902, denying the defendant’s motion for the cancellation and vacation of a judgment.

Appeal by the defendant, Richard Stainton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of February, 1902, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office on the 13th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Cordelia A. Robson, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county' of Kings on the 14th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

Appeal by the plaintiff, Ann O’Connor, as committee of the person and estate of Grace McLaughlin, an incompetent person, from an order described in the notice of appeal as follows: “ an order of the Special Term of this court, granted on the 16th day of July, 1902, and entered in the office of the clerk of the county of Kings on the 16th day of July, 1902.” The order appointed a referee to take the deposition of a person not a party to the action.

Appeal by the defendant, The City of Yonkers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 15th day of May, 1902, upon the decision of the court rendered after a trial at the Westchester Special Term.

Appeal by the petitioner, Charles Schlivinski, by Hyman Schlivinski, his guardian ad litem, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 29th day of October, 1902, denying an application for a peremptory writ of mandamus.

Appeal by the defendant, the New York and Queens County 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 Kings on the 19th day of May, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the '20th day of December, 1901, directed to John J. Scannell, as commissioner of the fire department of the city of New York, requiring him to certify and return to the office of the clerk of the county of Kings all and singular the proceedings had in dismissing the relator from the fire department of the city of New York.

<p>Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 6th day of November, 1902, upon the verdict of a jury for $277.82.</p>

Appeal by the petitioners, Franklin J. Bischoff and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of November, 1902, denying their motion to vacate and set aside proceedings de lunático inquirendo.

<p>Notice of a tenant’s intention to leave demised premises befoi'e the end of his lease— what constitutes an acceptance thereof.</p> <p>The wife of a man who had a written lease of premises for one year from September 1, 1901, informed the lessor’s agent on April 5, 1902, that the lessee intended to remove from the premises. Thereupon the agent went to the lessee and entered into a heated conversation which terminated in the agent’s telling the lessee, “ Well, move, I am glad of it.” Some days thereafter a “to let” sign was placed upon the premises by direction of the lessor’s agent without the consent of the lessee. The lessee then removed to another place and sent the key to the office of the lessor’s agent by the direction of the latter.</p> <p>A clause in the lease provided that if the premises should become vacant during the term the landlord might rent the same as the agent of the tenant, but the evidence was conflicting as to whether the lessor’s agent notified the lessee that it was his intention to act under this provision of the lease. The lease contained a further provision that “on any day within ninety days preceding the expiration of the term ” the lessee would “ permit the usual notice of to let or for sale to be placed on the premises.”</p> <p>Held, that the action of the lessor’s agent in telling the lessee to move and in posting the to let notice upon the premises constituted an acceptance of the lessee’s surrender of the premises.</p> <p>Hirschbero, J., dissented.</p>

Appeal by the plaintiff, Catharine A. Griggs, from so much of a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 19th day of July, 1902, upon the decision of the court rendered after a trial at the Orange Trial Term directing a nonsuit, as adjudges that defendant is in the possession of certain real property, and as grants costs to the defendant, and also from an order dated the 10th day of June, 1902,…

<p> Statutory rigid of action, unknown to the common law—the statutory limitations operate upon the liability and not on the remedy only—a limitation of time in which such am, action may be brought need not be pleaded. </p> <p>Where a statute gives a right unknown, to the common law and limits the time within which an action shall be brought to assert such right, the statutory limitation measures the extent and qualifies the nature of the right conferred, and will be respected and enforced by the courts of any State wherein the plaintiff may sue; such, limitation operates as a limitation of the liability created, and not of the remedy alone.</p> <p>Where the complaint in an action brought in the State of New York, under a statute of the State of New Jersey, to recover damages for the negligent killing of the plaintiff’s intestate, discloses the fact that-the action was not brought within the time prescribed by the New Jersey statute, and the answer does not set up the Statute of Limitations as a defense, the court will not reverse an order, made after the case has been brought to trial and the jury have disagreed, permitting the defendant to amend its answer by setting up the Statute of Limitations.</p> <p>Semble, that the order allowing the amendment was unnecessary, as the objection that the complaint did not state facts sufficient to constitute a cause of action might be raised by the defendant at any time.</p>

<p> Fraudulent conveyance—proof that a conveyance was without consideration is not enough—fraudulent intent presents a question of fact—proof that the conveyance was for money previously advanced hy the grantee. </p> <p>A judgment creditor who assails a conveyance made by the judgment debtor cannot impose upon the grantee the onus of showing good faith and of establishing that the judgment debtor was solvent after making the conveyance by simply showing that the conveyance was not founded upon a valuable consideration.</p> <p>Fraudulent intent in such a case is a question of fact, not of law.</p> <p>In such a case it is error to refuse to admit in evidence testimony offered by the judgment debtor and the grantee tending to show that the grantee had advanced money to the judgment debtor for the purchase of property, and that the conveyance was, in fact, supported by a valid consideration.</p>

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

Appeal by the defendant, the Prudential Insurance Company of America, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered on the 13th day of June, 1902, after a trial before the court without a jury.

