Volume 80 — New York Supplement

<p>Appeal from municipal court, borough of Brooklyn.</p> <p>Action by William W. Butcher against the Harvie Drug Company. Judgment for plaintiff, and defendant appeals. Reversed. IXivliL X wX LXXX CXXXXX \XvXvXX\JdXX t • XVL V LI OvVI*</p>

<p>1. Chattel Mortgages — Removal from State — Fraudulent Intent — Criminal Liability. Pen. Code, § 571, punishes a chattel mortgagor who sells, secretes, or disposes of the property “with intent thereby to defraud” the mortgagee, etc. A mortgage provided that, if the mortgagor removed the goods from the house where then located without the mortgagee’s written consent, the latter might elect that the whole debt should become due. The mortgagor had effected one removal without such consent, after which the mortgagee, with knowledge, accepted installments of the debt. When in advance on his weekly payments, and having paid one-half of the debt, the mortgagor shipped the goods to North Carolina. When asked to make further payments, he informed the mortgagee of their present location, and also made a further payment. iffeZi?, that there was no intent to defráud, so as to create a criminal liability.</p>

<p>'1. Conversion — Complaint—Insufficiency.</p> <p>A complaint in an action to recover money alleged to have been wrongfully appropriated by defendants to their own use averred that defendants, stockbrokers, promised to purchase for plaintiff 10 shares of stock, and that the plaintiff paid to them $30 on account, which defendants had wrongfully converted, but did not aver whether defendants. were to advance the balance of the price, or to purchase in the name of plaintiff and pledge his credit therefor. The terms of the contract under which the purchase was to be made were not set out, and there was no allegation that plaintiff had demanded the money. Reid, that as there was nothing to show that defendants were not entitled to mingle the $30 paid on account with their own funds, or that they were in any way in default, the complaint was demurrable.</p>

■ Action by Amelia B. Ballantyne against John H. Steenwerth, as executor of Phillip Steichelmann, deceased. From an order granting full statutory costs and disbursements to plaintiff, defendant appeals. Affirmed.

Action by Simon Hirshbach against Alexander P. Ketchum. From an order granting a motion to- amend a final judgment dismissing plaintiff’s complaint on the merits by striking out the words “on the 'merits,” defendant appeals. Reversed.

Action for an injunction by Sam S. Shubert and others against Aimee Angeles. From an order continuing an injunction pendente lite, defendant appeals. Modified.

<p>Appeal from" special term, New York county.</p> <p>Suit by Mollie Lentschner, an infant, by Charles Schwartzberg, her guardian ad litem, against Max Lentschner. From a judgment dismissing her complaint after trial at special term, plaintiff appeals. Reversed.</p>

Action by Abraham Seligsberg against Leopold Schepp. From an order granting inspection of plaintiff’s books and papers before answer, plaintiff appeals. Reversed.

Action by Leopold Blum, an infant, by Fannie Blum, his guardian ad litem, against the Metropolitan Street Railway Company. From a judgment dismissing the complaint upon a trial before a jury, plaintiff appeals. Reversed.

<p>Appeal from special term, New York county.</p> <p>Action by Abraham Sartorius against William B. Gottlieb. From .an order referring, on motion of plaintiff, all the issues to a referee to hear, try, and determine, defendant appeals. Reversed.</p>

<p>1. Municipal Corporations — Veteran Laborers — Absence—Recovery of Wages.</p> <p>A veteran taken from the civil service list and employed in the department of parks in the city of New York for several years at a wage of $2 per day, payable weekly, is not an officer of the city, nor an incumbent of the office to which a salary is attached, so as to entitle him to recover such wages for time lost on account of sickness.</p> <p>2l Same — Actions—Appeal—General Exceptions.</p> <p>Where there was only one conclusion of law, and that was entirely erroneous, a general exception thereto was sufficient to authorize a review thereof on appeal.</p>

<p>Application by the people on the relation of Albert C. Wiegand, for writ of mandamus against Jacob A. Cantor, president of the borough of Manhattan. Denied.</p>

Action by Barlow R. Charlton, an infant, by Rachel M. Charlton, his guardian ad litem, against the Forty-Second Street, Manhattan-ville & St. Nicholas Avenue Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>1. Injury to Employe — Contributory Negligence — Evidence.</p> <p>Evidence in an action to recover for the death of an employe, caused by the explosion of fumes arising from varnish which he was using, examined, and held- that, contributory negligence by deceased was conclusively shown.</p> <p>Laughlin, J., dissenting.</p>

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

Action by Hugo Straus against Aaron Guilhou and others. From an order modifying an order of discontinuance, and from a judgment entered therein, plaintiff appeals. Reversed.

<p>Appeal from judgment on report of referee.</p> <p>Action by Elizabeth B. Burch against Thomas Hamilton Burch. From a judgment confirming the report of a referee granting defendant an absolute divorce, plaintiff appeals. Reversed.</p>

<p>Appeal, from trial term, New York county.</p> <p>Action by Gertrude S. Kramer against Edwin G. Kramer. From a judgment on a verdict directed for plaintiff, defendant appeals. Reversed.</p> <p>See 74 N. Y. Supp. 1049.</p>

<p>Petition by Patrick Cullinan, state commissioner of excise, against one Kuch for cancellation of a liquor license. Cancellation ordered.</p>

Suit by Edward S. Skillin and others against Henry T. Skillin, individually, as cestui que trust, and as administrator of Julia L. Skillin, deceased, and others. From an interlocutory judgment for plaintiffs entered upon decision of the court at special term, defendants appeal. Affirmed.

Action by Edward Wagner, by his guardian ad litem, Louis Ehrhardt, against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>1 Libel — Justification—Irritation by Plaintiff.</p> <p>In an action for libel, the fact that plaintiff had written and published of defendant or of his newspaper some irritating matters does not justify the publication of a libel concerning plaintiff, and is not pleadable as a full defense.</p> <p>3. Same — Partial Defense — Mitigation of Damages</p> <p>Under Code Civ. Proc. § 536, providing that in actions for personal injury the defendant may prove facts, not amounting to a total defense, tending to mitigate or otherwise reduce plaintiff’s damages, if set forth in the answer, the defendant, in an action for libel, may allege that the plaintiff had written and published certain irritating matters of defendant or of his newspaper.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Edward Rowan against Wells, Fargo & Co. From a. judgment for plaintiff entered on a verdict, and from an order denying a motion for a new trial, defendant appeals. Reversed.</p>

<p>Appeal from municipal court, borough of Queens, Second district.</p> <p>Action by Frederick W. Heinrich against Jessie Van Wrickler From a judgment for defendant entered on a dismissal of the complaint at the close of plaintiff’s evidence, he appeals. Affirmed.</p>

Action by George T. Trauber against the Third Avenue Railroad Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

<p>1. Guardian Ad Litem for Infant — Execution—Giving Security</p> <p>Under Code Civ. Proc. § 474, providing that a guardian ad litem for an infant may not receive money of the infant till he has given security, and general rules of practice No. 51, to the same effect, she or her attorney may not proceed by execution to collect a judgment till the security is given.</p> <p>Patterson, J., dissenting.</p>

Action by Robert A. Craig, suing on behalf of himself and all other stockholders of the Anglo-American Savings & Loan Association, against Thomas L. James and others, receivers of the association. From an order striking out, on motion of defendants, so much of the amended complaint as purports to set forth the first cause of action, plaintiff appeals. Reversed. See 75 N. Y. Supp. 813.