Appeal by the defendant, The Greenwood Cemetery Company, from a judgment of the Municipal Court of the city of New York, in favor of the plaintiff, entered on the 6th day of November, 1902, after a trial without a jury.

Appeal by the defendant, Max Stein, from a judgment of the Court of Special Sessions of the Peace of the city of New York in favor of the plaintiff, entered .on the 9th day of July, 1902, convicting the defendant of the crime of petit larceny.

Appeal by the defendants, Samuel W. Ehrich and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 2d day of June, 1902, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 16th day of June, 1902, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by Annie Monahan, one of the legatees under the last will and testament of Daniel McCollum, deceased, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 14th day of June, 1902, as overrules the objections and exceptions made by the said Annie Monahan to the account of Elizabeth McCollum and William T. Rodgers, as executors, etc., of Daniel McCollum, deceased, and to the report of the referee appointed in…

Appeal by the plaintiff, William IT. James, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day of May, 1902, upon the verdict of a jury, as amended by an order made in said action on the 6tli day of May, 1902, and entered in said clerk’s office, and also from an order entered in said clerk’s office on the 1st day of May, 1902, denying the plaintiff’s motion for a new trial made upon the…

<p>Discharge of a servant — it may be sustained upon any sufficient ground therefor, although at the time unknown to the master.</p> <p>In an action by a servant against his master to recover damages for his alleged wrongful discharge, the master may justify the discharge upon any ground which actually existed at the time of the discharge, although it was then unknown to the master.</p>

Appeal by the plaintiff, Christina Johnson, from an order of the Municipal Court vacating and setting aside a judgment entered on the 11th day of October, 1901.

Appeal by Hendrikus Vander Heyden, a legatee under the codicil to the last will and testament of Oonstantia A. P. Scott, from an order of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 9th day of December, 1902, so far as such order requires the said legatee to give security for costs and a written undertaking of indemnity against the expense of temporary administration as a condition for the issuance of a commission to examine witnesses in…

Appeal by the plaintiff, George A. Tooker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of December, 1901, upon the verdict of a jury for six cents, and also from an order entered in said clerk’s office on the 9th day of December, 1901, denying the plaintiff’s motion to set aside the verdict and for a new trial made upon the minutes.

Appeal by the plaintiff, John M. Perry, as trustee of Samuel A. Skead, a bankrupt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 29th day of May, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Amelia Komitsch, from a judgment of the County Court of Kings county in favor of the defendants, entered in the office of the clerk of the county of Kings on the 24th day of June, 1902, upon the dismissal of the complaint by direction of the court, and also from an order entered in said clerk’s office on the 18th day of June, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by Robert H. Gould, trustee in bankruptcy of H. Willard Raymond, bankrupt, from so much of an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 11th day of November, 1902, as provides that the said trustee j>ay to the sheriff of Orange county his fees on an attachment made herein, and also from an order entered in said clerk’s office on the 18th day of November, 1902, as amended by an order entered in said clerk’s office on the 1st day of December, 1902, vacating said attachment.</p>

<p>Appeal by the plaintiff, James H. Talmage, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 7th day of June', 1901, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.</p>