<p>Appeal from trial term, Orange county.</p> <p>Action by George Landusky against Edward C. Beirne. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Default Judgment — Vacation—Identity of Defendant — Indem Sonans.</p> <p>A default judgment entered against “Zachariah” B., the name Zachariah having been alleged by plaintiff to be fictitious and defendant’s Ohristian name unknown, will not be vacated on motion of “Zax” B., for failure to serve summons, no effort having been made to enforce it against Zax.</p>

<p>1. Doweb — Damages fob Withholding</p> <p>Under Code Civ. Proc. § 1600, providing that damages for the withholding of dower shall be computed, where the action is against the heirs, from the husband’s death, but, where the action is against anyone else, from the time when the widow demanded her dower, the latter rule governs, though some defendants are heirs, where the action is against them as beneficiaries under a trust.</p> <p>Appeals from special term, Kings county.</p> <p>Action by Susan Gorden against Joseph Gorden and another, executors and trustees under the will of "William Gorden, deceased, and others. The plaintiff appeals from so much of the judgment as awards to the plaintiff damages for the withholding of her dower computed from the 31st day of March, 1900, instead of from the 2d day of January, 1899. Defendant Joseph Gorden, as executor and trustee, appeals from so much of said final judgment as awards to himself and others, as trustees, the sum of $1,561, instead of $1,840.25. Stephen M. Hoye, as executor and trustee, appeals from so much of said judgment as determines that plaintiff was entitled to the provisions of the last will and testament of William Gorden, deceased, in addition to dower. Modified.</p>

<p>Appeal from municipal court.</p> <p>Action by William Clayton against Edward M. Knox. Judgment for plaintiff, and defendant appeals. Reversed.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Thomas F. Moore against Richard Stainton and others. From a judgment against defendant Stainton alone, and from an order denying a new trial, Stainton appeals. Affirmed.</p>

<p>1. Landlord and Tenant — Lease—Holding Over — What Constitutes.</p> <p>A city leased a building for three years for the use of certain officers, who occupied it until about a month before the expiration of the lease, when, with the knowledge of the lessor, they vacated the building, except that they left therein two worthless stoves. During the tenancy, such officers, with the consent of the lessor, had placed a Yale lock on the door, and when they moved out they locked the door, and put the keys in the desk of the chief engineer. They were not discovered by the one who held the office when the lease expired until about six weeks after-wards, when they were tendered to the lessor. The building, as the lessor knew, was not occupied after such officers moved out. Held not to constitute a holding over by the city, so as to render it liable for rent beyond the term of the lease.</p>

<p>Appeal from municipal court of New' York.</p> <p>Action by Samuel J. Williams against Abraham C. Brown and others. Judgment for plaintiff, and defendants appeal. Affirmed.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by Michael Foley against the Metropolitan Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.</p>

<p>Appeal from order of surrogate, Westchester county.</p> <p>Proceedings by Frank V. Millard, receiver in supplementary proceedings of legatees under the will of John J. McICnight, deceased, for the revocation of letters testamentary issued to the executors and trustees under the will of the decedent. From an order denying his application, the applicant appeals. Affirmed. • •</p>

<p>1. Sales — Warranty—Breach—Acceptance op Goods — Waiver.</p> <p>Defendant agreed to purchase from plaintiff a certain number of sweaters each week for a year, to be all wool, and of a certain weight, and from size No. 24 up to size No. 34, inclusive. In an action for the balance of the price defendant alleged that the goods were not in all respects equal to the samples, but were poorly made, of bad sizes and color, not assorted according to orders, and were unmerchantable. Defendants had accepted the goods, and retained them, without examination or objection, until after the beginning of the suit. Held that, as the claim of breach of warranty did not relate to any express warranty contained in the written agreement, or to any implied warranty which would survive the acceptance, the counterclaim based thereon was improperly allowed.</p> <p>2. Same — Expense op Examination — Propriety op Allowance.</p> <p>A buyer who counterclaims for breach of warranty when sued for the price of goods is not entitled to recover the expenses of making an examination of the articles bought.</p> <p>3. Judgment — Amount op Recovery — Conformity to Pleading.</p> <p>It is error to render judgment for a party for more than he claims in his pleading.</p>

<p>1. Fire Policy — Breach of Conditions — Estoppel to Assert.</p> <p>A fire policy provided that it should be void “if, with the knowledge of the insured, foreclosure proceedings be commenced,” etc. Foreclosure proceedings had been commenced more than a year before the policy was issued, which the agent from whom the policy was obtained knew. Held, that the company was estopped to assert that the policy was avoided.</p>

<p>Appeal from trial-term, Westchester county.</p> <p>• Action by Thomas Wynn against the city of Yonkers and others. From a judgment in favor of plaintiff, and an order denying their motion for a new trial, defendants appeal. Affirmed.</p>

<p>Appeal from special term, Kings county.</p> <p>Action by Archibald A. Hutchinson against John Alvin Young. From an order changing the place of trial from Kings to New York county, plaintiff appeals. Reversed.</p>

<p>Appeal from trial term, Kings county.</p> <p>Action by George H. Huneke against the West Brighton Amusement Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by Sarah Adams against the Union Railway Company of New York City. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.</p>

<p>1. Indemnity Insurance — Premiums—Discovert.</p> <p>Indemnity policies provided that the premiums should be originally based on an estimate of the compensation paid by assured to its employés during the policy, and that if the compensation actually paid exceeded the estimate assured should pay an additional premium, and if the amount paid was less a pro rata share of the premium should be refunded. The premium on other policies, insuring defendant against liability for the acts of drivers, was based on the number of drivers employed under the same conditions, and both policies provided that plaintiff should have the right to examine insured’s books, so far as they related to the wages paid and to the number of drivers employed. Held, in an action by insurer to recover additional premiums, in which the complaint alleged that the number of drivers employed and the amount of wages paid exceeded the number and amount represented by assured, that plaintiff was entitled to an order for the examination of the latter’s books, under Code, Civ. Proc. § 803, giving the court power to compel the inspection of the books of the adverse party relating to the merits of the action.</p> <p>2. Same — Lachi-s.</p> <p>Where plaintiff alleged that defendant made statements as to the amount paid its employés, which plaintiff believed to be true, and that on the discovery of the falsity of the statements it at once made an application for the examination of defendant’s books, and defendant did not deny that the statement was made to plaintiff, and that such statement was not true, the fact that plaintiff had delayed application for such inspection until five years had expired, did not constitute such loches as would deprive it from such relief.</p> <p>8. Same — Extent of Right’ — Modification of Order.</p> <p>Where plaintiff was entitled to discovery and inspection of defendant’s books in so far as they showed the amount paid employés and the number of drivers employed by defendant, an order directing defendant to produce and deposit with the clerk of court “its ledgers, cashbooks, timebooks, timesheets, and all other books showing the amount of wages paid to employés, during the period covered by the controversy,” "was too broad, and should be limited to requiring defendant to produce books of original entry in which was entered payments to its employés, etc.</p>

Action by the Fidelity & Casualty Company of New York against Francis W. Seagrist, Jr., and others, composing the firm of F. W. Seagrist, Jr., & Co. From an order granting discovery of defendants’ books, defendants appeal. Modified.

<p>1. Adulterated Milk — Construction of Sanitary Code.</p> <p>New York City Sanitary Code, § 63, providing that no adulterated milk “shall be brought into, held, kept, or offered for sale at any place in the city,” does not prohibit the mere possession thereof.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by the Locomobile Company of America against the American Bridge Company of New York to restrain defendant from prosecuting an action brought by it against the plaintiff in the superior court of Connecticut until after the determination of another action brought by it against the plaintiff in the supreme court of .New York. From an order granting the injunction, defendant appeals. Affirmed.</p>

Actions by Sarah A. Vandercar against the Universal Trust Company, and John H. Vandercar against the same. From judgments in favor of plaintiffs, and from orders denying new trials, defendant appeals. Affirmed.

<p>1. Harmless Error.</p> <p>Where evidence erroneously received was so remote in its application to the case that it could hardly have influenced the jury, and no reference was made to it in the charge, the error was not prejudicial.</p>

Action by Alexander R. Hart against Martin Maloney. From a judgment on dismissal of the complaint at the close of the evidence on both sides, plaintiff appeals. Reversed.