<p>Reservation of a motion for a nonsuit — after a verdict the complaint cannot he dismissed on the merits — negligence—injury to a workman in a paper factory from Ms clothing being caught through an opening in a bom covering a revol/ving shaft.</p> <p>Where the judge presiding at a jury trial, acting under the authority of section 1187 of the Code of Civil Procedure, reserves the decision of a motion for a non-suit until he has submitted the whole case to the jury and they have rendered a general verdict for the plaintiff, he cannot, upon receiving the jury’s verdict, dismiss the complaint upon the merits.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that there were in the defendant’s paper factory two rooms known as the wash and kettle rooms, the former being directly west of the latter room; that the door connecting the two rooms was ten feet wide and that in the kettle room, flush with the southerly jamb of the door, was a wooden box twenty-two inches square, built from the floor to the ceiling, which box encased a steel shaft revolving at a speed of over two hundred revolutions per minute. The shaft was located about six inches back of the northerly face of the casing and for a period of five or six months there had been a hole in the northerly face of the casing five or six inches wide extending upward from the floor for a distance of six or eight feet.</p> <p>The intestate was employed in the wash room, and on the day of the accident he and a number of fellow-workmen were engaged in moving a car heavily laden with material from the kettle room into the wash room. While pushing the car through the doorway, one of the wheels caught in the floor. The intestate, who wore a loose apron of bagging extending to his knees, was stationed at the southeast corner of the car within about two feet of the hole in the casing, and, while he and his companions were endeavoring to start the car forward, the intestate's apron was caught, through the hole in the casing, by the revolving shaft and he was drawn against it with such violence as to kill him. Held, that the jury were justified in finding that the defendant was guilty of negligence and that the intestate was free from contributory negligence.</p>

Appeal by the Comptroller of the State of New York from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 15th day of November, 1902, vacating a decree of said court, entered on the 13th day of September, 1901, assessing and fixing the transfer tax on a portion of the estate of William Scrimgeour, deceased.

Appeal by the defendant, Edward M. Knox, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 13th day of June, 1902, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by George E. Greene, committee of the property of Sarah Frederica P. Burrall, from an order of the Supreme Court, made at the Kings County Special Term, bearing date the 25th day of November, 1902, and entered in the office of the clerk of the county of Nassau, denying the motion of the said committee for leave to appear in said action for the purpose of having said action stayed, and all proceedings theretofore had therein vacated.</p>

<p>Negligence — injury from the slipping of a pedestrian on the sidewalk on green groceries in front of a vegetable stand.</p> <p>While the primary purpose of streets is their use by the public for travel and transportation, such use is subject to the right of those doing business along the streets to obstruct the sidewalk temporarily for the purposes of business. The test is whether the exercise of the right in a particular case was necessary, reasonable and temporary, and this question is ordinarily one of fact to be solved with reference to time, place and circumstances.</p> <p>A person who slips and falls upon green groceries which have been scattered upon the sidewalk of a city street in the process of supplying customers from a vegetable stand, lawfully constructed in front of a store, cannot recover damages from the proprietor of the stand and store where it does not appear that the green groceries had been on the sidewalk for any appreciable time previous to the accident or that the proprietor had not used reasonable diligence to keep the sidewalk clean or that the injured person was free from contributory negligence.</p>

Appeals by Thomas Williams and James Barton, the plaintiffs in the above-entitled actions, from judgments of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of June, 1902, upon the decision of the court rendered, after a trial before the court without a jury at the Kings County Trial Term, dismissing the complaints upon the merits.

<p>Appeal by the defendant, Thomas Finucan, from a judgment of the County Court of Nassau county, rendered on the 21st day of May, 1902, and entered in the office of the clerk of the county of Nassau, upon the verdict of a jury convicting the defendant of the crime of aiding and abetting a prize fight, and also from an order entered in said clerk’s office on the 26th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes, and in arrest of judgment.</p>

<p>Appeal by the defendants, Oyrus Y. "Washburn and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of May, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

Appeal by the defendant, Madge Cone, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 20th day of October, 1902, upon the decision of the court.

n Appeal by the defendant, J. Luther Pierson, from a judgment of the County Court of Westchester county, rendered on the 22d day of May, 1901, and entered in the office of the clerk of the county of Westchester, upon the verdict of a jury, convicting the defendant of a misdemeanor under subdivision 1 of section 288 of the Penal Code, in willfully omitting, without lawful excuse, to perform a duty imposed upon him by law, to furnish medical assistance to a minor.

Appeal by the defendant, The City of Middletown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the-office of the clerk of the county of Orange on the 9th day of June, 1902, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 9th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The City of New York and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of April, 1902, upon the verdict of a jury for $3,750, and also from the orders entered in said clerk’s office on the 25th day of April, 1902, and on the 2d day of May, 1902, denying the defendants’ respective motions for a new trial made upon the minutes.

Appeal by the defendant, George J. Klueppel, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 8th day of November, 1902.

Appeal by Katherine Bement Davis, superintendent of the State Reformatory for Women at Bedford, New York, and others, the defendants in the three above-entitled actions, from an order of the Supreme Court, made in each of the above-entitled actions at the Kings County Special Term and entered in the office of the clerk of the county of Kings, in the case of Clark, on the 14th day of June, 1902, in the case of Smith, on the 18th day of June, 1902, and in the case of Frank, on…

Appeal by the defendant, Joseph Michaels, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of May, 1902, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 19th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Atlantic Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of May, 1902, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 6th day of June, 1902, denying the said defendant’s motion for a new trial made upon the minutes.</p>

Motion by the plaintiff, John Obanhein, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of April, 1902, upon the verdict of a jury for $2,250, and also from an order entered in said clerk’s office on the 25th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of June, 1902, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 8th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p> The bomrd of education of the city of New York ma/y he sued by a teacher to establish the right to a sala/ry. </p> <p>Under the provisions of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466) an action to establish the validity of a disputed claim for salary alleged to be due to the plaintiff as a teacher in one of the public schools of the city of New York will lie against the board of education of that city and need not be brought against the city itself.</p> <p>A contrary construction of the charter provisions is not required by section 1614 of the charter, which provides, “all future suits by or against The City of New York as herein constituted or against any of the municipal and public corporations in this act united and consolidated shall be in the corporate name of ‘ The City of New York.’ ”</p>

<p>A notary should certify that “ the person, described in and who executed ” the instrument appeared before him,— what certificate of authentication of the notary is insufficient—adverse possession under a written instrument—entry thereunder exclusive of other right must be shown.</p> <p>A certificate of acknowledgment taken without the State of New York to a power of attorney, in which certificate the notary certifies that on a certain day, “personally appeared before me the within named James Monroe Ouser, to me known and acknowledged the above letter of attorney to be his act and deed,” is insufficient to entitle the power of attorney to be recorded in the State of New York, in that it does not state that the notary knew the person who so appeared before him to be the person described in and who executed the power of attorney.</p> <p>The certificate of authentication executed by the clerk of a court in the State in which the acknowledgment was taken is defective where the clerk, instead of certifying, in accordance with the provisions of the statute, that he is well acquainted with the handwriting of the notary and" verily believes that his signature to the acknowledgment is genuine, merely certifies that said notary is “ duly commissioned and qualified, and that full faith and credit are due to all his acts as such.”</p> <p>Proof of.the undisturbed possession of land for more than twenty years under deeds purporting to convey the same does not establish title by adverse possession, in the absence of proof that the entry was under the deeds in question and was exclusive of any other right.</p>

<p>Statute of Limitations — within what time after a ward comes of age an action must be brought to compel her general guardian to account — the action is not based on fraud.</p> <p>The complaint in an action brought in April, 1901, against the executors of a decedent, who was the general guardian of the plaintiff, to recover money-alleged to belong to the latter, stated that the deceased was appointed her general guardian January 13, 1864, and that he received the money in question thereafter; that he died on January 22, 1892, without having rendered an account; that the defendant executors were appointed March 16,1892, and that the money had gone into their hands; the plaintiff attained her majority in January, 1885.</p> <p>The complaint further alleged that the plaintiff had never received any part of the money and that she only learned the facts stated, with the exception of the fact of the guardian’s death, within three months before the commencement of the action.</p> <p>Held, that the action was barred by the Statute of Limitations;</p> <p>That subdivision 5 of section 382 of the Code of Civil Procedure, which provides that a cause of action is not deemed to have accrued until the discovery of the facts constituting the fraud, did not apply as the complaint did not allege fraud.</p> <p>Semble, that the plaintiff was required to bring the action within six years after attaining her majority.</p>

Appeal by the plaintiff, Sigmund Samodwitz, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered upon the decision of the court dismisssing the complaint.

Appeal by the defendant, Peter Huwer, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Damon Merrill, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of January, 1903, denying the plaintiff’s motion for final judgment.

Appeal by the plaintiff, Benoit Wasserman, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of May, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Contract between a land improvement company and a railroad company for the erection of a station and the stopping of trains thereat — measure of damages for its breach by the railroad company—proof of damage.</p> <p>In an action brought by a land improvement company against a railroad company to recover damages for the breach of a contract by which the railroad company agreed to establish a suitable passenger station on suburban land belonging to the land improvement company, to stop its trains at such station and furnish the land improvement company with free desk room therein for a period of seven years for the purpose of carrying on its real estate business, the measure of damages recoverable by the land improvement company is the difference between what the land would have been worth if the station had been erected and what it was worth without the station.</p> <p>What evidence given in such an action justifies the jury in finding that the damages sustained by the land improvement company from the breach of contract were purely nominal, considered.</p>

Appeal by John A. O’Keeffe, as executor, etc., of Patrick Pollard, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate's Court on the 13th day of May, 1902, judicially settling said executor’s accounts and confirming the report of the referee theretofore appointed to hear and determine the issues arising on said accounting.