<p>Appeal from trial term, New York county.</p> <p>Action by Marie Huebner, as administratrix of the estate of Otto Huebner, deceased, against George L. Hammond and another. From a judgment for defendants, plaintiff appeals. Affirmed.</p> <p>This is a statutory action, based upon the statute of New Jersey, which is similar to that in this state, to recover for the death of Otto Huebner, alleged to have been caused by the negligence of the defendants. The decedent was in the employ of the respondent company as a. longshoreman, and had worked in that capacity for several years. On the morning of the 8th of May, 1902, the Patricia, a steamship owned by the respondent company, was lying at the .south side of Pier No. 1, the northernmost of three piers on the Hudson river, in Hoboken. The decedent and eight or nine other longshoremen had been engaged in transferring a cargo of lead from a lighter or barge to the Patricia. The Excelsior, a lighter owned by the respondent Hammond, was lying in the same slip or basin along the north side of Pier No. 2, loaded with a cargo of rosin to be transferred to and shipped by the Patricia. She was awaiting the unloading of the cargo of lead, and her cargo was to be unloaded into the Patricia at the place occupied by the lead lighter. The Excelsior was square at both ends, and had no propelling power. The rosin was in barrels which lay in tiers upon the deck, covering the entire deck, except a space of about eight feet at either end. The crew of the Excelsior consisted of only two men, a master or captain and an assistant or .mate. As the longshoremen finished unloading the lead, the boss stevedore, also in the employ of the respondent company, Ordered the captain of the Excelsior “to come alongside next,” find ordered the decedent and other longshoremen to remain on the lead lighter, which was being pulled away by lines attached to Pier 2, and go aboard the Excelsior for the purpose of aiding the captain and mate in pulling her alongside the Patricia and of then unloading the cargo. There was some conflict in the evidence as to the manner in which the Excelsior was being pulled over to the Patricia, but there was evidence tending to show and justifying the inference that one line had been thrown from the bow and another from the stern of the Excelsior and made fast to the Patricia; that the captain was at one end, and the mate at the other, pulling on these lines; that the boss stevedore then called to the captain of the Patricia to pull up to the lead lighter, and take the stevedores aboard, which he did; that the stevedores came aboard the Excelsior at or near the stern or bow; that some of them proceeded to assist in pulling in the bowline, and others, among whom was the decedent, passed to the middle of the Excelsior; that the boss stevedore then further ordered the longshoremen to give. the captain and mate a hand in bringing the Excelsior alongside, and the decedent and others started for the stern, evidently intending to comply with the order. As the decedent stepped down from the barrels to the clear part of the deck he stepped upon a grating covering a manhole in the deck for ventilating purposes, which was about the size of an ordinary coal hole in a sidewalk. The grating tilted up edgewise, letting one foot through, and, the other foot passing down the other side, the decedent landed astride the upturned edge of the grating, inflicting injuries which caused his death. There was a tight cover for use over the grating at times when it was not necessary to have it open for ventilating purposes, but it was off at the time in question. This was an iron grating, the thickness of which does not appear. It rested on an iron flange three-quarters of an inch below the surface of the deck, and about half an inch wide. The undisputed evidence showed that the grating was in place at the time the decedent stepped upon it, so that it appeared all right, but it was smaller than the frame in which it set. The only direct evidence as to the condition of the grating when in place was the testimony of one witness, who first testified that there was a play of about a quarter of an inch all around it when placed in the center, but he subsequently testified that the entire play was only a quarter of an inch. The grating was not fastened in any manner, and the undisputed evidence is that although in place it did slide and tip up when the decedent stepped upon it. The testimony of the captain and mate indicated that they could have brought the lighter alongside the steamship without any assistance from the longshoremen; but it appears that they were making slow progress, and it would have taken them much longer to do so unassisted. It also appears that they were further aided by having their stern line, which was fast to Pier 2, thrown off by an employs of the respondent company by direction of the boss stevedore. It was also shown that it was the general custom in such cases for the longshoremen to assist in this manner in bringing the lighters alongside.</p>

Action by Herman Prince against Solomon Jacobs. From a judg- . ment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Application of John El. Digney and others for taxation of their •.fees as commissioners of appraisal in proceedings to acquire real estate in connection with the water supply of the city of Mew York. From an order taxing the fees, the city of New York appeals. Affirmed.

<p>Certiorari by the people, on relation of Augustus Morey, to the town board of the town of' Oyster Bay, to review the action of such board on the audit of a claim of relator for services rendered in repairing a bridge. Matter remitted, with directions.</p>

<p>■Appeal from special term, New York county.</p> <p>Action by Walter G. French against the New York Mercantile Exchange. From a judgment in favor of defendant, plaintiff appeals. Affirmed.</p>

Action by Sylvester Pope and another, as executors of Josephine Iv. Peyton, deceased, against the Manhattan Railway Company and the New York Elevated Railroad Company. From an order granting a motion to bring in the grantee of the executors as a party plaintiff, defendants appeal. Affirmed.

<p>1. Contract — Consideration.</p> <p>One’s aid, whereby a firm of architects gets a contract for work on a building, is sufficient consideration for the firm’s agreement to pay him part of the commissions.</p> <p>2. Partnership— Accountimg — Equity Jurisdiction.</p> <p>Equity will take a partnership accounting, though a dissolution is not sought, where the firm is engaged in important work, requiring time and. the service of all the partners till its completion, and the dispute is confined to whether a certain contract made by one of the partners in the firm name, stipulating for payment to a person of a percentage of the commissions on a certain job, was binding on all the partners, and, if so, how it was to be construed, and the person with whom it was made having been made a defendant by order of court</p> <p>8. Appeal — Part of Judgment.</p> <p>No appeal having been taken from that part of a judgment in an equity suit which awarded a money judgment to one of the parties, the claim</p> <p>cnnnot be made on appeal that, as to the claim covered by that part of</p> <p>. the judgment, appellant had a right to a jury trial.</p> <p>McLaughlin and Laughlin, JJ., dissenting.</p>

Action by Thomas F. Phelan, an infant, by his guardian, John J. Phelan, against the Forty-Second Street, Manhattanville & St.. Nicholas Avenue Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Appeal from municipal court, borough of Richmond, First district.</p> <p>Action by Frank Stoddart agaitist the city of New York. From a judgment in favor of plaintiff, defendant appeals. Modified and affirmed.</p>

<p>1. Account Books — As Evidence.</p> <p>In a suit for commissions and damages by a firm of brokers employed by defendant to sell certain stock, defendant having failed to deliver if after plaintiffs had sold it, and they being obliged to purchase other stock to make the delivery, plaintiffs’ account books are not admissible as evidence of the selling and purchase price; it not- appearing that a statement of the account was mailed to defendant, so that, he having retained it, it might become an account stated, but merely that a statement was delivered to a boy to take to defendant; and the member of the firm who made the sale and purchase on the stock exchange not testifying that he examined the entries in the books when he recollected the figures, so that he knew that they were correct, but merely that he gave the figures to the telephone clerk on the exchange to have them telephoned to plaintiff’s office, according to the custom, and the bookkeeper testifying that he made the entries from the message from the telephone clerk, and the telephone clerk not testifying that he transmitted the message as he received it from the broker.</p> <p>2. Same.</p> <p>The rule relating to admission of shopbooks of services rendered, or the sale and delivery of merchandise on credit, does not extend to purchases from or sales to third persons by an agent, in an action between him and his principal; and, if it did, it would be necessary to show that the agent, whose books were sought to be introduced, kept fair and honest books, by the testimony of persons who had dealt with him and settled by his books.</p> <p>O’Brien, J., dissenting in part.</p>

<p>1. Aldermen — Election—Power of Board of Aldermen.</p> <p>Under New York City Charter, § 27 (Laws 1901, c. 466), providing that the hoard of aldermen shall be the judge of the “election returns” of its members, subject to review by certiorari, its duty is to determine who, from the returns of the election as canvassed by the board of county canvassers and certified to by the board of elections, as provided by Election Law (Laws 1896, c. 909, as amended by Laws 1901, c. 95) § 11, subd. 2, and sections 130, 131, 133, 135, and 138, were elected; and it has no power to go behind the returns.</p>

<p>1. Action against Sheriff — Wrongful Levy — Evidence.</p> <p>An owner of horses executed an instrument to plaintiff, which was either a mortgage or a bill of sale of the horses, but which was not filed as required by Laws 1897, c. 418, § 90. The sheriff levied upon them, and plaintiff sued for wrongful levy. Held, that the evidence offered by plaintiff that the owner of the horses had transferred them to him in payment of the loan was admissible.</p> <p>3. Chattel Mortgage — Transfer to Mortgagee.</p> <p>Where a chattel mortgage was not filed as required by Laws 189T, e. 418, § 90, and was therefore void as against the creditors of the mortgagor, such mortgagor could, before levy of a judgment, transfer the property independently of the instrument, so as to vest in the transferee a title superior to the rights of the judgment creditor.</p>

' Application by the people for writs of habeas corpus and certiorari, on the relation of Lawrence Murphy, against Leroy B. Crane, as city magistrate, and another. From a final order dismissing the writs,the relator appeals.

Application by William W. Law for the probate of the will of John S. Law, deceased. From a surrogate’s decree dismissing the proceeding, petitioner appeals. See 67 N. Y. Supp. 857. John S. Law died on the 25th day of August, 1893, at Greenwich, in the state of Connecticut, leaving a last will and testament, which related to both real and personal property.

Action by Julius Willsen, as administrator, etc., of Lawrence Will-sen, deceased, against the Metropolitan Street Railway Company. From a judgment in favor of defendant, and from an order denying plaintiff’s motion for a new trial, he appeals. See 74 N. Y. Supp. 774. This action is brought for the purpose of recovering damages for the alleged negligent killing of the plaintiff’s intestate by being run over by one of the defendant’s cars.

Action by Charles H. Diamond against Everett P. Wheeler. From a judgment in favor of plaintiff and an order overruling a motion for' a new trial, the defendant appeals.

Jones against William R. Willcox, president of the department of parks of the city of New York and commissioners of parks for the boroughs of Manhattan and Richmond, to compel respondent to reinstate the petitioner as superintendent of small parks in the department of parks of the city of New York, or, if said position has been abolished, to transfer him to the position of assistant superintendent of parks or to any branch of the municipal public service for which he may be…

<p>1. Attachment — Tontine Insurance Policy — Maturity.</p> <p>Where a tontine insurance policy provided that it should have no cash surrender value prior to the completion of the tontine dividend period, on October 8, 1888, and that prior thereto neither assured nor his beneficiary could derive any benefit from the policy, except the face value of the policy in the event of the insured’s death, the tontine period, after the expiration of which the insured was entitled to exercise certain options, among which was to surrender the policy for cash, included the 8th day of October, 1888; and hence no demand existed in favor of the insured, and against the company, on that date, which could be attached,as authorized by Code Oiv. Proc. § 649, subd. 3, by leaving and serving a copy of the warrant and the notice of the attachment with the insurance company.</p> <p>2L Same — Right of Election — Nature and Scope.</p> <p>Oode Oiv. Proc. § 648, authorizes an attachment to be levied on a cause of action arising on contract, belonging to the defendant, etc.; and section 649 provides that a levy may be made by leaving and serving a copy of the warrant and notice, showing the property attached, with the person against whom the demand exists. Held, that the right of the holder of a tontine insurance policy to elect whether he will take the cash surrender value, an annuity, or paid-up policy, in settlement of his tontine policy, was neither a cause of action, a demand, nor property on which a lien could be acquired by attachment.</p>

Action by Ignatz Guttentag against Clark J. Whitney and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Action by M. Groh’s Sons against Julia A. Groh, executrix of John Groh. From a judgment in favor of defendant, and an order denying plaintiff’s motion for a new trial, plaintiff appeals.

<p>1. Judgment in Solido — Release of One Defendant — Liability of Debtor-Excessive Levy.</p> <p>A complaint alleged that defendant obtained against plaintiff and another, in the state of Louisiana, a judgment in solido, after which defendant released plaintiff’s co-debtor, but reserved his rights against plaintiff, and thereafter collected under execution against plaintiff more than plaintiff’s proportionate share of the judgment; and the complaint alleged that, under a certain statute of Louisiana, defendant was not entitled to recover more than plaintiff’s proportionate share, and that, by such statute, plaintiff could not enforce contribution from his co-debtor. Held, that the complaint was sufficient, without alleging the exhaustion of legal remedies against plaintiff’s co-debtor.</p> <p>2. Same — Defenses.</p> <p>Defendant could controvert the allegation that plaintiff was prevented from enforcing contribution from'his codefendant by the release granted.</p> <p>3. Same — Recovery of Excess.</p> <p>Rev. Civ. Code La. art. 2203, provides that where one of the co-debtors in solido is discharged by the creditor, who reserves his rights against the other, the creditor cannot recover from the other more than his proportionate share. A note owned by a citizen of New York was sued on in Louisiana, and a judgment in solido against the makers obtained.. The plaintiff discharged one of the makers, and, under an execution, collected from the other more than his proportionate share. Held, that the debtor not released might sue the plaintiff in the courts of New York to recover the excess over his proportionate share of the judgment.</p> <p>Van Brunt, P. J., and Patterson, J., dissenting.</p>

<p>Appeal from trial term, New York county.</p> <p>Action by the United Press against the A. S. Abell Company and others. From a judgment against defendant Felix Agnus, he appeals.</p>

Action by Armitage Mathews, as trustee in bankruptcy of the Clinton H. Smith Company, against Engelbert Hardt and others. From a judgment setting aside a transfer as fraudulent and constituting a preference, and appointing a referee to find the value of the property transferred (76 N. Y. Supp. 134), the defendants appeal.

<p>1. Default — Opening— Costs.</p> <p>On opening the default of a defendant at trial after answer, he should be required to pay the trial fee, term fee, and witness fees, to be taxed, in addition to §10 costs of motion.</p>

<p>Appeal from surrogate’s court, New York county.</p> <p>Accounting of the United States Trust Company of New York, as trustee under the will of Helena Rogers, deceased. From so much of the decree settling the account as directs the payment of one-third of the trust estate to John Ferndon Rogers, one of the beneficiaries of the trust, the trustee appeals.</p> <p>Helena Rogers died on the 13th day oí May, 1898, 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 Ferndon Rogers, 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: “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 21 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 disposing 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 rest, residue, and remainder of my said estate, with the accumulation of interest 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 said 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 interest 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 rest, residue, and remainder of my said estate, with the accumulations of interest 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 representatives of such children, .him surviving, per stirpes, and not per capita.” On March 27, 1902, John Ferndon 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 Ferndon Rogers one-third of the said estate. John Ferndon 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-tliird to John Ferndon Rogers. 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-tliird of the principal fund to John Ferndon Rogers. From so much of the decree so entered" as directs the payment of one-third of said estate to said John Ferndon Rogers-this appeal is taken.</p>

<p>Appeal from special term, New York county.</p> <p>Action by George H. McGuire, individually and as executor of the <mll of Mary McGuire, deceased, against John T. McGuire and others. From a judgment construing the will, defendants appeal.</p>

Action by Francis Morris against Edward R. Thomas and another. After an order granting leave.to the plaintiff to amend his complaint, he defaulted therein, and from a judgment dismissing the complaint, plaintiff appeals.

<p>1. Opening Default — Insufficient Answer.</p> <p>A motion to open default is properly denied; the answer accompanying the motion papers, and which was proposed to be served as a defense, being insufficient for that purpose.,</p> <p>2. Setting Aside Judgment.</p> <p>A denial of a motion to open a default is not a bar to a motion to set aside a judgment, based on facts not appearing before, and unknown to the moving party, and showing that plaintiff was not entitled to recover.</p> <p>3. Notes — Accommodation Indorsers — Fraudulent Diversion — Pleading.</p> <p>The fraudulent diversion of a note from, the purpose for which it was given is an1 affirmative defense, which accommodation indorsers sued thereon must plead.</p> <p>4. Same — Collateral for Antecedent Debt.</p> <p>The rule that, as against accommodation indorsers of a note fraudulently diverted from the purpose for which it was given, one receiving it as collateral security for an antecedent debt cannot enforce it, is not changed by Negotiable Instrument Law, § 51, providing that value is any consideration sufficient to support; a simple contract, and that an antecedent debt constitutes value. The antecedent debt must be paid and discharged by receipt of note to devest the accommodation indorsers of the defense.</p> <p>5. Same — Burden of Proof.</p> <p>Under Negotiable Instrument Law, § 98, providing that, when it appears that the title of any one person who has negotiated- a note was defective, the holder has the burden of proving that he, or some one under whom he claims, acquired title as a holder in due course, accommodation indorsers having shown that the note was diverted from the purpose for which it was given, the holder has such burden of proof.</p> <p>6. Same — Estoppel.</p> <p>Accommodation indorsers of a note are not estopped to assert the defense 'that it was diverted from the purpose for which it was issued, as against persons receiving it as collateral for an antecedent debt, by the certificate that the note was a genuine business note, given for value, and that there was no defense to it.</p>

Action by Giuseppe Zafarano against William P. Baird. From an order denying a motion for dismissal of the action on the ground that plaintiff had unreasonably neglected to prosecute it, defendant appeals.

<p>Appeal from Special Term, New York county.</p> <p>Action by Snow, Church & Co. against the Snow-Church Surety Company. From an order permitting examination of books, papers, etc., to enable plaintiff to frame its complaint, defendant appeals.</p>

Action by Leontine Suse against the Metropolitan Street Railway Company and another. From a judgment in favor of plaintiff, and from an order denying a new trial, the defendant railway company appeals.