Appeal by the plaintiffs, James Y. Lawrence, individually and as sole surviving partner of the firm of Lawrence Bros., and another, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 2d day of October, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, sustaining demurrers to the plaintiffs’ complaint.

Appeal in the first above-entitled proceeding by the petitioners, Henry J. Brandt and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 29th day of September, 1902, dismissing the petitioners’ application for the revocation of the letters testamentary issued to Herman Wischmann, as sole surviving executor of and trustee under the last will and testament of Henry J. Brandt, deceased.

Appeal by the defendant, The New York Athletic Club of the City of New York, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 10th day of June, 1902, setting aside a verdict in favor of the defendant and granting a new trial of the action.

Appeal by the defendant, J. Campbell Thompson, 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 31st day of December, 1902, granting the plaintiff’s motion to place the cause upon the Special Term calendar.

Appeal by the defendant, John T. Williams, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of 27ew York on the 21st day of December, 1901, upon the decision of the court rendered after a trial at the 27ew York Special Term, and also from an order entered in said clerk’s office on the 20th day of May, 1902, denying the defendant’s motion for a new trial.

<p>Appeal by the defendant, Jane M. Oudlipp, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of December, 1901, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Motion to vacate an attachment — when made on the papers on which it was granted, and on the judgment in the action — the facts recited in the judgment may he used to support the attachment— they core presumed to he true—proof as to the attached property having been applied on the judgment —proof that the summons has issued.</p> <p>Assuming that a defendant who makes a motion to vacate an attachment, after a judgment has been rendered in the action, is obliged to establish that the attached property has not been applied upon the judgment, still, if he makes his motion upon the papers upon which the attachment was granted and on the j udgment and does not in the notice of motion limit the purposes for which the judgment may be used, the facts recited in the judgment are available to the plaintiff in support of the attachment.</p> <p>In such a case the court will presume that the facts recited in the judgment are supported by sufficient proof.</p> <p>Semble, that it was not necessary for the defendant to show that the attached property had not been applied upon the judgment in order to entitle him to move to vacate the attachment. The fact of such application is a matter of defense.</p> <p>Section 638 of the Code of Civil Procedure, which provides that the warrant may be granted “ to accompany the summons or at any time after the commencement of the action,” justifies the inference that no proof in the first instance of the issue of the summons is requisite.</p>

Appeal by the defendants, Morris Rosenberg 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 December, 1902, denying the defendants’ motion for an order requiring the plaintiff to give security for costs.

Appeal by the defendant, The Industrial Federation of America, 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 January, 1903, denying the defendant’s motion to vacate an attachment theretofore granted in the above-entitled action.

<p> Special partnership —proof that an affidavit, that the contribution of the special partners had been actually and in good faith paid, was false. </p> <p>What evidence, given in an action brought to charge special partners as general partners under section 8 of the Limited Partnership Law (1 R. S. 765), is sufficient to sustain a finding by a referee that a statement in the affidavit, required by the statute, to the effect that the contribution of the special partners to the common stock of the copartnership had been actually and in good faith paid in cash, was false, considered.</p>

<p>Motion by the defendant, Henry T. Chapman, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury rendered after a trial at the New York Trial Term.</p>

<p> Accord and satisfaction—the acceptance by a creditor, “ in full settlement of his account," of fifty dollars in cash and the debtor's note for fifty dollars and its subsequent payment do not discharge a judgment for two hundred and twenty-six dollar's. </p> <p>Where a person, against whom a judgment for two hundred and twenty-six dollars and twenty-nine cents has been obtained, makes an arrangement with the judgment creditor, by which the latter agrees to satisfy the judgment upon receiving from the judgment debtor fifty dollars in cash and his unindorsed promissory note for fifty dollars, payable in three months, with interest, and, in pursuance of this arrangement, the judgment debtor pays the fifty dollars in cash, gives the promissory note and pays the same at maturity, taking from the judgment creditor a receipt stating that the payment was “in full settlement of his account,” the transaction does not constitute an accord and satisfaction which will prevent the judgment creditor from subsequently enforcing the judgment for the amount remaining unpaid thereon.</p>

Appeal by the plaintiffs, William D. Clarke and another, from an interlocutory judgment of the Supreme Court in favor of the defendant, Henry B. Heylman, entered in the office of the clerk of the county of New York on the 6th day of November, 1902, upon the decision of the court, rendered after a trial at the Yew York Special Term, overruling the plaintiffs’ demurrer to the defense set forth in the 4th and 5th paragraphs of said defendant’s answer.

Appeal by William B. Sutherland, as temporary receiver of the property of The Henry Zeltner Brewing 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 2d day of February, 1903, denying the receiver’s motion to vacate and set aside a judgment theretofore entered in this action, the execution issued thereon and the levy made under said execution.

Appeal by the plaintiff, Henry Meyer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of June, 1902, vacating and setting aside a judgment theretofore entered upon defendant’s default, and permitting the defendant to answer.

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of June, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 2d day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Helene Tremberger, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New Tork on the 29th day of July, 1902, upon the decision of the court, rendered after a trial at the New Tork Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Charles H. Ivison, from a judgment of the Supreme Court in favor of the defendants, David B. Ivison and others, entered in the office of the clerk of the county of New York on the 28th day of March, 1901, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 27th day of April, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p> Indemnity bond to a sheriff—right of the sheriff, who has com%n'omised a suit brought against him, to recover the judgment and counsel fee therein from the surety. </p> <p>A sheriff, being requested to levy under an execution upon property in the possession of a relative of the judgment debtor, obtained from the judgment ■ creditors a bond of indemnity for §20,000, conditioned to “save, keep and bear harmless and indemnify the * * * sheriff * * * of and from all harm, let, trouble, damage, liability, costs, counsel fees, expenses, suits, actions, judgments.”</p> <p>After the levy and a sale had been made the person from whose possession the goods were taken brought an action against the sheriff to recover upwards of $100,000 as damages resulting from the levy. The sheriff sought to compel the substitution of the surety upon the bond of indemnity as defendant in his place, but was unsuccessful. Upon the trial the sheriff, acting in good faith, admitted that the value of the property taken under the execution was at least $15,000, and that he had no evidence tending to contradict the plaintiff’s testimony that the same belonged to him, whereupon the court directed a verdict in favor of the plaintiff for $15,000.</p> <p>Held, that the surety upon the bond of indemnity was liable to the sheriff for the amount of the judgment entered upon the verdict, together with the expenses and counsel fees incurred in defending the action.</p>

<p>Insurance — waiver of a failure to pay an assessment within the time fixed therefor — executors and administrators only can waive the prohibition against a physician’s testifying as to the condition of his patient — a widow cannot.</p> <p>In an action to recover upon a benefit certificate issued by the defendant, a fraternal benefit insurance association, to the plaintiff’s husband, it appeared that the constitution of the defendant provided that a member who did not pay his monthly assessment on or before the last day of each month should be suspended and should not be entitled to the privileges of the benefit fund until he had been reinstated, and that the defendant’s rules required the payment of an assessment for the month in which a member died; that the plaintiff's husband did not pay his assessment for the month of February, 1898, until March 5, 1898; that on the latter date he paid such assessment to the financial reporter of the subordinate lodge of which he was a member, and that the financial reporter forwarded the assessment to the supreme lodge, which retained the same; that the insured committed suicide March 20, 1898, and that after his death the assessment for the month of March was paid to and accepted by the defendant. The insured did not apply for reinstatement after February, 1898. It further appeared that assessments were paid to and accepted by the subordinate lodge after they became due, and that members were not suspended or reinstated on that account.</p> <p>Held, that the evidence justified a finding that the defendant had waived the forfeiture arising from the failure of the plaintiff’s husband to pay the February assessment on or before the last day of that month. (Ingraham, J., dissented.) The term “personal representatives,” used in section 880 of the Code of Civil Procedure, which provides, “ a physician or surgeon may, upon a trial or examination, disclose any information as to the mental or physical condition of a patient who is deceased which he acquired in attending such patients professionally, * * * when the provisions of section eight hundred and thirty-four have been expressly waived on such trial or examination by the personal representatives of the deceased,” applies only to the executors and administrators of the decedent, and does not extend to a widow who brings in her individual capacity an action against a fraternal benefit association to recover upon a benefit certificate issued to her husband in which she is designated as the beneficiary.</p>

<p>Appeal by the defendant, the Press Publishing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th ■day of May, 1902, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 12th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by The City of New York from that part of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of July, 1901, denying a motion to confirm the report of commissioners of estimate and assessment in the above-mentioned street opening proceeding as to “ Damage Map Ho. 10 ” and returning the report to the commissioners for reconsideration.

Appeal by The City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of September, 1901, confirming the report of commissioners of estimate and assessment in the above-entitled proceeding.