<p>Appeal from Special Term, New York county.</p> <p>Action by Maurice A. Kraus against Lee A. Agnew. From an interlocutory judgment sustaining a demurrer to a defense in the answer, defendant appeals.</p>

Action by Charles S. Faulkner against John M. Cornell. From a judgment for plaintiff, and from an order denying a new trial, de- fendant appeals.

<p>1. Evidence — Examination of Party before Trial — Motion.</p> <p>Where the reason given for an application for the examination of the plaintiffs before trial is that the examination is necessary “to enable the defendant properly to prepare for the trial,” and it does not appear that he intends to use.the evidence on the trial, the application should be denied, though without prejudice to á renewal of the motion on sufficient grounds.</p>

<p>Appeal from surrogate’s court, Kings county.</p> <p>Final accounting of William E. Murphy, surviving executor of the will of Thomas Murphy, deceased. From an order overruling exceptions and settling the account, Rebecca O’Brien, administratrix of</p> <p>the estate of the widow of one of the legatees, appeals.</p>

Application by John B. McDonald for mandamus directed to Edward M. Grout, as comptroller of the city of New York. From an order denying the writ, the relator appeals. This application was for a mandamus to require the comptroller of the city of New York to draw and issue a warrant on the chamberlain of the said city for the sum of $400,000 as a payment on account of certain construction work on the Rapid Transit Railroad of the city of New York.

<p>1. Towns — Division—Prior Liabilities.</p> <p>Laws 1891, c. 239, provided that the expense of operating a state bridge should be borne by a certain town. This town was afterwards divided, and the act creating a new town from one of such parts provided that all special laws relating to the original town were repealed so far as they related to the new town to be created. Held, that the new town was free from liability for any part of the expense of .operating the bridge, incurred after the new city’s creation.</p> <p>3. Same — Statutory Provisions.</p> <p>Laws 1896, c. 459, providing for a proportionate division of the “debts owed by a town” on its division into separate municipalities, refers only to debts contracted at the time of the division, and does not render a new town liable to pay its proportionate share of the cost of work performed after the division and chargeable to the old municipality.</p>

Mortgage foreclosure by Lilly Herb against the Metropolitan Hospital & Dispensary of New York. From a judgment for plaintiff, defendant appeals. The action was brought for the foreclosure of a mortgage upon real estate upon which it was alleged in the complaint there was due and owing the sum of $2,000, and interest thereon at the rate of'5 per centum per annum from the 27th day of December, 1900.

<p>Appeal from Special Term, New York county.</p> <p>Action by Horace Russell and another, executors of and trustees under the will of Henry Hilton, deceased, against Edward B. Hilton and others. From the judgment (76 N. Y. Supp. 233), certain defend-</p> <p>ants appeal.</p> <p>The will is as follows:</p> <p>In the Name of 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 G. 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 H. 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 Edward 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 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 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, &c., 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. [Li. 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. Henry H. Rice, 54 West 37th St., N. Y. City.</p> <p>Robert G-. Smyth, Saratoga Springs, N. Y.</p> <p>Herbert Anstey, 218 West 139th St., N. Y. City.</p>

<p>1. Infants — Wrongful Death — Cabe Required — Instructions.</p> <p>Where, in an action for the negligent killing of- a boy, the court charged that the boy was required to exercise such care as a boy of his age and of good intelligence would exercise under like circumstances, and also such care as others in a like situation would exercise, an instruction that it was his duty to exercise such care as a boy of his age and of good intelligence would exercise under such circumstances, “and deem adequate thereto,” was not erroneous, as making the degree of care to be exercised depend on the operation of deceased’s mind.</p> <p>2. Same — Capacity of Infant.</p> <p>An infant over the age of 12 is presumed to be sui juris, and hence, in an action for his wrongful death by being struck by a street car, the same degree of care that is required of an adult should be required of him in the absence of proof as to his mental capacity.</p> <p>Van Brunt, P. J., and Ingraham, J., dissenting.</p>

<p>Appeal .from surrogate’s court, Kings county.</p> <p>In the matter of the transfer tax on the estate of William Scrimgeour, deceased. From an order of the surrogate’s court of Kings county (78 N. Y. Supp. 971) vacating a decree of that court assessing and fixing a tax on certain remainder interests passing by the will of the testator to his grandchildren, the Comptroller of the state of New York appeals.</p>

<p>1. Vicious Animals — Character—Knowledge of Owner — Sufficiency of Proof.</p> <p>It is sufficient proof that an owner knew of the vicious character of a bull confided by him, without warning, to the care of a party injured by . the animal, that the animal once attacked the owner, and he had to get. out of its way.</p> <p>2. Same — Master and Servant — Necessity op Relation.</p> <p>It is no defense to an action by one in possession of and working a farm on shares for injuries from a vicious bull confided, without warning, to his care by the owner of the land, that the relation of the parties was not that of master and servant.</p>

Proceedings by the city of New York to acquire land for the opening of a street, in which Rafael R. Govin appeared as an owner, claiming damages. From an order denying a motion to confirm a report of the commissioners of estimate and assessment, the city appeals.

Action by Edward H. Colell, as administrator of the estate of Cecile Colell, deceased, against the Delaware, Lackawanna & Western Railroad Company. From an order granting defendant leave to amend its answer, plaintiff appeals.

<p>Appeal from special term, Kings county.</p> <p>Action by William Fitzpatrick against Patrick Fox and another. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Special Term, New York county.</p> <p>Action by John Shanley against David M. Koehler. From a judgment for defendant, entered on a decision of the court at Special Term, plaintiff appeals.</p>

Action by the Guaranty Trust Company of New York against William J. Griffiths. From an order placing the action on the preferred calendar for trial, defendant appeals.

<p>1. Insurance — Recovery of Premiums Paid — Void Policy — Waiver of Invalidity.</p> <p>Where an agent, in preparing a policy on the life of a child, misstated a material fact, though he knew the real facts, and the mother, on learning of the misstatement, wrote, asking whether the policy would be paid, and the company’s reply, in effect, waived the misstatement, the policy was validated, and the mother could not recover the premiums paid.</p>

Certiorari by the people, on the relation of Peter B. Carney, against John J. Scannell, as commissioner of the fire department of the city of New York, to review relator’s dismissal from the department.

<p>1. Servant — Discharge—Grounds.</p> <p>Act of an employé in charging up regular hotel rates in his expense account, when he in fact paid only commercial rates, is ground for his discharge.</p> <p>3. Same — Time when Discovered.</p> <p>■Reason for the discharge of a servant, not known to the employer at the time, may nevertheless be relied on by him, if afterwards discovered, in defense to an action for damages.</p> <p>3. Irrelevant Evidence — Waiver on Objections.</p> <p>Objection to evidence as irrelevant, not made when the evidence is offered, is waived.</p>

Action by Ellen Hanlon against Samuel W. Ehrich and another. From a judgment for plaintiff and from an order denying a new trial, defendants appeal.

<p>Appeal from Special Term, New York county.</p> <p>Action by Helene Tremberger against Patrick J. Owens. From a judgment entered on a dismissal of the complaint after trial, plaintiff appeals.</p>

<p>1 Railroad Crossing— Threatened Collision — Negligence—Question fob Jury.</p> <p>A train approached a grade crossing of a street railway, through the thickly populated district of a village, around a curve where the view was obstructed. The engineer did not ring the bell or sound the whistle, but applied the brakes, so as to barely escape collision with a trolley car. A passenger on the trolley car jumped therefrom to avoid injury, and was -hurt. Held, that the question of the engineer's negligence was for the jury.</p> <p>3. Carriers — Railroad Crossing — Threatened Collision — Negligence — Question for Jury</p> <p>A trolley car approached a railroad crossing to within a couple of lengths, when the conductor got off and went forward, looking for trains. He motioned to the motorman to start, and after the car started, evidently becoming aware of an approaching train, motioned again to the motorman to stop, which the latter failed to do. The car crossed the track barely in time to avoid a collision. A passenger on the car jumped therefrom to avoid injury, and was hurt. Held, that the question of the carrier's negligence was for the jury.</p> <p>3. Same — Contributory Negligence.</p> <p>Evidence in an action by a passenger on a trolley car against the street car company and a railroad company owning an intersecting track, for’injuries occasioned by jumping from the street car to avoid a threatened collision with an approaching railroad train, considered, and held to render the question of the passenger’s contributory negligence one for the jury.</p>

<p>Appeal from municipal court.</p> <p>Action by Sigmund Samodwitz against Max Karpf. From a judgment for defendant, plaintiff appeals.</p>

<p>1. Administrators — Security for Costs.</p> <p>Where the complaint in an action by an administrator for the death of his decedent fails to state a cause of action, security for costs should be required.</p> <p>2. Servant — Negligent Death — Complaint—Sufficiency.</p> <p>A complaint, brought under Laws 1902, c. 600, to recover for the death of a servant, which fails to aver that notice of the injury was given the master as required by section 2, does not state a cause of action.</p>

Action by John M. Perry, as trustee for Samuel A. Skead, bankrupt, against Charles Booth and others. Judgment dismissing the complaint on the merits, and plaintiff appeals.

<p>Appeal from trial term, New York county.</p> <p>Action by Ephraim C. Force against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Trial Term, Kings county.</p> <p>Action by William H. James against the Metropolitan Street Railway Company. From a judgment for defendant, plaintiff appeals.</p>

<p>Appeal from municipal court, borough of Queens, Second District.</p> <p>Action by Ann E. Minclc against the New York & Queens County Railway.-Company. From a judgment on a verdict for plaintiff, defendant appeals.</p>

<p>1. Beneficial Association — Vested Rights — Change in By-Laws.</p> <p>A beneficial association may not, under the reserved power to amend and change its by-laws, by amending them to provide that not more than $2,000 shall be paid on any benefit certificate, take away the vested right of a member to whom a certificate providing for a death benefit of $5,000 has been issued, and who has paid assessments thereon, to continue his $5,000 certificate.</p> <p>8. Same — Breach of Contract — Waiver—Ratification—Estoppel.</p> <p>A-member of a beneficial association does not waive his rights, ratify the acts of the association, or estop himself to sue for a partial breach of its contract with him, where, having a certificate providing for a death benefit of $5,000, on which he has paid assessments, it amended its by-laws to provide that not more than $2,000 should be paid on any certificate, and refused to receive his subsequent assessments on the basis of a $5,000 benefit, whereupon he, under protest, paid assessments of two-fifths the amount, on a basis of a $2,000 benefit.</p>

<p>Appeal from Special Term, Orange county.</p> <p>Action by Catharine A. Griggs against Isaac Griggs. From a judgment in favor of the defendant and from an order denying a new trial, plaintiff appeals. Affirmed.</p>

<p>Appeal fr.om Special Term, Kings county.</p> <p>Application by the people, on the relation of Charles Schlivinski, by his guardian ad litem, for peremptory mandamus against William H. Maxwell, as city superintendent of schools of New York City. From an order denying the writ, applicant appeals. Affirmed.</p>

<p>Appeal from Trial Term, Kings county.</p> <p>Action by Louis A- Hornum against Donald McNeil and another. From a judgment in favor of plaintiff, defendants appeal. Affirmed..</p>

Action by Jacob Levy, as administrator of the goods, etc., of Antoni Prygon, against' the Grove Mills Paper Company. From an order dismissing the complaint and setting aside a verdict in favor of plaintiff, he appeals.

<p>Appeal from municipal court, borough of Brooklyn.</p> <p>Action by Christina Johnson against John J. Manning. From an order of a justice of the municipal court vacating a judgment against defendant, plaintiff appeals.</p>

<p>■Appeal from Special Term, Kings county.</p> <p>Suit by Ann O’Connor, as committee of the person and estate of Grace McLaughlin, an incompetent, against Pauline McLaughlin, individually and as executrix of Hugh McLaughlin, deceased. ■ From -an order appointing a referee to take the deposition of a witness, to be used on a motion for a new trial, appeals.</p>

Action by Thomas J. Dunn against the National Surety Company on a sheriffs indemnity bond. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

<p>1. Landlord and Tenant — Termination on Tenancy — Surrender—Acceptance.</p> <p>Defendant executed a lease for a year from September 1, 1901, and on April 5, 1902, after a heated conversation between plaintiff’s agent and defendant’s wife, the agent said to defendant: ' “Well, move. I am glad of it.” Some days thereafter, while defendant was still in possession, plaintiff’s agent posted a “To Let” sign on the premises without defendant’s consent; and thereafter defendant moved out, sending the key to the office of plaintiff’s agent. The lease authorized the lessor to post a “To Let” sign on any day within 90 days preceding the expiration of the term. Held, that such facts constituted an acceptance of the lessee’s surrender, and precluded the plaintiff from recovering rent for the remainder of the term.</p> <p>Hirschberg, J., dissenting.</p>

<p>Appeal from Trial Term, New York county.</p> <p>Action by Emma Huida Beil against the Supreme Lodge, Knights of Honor. From a judgment for plaintiff entered on a verdict, and from an order denying a motion for new trial, defendant appeals.</p>

Judicial settlement of the accounts of Elizabeth McCollum and another as executors of the will of Daniel McCollum, deceased. From the decree, Annie Monahan, as residuary legatee, appeals.

. Suit by John A. Magee and others against James M. Magee individually and as executor of the will of James Magee, deceased, and others. From a judgment for defendants, plaintiffs appeal. Affirmed.

Action by Joseph Priest against Valentine Gumprecht, Henry Freeman, and others. From a judgment for plaintiff, defendants Gumprecht and Freeman appeal. Affirmed. The action was brought to foreclose a first mortgage of $17,000 executed April 5, 1892, with interest payable semiannually at 5 per cent., on premises owned by the defendants Dora and Simon Stein.

Action by John Walsh against the New York Sz: Queens County Railway Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by August Belmont against the Sigua Iron Company. From an order vacating an attachment, plaintiff appeals. The warrant of attachment herein was granted on June 5, 1894.

<p>Appeal from Special Term, New York county.</p> <p>Action by Henry Meyer against the city of New York. From an order opening defendant’s default and allowing it to answer, plaintiff appeals.</p>

<p>1. Cemeteries — Public Burial Lots — Gravestones—Maintenance—Injuries to Pedestrians.</p> <p>A cemetery company set apart a “public lot” in its cemetery in which it conveyed by deed to plaintiff and others the privilege of interment. The only access to graves in such lot was by a path between the grave mounds; and while plaintiff, with his wife and child, was" visiting the grave of his deceased child, a gravestone erected in the lot fell on plaintiff’s child and injured her. The stone had been improperly erected, and the foreman of the cemetery testified that it was his duty to keep the stones in such lot lined up. Eeld, that the company was bound, to the exercise of ordinary care, to prevent the gravestones from falling, and was liable for the injury if by the exercise of such care it could have discovered and remedied the defect.</p> <p>Jenks, J., dissenting.</p>

<p>1. Appeal to Court op Appeals — When Allowed.</p> <p>Decision, in an action for injuries due to the fall of a dumb-waiter owing to a defective sustaining rope, that evidence showing a prior breaking of the same rope wa's admissible, and that the tenant using the rope was not guilty of contributory negligence, presented no distinctive features justifying allowance of appeal to the Court of Appeals.</p>

<p>Appeal from Special Term, New York county.</p> <p>Action by the American Audit Company against the Industrial Federation of America. From an order denying a motion to vacate an attachment, defendant appeals. Reversed.</p>

Two applications by John H. Brandt- — one for revocation of the letters testamentary of Herman Wischmann, as sole surviving executor of and trustee under the will of Henry J. Brandt, deceased; the other to compel him to give security for the proper administration of said estate. From a decree denying the first application the petitioner appeals, and from a decree granting the second application the ■executor appeals.

Action by William D. Clarke and another against Henry B. Heylman and another. From an interlocutory judgment overruling a demurrer to the answer of defendant Heylman, plaintiffs appeal. Reversed.

Action by Rosie Schooler, as administratrix, against the New York Central & Hudson River Railroad Company. From an order denying a motion for new trial after verdict for the plaintiff, defendant appeals. The action was commenced on the 20th day of August, 1901, to recover damages for the death of plaintiff’s intestate, alleged to have been caused through the negligence of the defendant.

Action by the Hartford National Bank against Bernhard Beineclce and Joseph Hesdorfer, impleaded with others. From the judgment entered on the report of a referee, the two defendants named appeal.

<p>Action by Frank E. O’Reilly and another, as executors of the will of Arthur J. Heaney, deceased, against C. Henry Platt, to enforce a contract for the sale of land. Submitted on agreed statement of facts. Judgment for defendant.</p>

Action by the Yorkville Bank against the Henry Zeltner Brewing Company. Judgment for plaintiff on default. William B. Sutherland, temporary receiver of the property oE defendant, moves to vacate the judgment. From an order denying the motion, the receiver appealed.

Proceedings instituted by the city of New York to acquire property for the opening of a street. From an order confirming the report of the commissioners of estimate and assessment, the city appeals. Reversed. ■

<p>1. Larceny — Grand and Petit — Information.</p> <p>Where the facts laid in an information warrant a charge of grand as well as of petit larceny, the defendant may be charged with and put on ■ trial for the lesser offense.</p> <p>2. Same — Misdemeanor—Jury Triad.</p> <p>The offense of petit larceny is a misdemeanor, and a defendant charged therewith is not entitled to a trial by jury.</p>

<p>Appeal from Special Term, New York county.</p> <p>Action by Donald Mitchell against John T. Williams. From a judgment in favor of plaintiff, defendant appeals.</p>

Habeas corpus, and certiorari in aid thereof, by the people, on the relation of Rosie Frank, against Katherine Bement Davis, as superintendent of the State Reformatory for Women at Bedford, and Leroy B. Crane, city magistrate; the same proceedings, on the relation of May Clark, against the keeper of the New York State Reformatory for Women at Bedford, and Leroy B. Crane, city magistrate; and the same proceedings by the people, on the relation of Mamie Smith, against the…

<p>1. Libel — Newspaper Publication — Complaint.</p> <p>A complaint for libel alleged that plaintiff was an officer of the Merchants’ & Manufacturers’ Board of Trade, and that defendant published in the same issue of its newspaper two letters, the first reciting: “Every New Yorker ought to paste up the names of those miserable trades people you mentioned, * * * and refuse to deal with them. * * * They ought to be hung.” Dated and signed, “Republican.” The second letter was a request to defendant for “a copy of the list of ‘merchants and manufacturers’ spoken of in the Evening Post of the 7th under the ‘Baggage Folly,’ ” after which defendant published a list of officers of such association, including plaintiff’s name. The complaint further alleged that defendant thereby meant to charge that plaintiff had been guilty of odious and reprehensible conduct. Held that, since evidence of no extrinsic fact would connect plaintiff with the statement in the first letter, and the publication contained nothing by which to identify plaintiff as the person spoken of, Code Civ. Proe. § 535, providing that in libel cases plaintiff might state generally that the matter was published ■ concerning him, did not apply.</p> <p>2. Same — Defective Complaint — Aider by Answer.</p> <p>Where an answer in an action for libel denied that the article referred to in the complaint was published concerning the plaintiff, the fact that it alleged as matter of privilege and justification that plaintiff, individually and as an officer of the Merchants’ & Manufacturers’ Board of Trade, had promoted odious treasury regulations, and that it therefore became defendant’s duty, as a conductor of a public journal, to denounce and expose such conduct, etc., and that plaintiff, as an officer of such association, in promoting and in boasting of promoting such legislation, was engaged in an odious and disgraceful business, and in the opinion of a large number of persons, including the correspondent who wrote the matter complained of, he had constituted himself a miserable person. did not constitute an admission that the publication referred to plaintiff.</p> <p>8. Same.</p> <p>Where an alleged libelous publication charged that there was a gang of blackmailers in an association of which plaintiff was an officer, but contained nothing tending to charge that plaintiff was a member of the gang, it was not libelous as to plaintiff.</p>

Application of Franklin J. Bischoff and others to vacate and set aside proceedings de lunático inquirendo against Franklin J. Bischoff. From an order (76 N. Y. Supp. 467) denying the application, the petitioners appeal. Reversed.

Action by William Moore against Taylor J. Eldridge. Judgment for defendant upon the decision of the court at Special Term dismissing plaintiff’s complaint, and plaintiff appeals.

<p>Appeal from Trial Term, Nassau County.</p> <p>Thomas Finucan was convicted of aiding and abetting a prize fight, ' and appeals.</p>

Action by Joseph Bachmann against the Paul Weidmann Brewing Company. From a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, it appeals.

<p>1. Carriers — Injuries to Passengers — Inadequate Damages.</p> <p>The flesh of one of plaintiff’s fingers was torn while he was attempting to alight from one of defendant’s trolley cars, by his finger ring catching in the handle bar of the car, which was started with a sudden jerk as he was attempting to alight. Plaintiff’s wound was very painful, and was dressed by a physician 20 or 2S times, for which plaintiff incurred a bill of $150 for medical services. Held, that a verdict for plaintiff for six cents damages was inadequate.</p> <p>3. Same — Inconsistent Statements.</p> <p>In an action for injuries to a passenger, his sworn statement that he was not thrown by the force of the car, but had a ring on the third finger of his left hand that got caught on the brass car handle, lacerating the finger, was not inconsistent with his claim at the trial that the sudden forward movement of the car caused the laceration of his finger.</p> <p>Woodward. J., dissenting.</p>

<p>Appeal from Kings County Court.</p> <p>Action by Amelia Komitsch against William A. De Groot, as executor of Cornelius Dod, deceased, and another. From a judgment for defendants entered on a dismissal of the complaint on the merits, and from an order denying a motion for a new trial, plaintiff appeals.</p>

<p>1. Wills — Construction—Vested Interests — Alteration—Mortgage.</p> <p>Where testator devised to his son certain real estate during his natural life, and “at his death to his children,” the word “at” designated the time of enjoyment merely, and not the time of the vesting of the estate; and hence the grandchildren acquired vested interests immediately on their birth, which they could alienate by mortgage or otherwise.</p> <p>8. Same — Devise to Class — Tenants in Common.</p> <p>Where a will devised land to testator’s son for life, and at his death “to his children,” the “children” took distributively as tenants in common, and not as a class.</p> <p>Van Brunt, P. J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, First District.</p> <p>Action by John J. Kelly against Henry Otterstedt. From a judgment in favor of plaintiff, defendant appeals.</p>

Action by Charles H. Ivison against David B. Ivison and others. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>1. Erection of Buildings — Loan by Owner — Order on Lender — Suit by Payee — Sufficiency of Evidence.</p> <p>The owner of buildings in process of erection applied to a broker' for a loan in installments, and it was claimed that a contract was made for the loan with defendant. Afterwards, the owner and the defendant made a written contract for a larger loan, making no provisions for stated payments, and providing that on the happening of certain events defendant should be relieved from obligation to make further advances. The owner gave plaintiff an order on defendant, to be paid in various amounts as the work progressed. The order was filed with the county clerk, Laws 1896, p. 995, c. 915, providing that no assignment of any moneys due or to become due for labor or materials, or any order drawn by any contractor or subcontractor for the payment thereof, shall have any force until such assignment or order shall be filed with the county clerk. It did not appear that the terms of the contract, imposing an obligation on defendant to continue the advances, had been fulfilled, and the evidence was conflicting as to whether defendant had any notice of the order. SrM-, in a suit on the order, that the complaint was properly dismissed, it not showing any definite fund on which the order was drawn, or any notice thereof to the defendant.</p> <p>9. Same — Effect of Filing Order.</p> <p>The filing of the order or a copy with the county clerk did not constitute notice to defendant, he not being the owner of the premises.</p> <p>3. Same.</p> <p>Laws 1896, p. 995, c. 915, did not relate to one in defendant’s position, whose rights were fixed by a written contract with the owner.</p> <p>4. Same — Effect of Written Contract.</p> <p>The written contract between the owner and defendant superseded any oral contract made through the broker, and was controlling in the case.</p>

Action by .Arthur S. Willdigg, as administrator of the estate of Edward Mooring, deceased, against Edward M. Knox. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Trial — 1Transfer to Special Term — Laches.</p> <p>Where an action has been noted for trial, and has been once tried, plaintiff’s right, after two years’ delay, to have the equitable issues raised by the answer sent to Special Term, is lost by loches.</p>

<p>Appeal from Special Term.</p> <p>Action by Sarah M. Orvis, as executrix of the estate of Thomas Storm, deceased, against the National Commerical Bank of New York and another. Defendants appeal from an order continuing an injunction during pendency of action. Affirmed.</p>

<p>Appeal from Special Term, Westchester county.</p> <p>Action by Hannah J. Culver against the city of Yonkers. From a judgment in favor of the plaintiff, defendant appeals.</p>

Action by Anna L. Leach, as administratrix of the estate of Clarence E. Leach, deceased, against the Central New York Telephone & Telegraph Company, for wrongful death of plaintiff’s intestate. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Thomas F. Fitzhugh Lee against Cyrus V. Washburn and another. From an interlocutory judgment in favor of plaintiff, defendants appeal. Reversed.</p>

Action by Louis E. ICuster against the Press Publishing Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.' Reversed. See 75 N. Y. Supp. 1127.

<p>Appeal from Trial Term, New York County.</p> <p>Action by Alphonse Thourot against Louis Holub and another. From a judgment for defendants, and from an order denying plaintiff’s motion for a new trial, he appeals. Reversed, and new trial ordered.</p> <p>The plaintiff was the owner of a one-third interest in letters patent of the United States No. 665,753, issued on the 8th day of January, 1901, for an attachment for silk looms, known as the “Jacquand Machines,” and on the 17th day of July, 1901, he and the defendants entered into an agreement in writing under their hands and seals, by which the plaintiff agreed to sell to the defendants, and they agreed to buy, his said interest “for the sum of two thousand dollars in manner following; nine hundred and seventy-five dollars to be paid upon the signing of these articles of agreement, and in lieu of cash said Alphonse Thourot agrees to take 25 silk looms at the rate of $39 each, altogether $975, the balance of one thousand and twenty-five dollars to be paid by said Louis Holub and Paul Dusha and accepted by said Alphonse Thourot when said Jacquand machine is put on the market ready for sale, on the same conditions, to wit, in lieu of cash, said Alphonse Thourot agrees to take machinery silk looms or Jacquand machines.” The defendants elected to manufacture and deliver to the plaintiff the 25 silk looms instead of the cash payment of $975. The patterns for the manufacture of these looms were delivered to the defendants, who manufactured the looms pursuant thereto. After the looms had been manufactured, the plaintiff, at the factory of the defendants, demanded delivery thereof to him, which the defendants refused unless the plaintiff would first execute and deliver to them a formal assignment of his said interest in the patent sufficient to pass title thereto under the statute of the United States. The plaintiff declined to deliver such assignment until he was fully paid the $2,000, or the equivalent therefor, provided in the contract. The plaintiff testified that at the time of the execution of the agreement he exhibited an assignment of his interest in the patent to the defendants, duly executed under his hand and seal and witnessed, and informed them, in substance, that it would be delivered to them when he was fully paid. This the defendants deny. They had an assignment, somewhat different in form, but in effect substantially the same, prepared by their attorneys, which they presented to him for execution at the time he demanded the first 25 looms. This he refused to execute until the purchase price was fully paid. Both parties were permitted without objection or exception to testify as to what was said at the time of the execution of the agreement concerning the delivery of an assignment, the plaintiff claiming that the understanding was that the assignment was not to be delivered until he was fully paid, and the defendants claiming, in effect, that they were to receive the assignment at the time of making the first payment. No motion for a nonsuit was made, and neither party requested the direction of a verdict. Counsel did not sum up, and the court submitted the question to the jury as to whether the plaintiff had fully performed the contract on his part, and said to the jury, in substance, that the contention on the part of the plaintiff was that he tendered the assignment, and on the part of the defendants that he did not, but left it to the jury to act upon their own recollection of evidence. No exception was taken to the charge, or to any refusal to further instruct the jury. The verdict was for the defendants, and the plaintiff moved for a new trial on the ground that it was against the evidence and the weight of the evidence, ¿nd contrary to law.</p>

Lawrence County. Action by Charles H. Turner against H. K. Baldwin and others, and an action by Jessie C. Moore against Charles H. Turner and others.

<p>Action by the Balch Bros. & West Company against Myrtilla Wells.</p>

<p>Action by Edward F. Barry against the Metropolitan Street Railway Company. B. H. Ames, for appellant. G. W. Smith, for respondent.</p>

<p>Action by R. E. Beckham, as receiver, against James D. Hague. J. L. Cadwalader, for appellant. C. H. Blair, for respondent.</p>

<p>Action by -Morris Breskey against William Prodie.</p>

<p>Actions by Hannah F. Benjamin and Hannah Amelia Terry against the American Fire Insurance Company of Philadelphia and John M. Diven, against the Insurance Company of North America and John M. Diven, and against the Greenwich Insurance Company of the City of New York and John M. Diven.</p>

<p>Action by Katherine M. L. Brasher against the Brooklyn Heights Railroad Company.</p>

<p>Action by the Citizens’ Permanent Savings & Loan Association against Charles W. Rampe.</p>

<p>Action by John Clemens against the American Fire Insurance Company of Philadelphia, Pa.</p>

<p>In the matter of the application of Spencer Clinton and another, as, etc., against Adam Boeekel, treasurer of the city of Buffalo, N. Y.</p>

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

<p>Action by John Fuller against Edward B. Mitchell.</p>

<p>Action by Porter M. French against the city of Rochester.</p>

<p>In the matter of the application for letters of administration on the goods, chattels, and credits of James A. Gilchrist, deceased.</p>

<p>Action by Joseph Gretschel against Bertha Volkening.</p>

<p>Action by J. Warren Greene against Charles H. Knox and others.</p>

<p>Action by Harris Goldberg against Reuben London and another. From an order amending plaintiff’s summons herein, defendants appeal. Modified. O. C. Bernheimer, for appellants. A. H. Sarasobn, for respondent.</p>

<p>Action by Myron E. Goluback against Gerardo D. Almodo.</p>

<p>Action by Francis J. Groarke, an infant, against George Laemmle. S. R. Taylor, for appellant. D. Berier, for respondent.</p>

<p>Action by Mary A. Bleiggs against Raymond Hoagland. From a judgment for plaintiff, defendant appeals. Reversed. James G. Bergen, for appellant. Henry L. Bogert, for respondent.</p>

<p>Action by the Mutual Loan Association against Joseph S. Lesser and another. From an order allowing defendant Joseph S. Lesser to serve an amended answer, plaintiff appeals. Reversed. See 78 N. Y. Supp. 629. Franklin Pierce, for appellant. Herbert R. Limburger, for respondent.</p>

<p>Action by John D. Moore against the Monumental Mutual Life Insurance Company. J. W. Welsh, for appellant. W. Blaikie, for respondent.</p>

<p>Proceeding by the people of the state of New York, on the relation of the New Amsterdam Gas Company, against George E. Priest, J. Edgar Leaycraft, and Lester F. Stearns, composing and constituting the State Board of Tax Commissioners of the State of New York.</p>

Proceeding by the people of the state of New York, on the relation of Francis M. Rutherford, against Perex M. Stewart, as superintendent, etc. W. B. Crowell, for appellant. A. S. Gilbert, for respondent.

<p>Separate proceedings by the people of the state of New York, on the relation, respectively, of John M. Harding, of Alexander Neal, of Michael J. Sims, and of William H. Wills, against William Miller Collier and others, constituting the State Civil Service Commission.</p>

<p>Action by Victor A. Seggerman against the Metropolitan Street Railway Company. A. Ofner, for respondent.</p>

<p>Action by Barbara Schmarder against Charles W. Mix.</p>

<p>Action by Jesse Streets against the Grand Trunk Railway Company of Canada and the New York Central & Hudson River Railroad Company.</p>

<p>Action by Arthur T. Stoutenburgh, as temporary receiver, etc., against Bush Company, Limited. (Actions Nos. 1 and 2).</p>

<p>Action by George R. Sutherland against Charles H. Mead and Thomas Taft, impleaded. From an order denying a motion to open a default, defendants Mead and Taft appeal. Affirmed. A. H. F. Seeger, for appellants. Edward Hassett, for respondent.</p>

<p>In the matter of Edward D. Sugden against John N. Partridge, commissioner. W. C. De Witt, for appellant. T. Connoly, for respondent.</p>

<p>Action by Emanuel Steinhardt and another against David Bingham and another. Plaintiffs move for new trial on exceptions ordered to be heard in the first instance at the Appellate Division. New trial. A Blumenstiel, for plaintiffs. Jacob F. Miller, for defendants.</p>

<p>Action by Oakes Tirrill against Edward D. Sniffen, the North American Trust Company, appellant, and the Washington Life Insurance Company, defendant.</p>

<p>Action by Melle S. T. Werner against William R. Hearst.</p>