Volume 81 — New York Supplement

<p>Dissenting opinion.</p>

<p>Appeal from St. Lawrence County Court.</p> <p>Action by Barney Smith against Maria Castle. From a judgment of the County Court affirming a judgment of the Justice’s Court for plaintiff, defendant appeals.</p> <p>Defendant was the owner of a farm which was rented for a money rent to the plaintiff. The milk from said farm was taken to a creamery upon the agreement that the pay for said milk should be given to the defendant, who would be responsible to the plaintiff for any sum paid thereupon in excess of the rental agreed upon. This action was brought to recover the sum of $29.36, claimed to be a balance due from the proceeds of the creamery over and above the rental agreed upon, and also for some milk which the plaintiff sold to the defendant, as well as for certain other charges for which the plaintiff claimed the defendant had become indebted to him. The answer of the defendant denies substantially the allegations of the complaint, and sets up a- counterclaim for money loaned, for potatoes sold, for a churn loaned, for a calf sold, and for failure to perform the covenants of the lease in reference to plowing up certain lands, and for other damages claimed to have been suffered by the fault of the plaintiff. The case was brought to trial, and upon the trial the justice of the peace awarded judgment for $30 to the plaintiff.</p>

<p>Appeal from Surrogate’s Court, New York County.</p> <p>In the matter of the settlement of the account of Thomas A. Maitland, trustee of Sarah Parish Dillon, deceased. From a decree surcharging his account on final settlement, he appeals.</p>

In the matter of the application of the city of New York to acquire lands for opening noth street. From an order confirming the report of the commissioners and awarding damages to Philip Dietrich, J. Sergeant Cram and another, as trustees under the will of Henry A. Cram, deceased, appeal.

<p>Appeal from Special Term, Nassau County.</p> <p>Action by Henrietta Prinz against the Citizens’ Insurance Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Action by Beatrice Halloran against the Coney Island Jockey Club. Motion to set aside a written complaint, served after the action had been removed from the municipal court.</p>

<p>Appeal from Special Term, Broome County,</p> <p>Action by George L. Page against the president, managers and company of the Delaware & Hudson Canal Company. From an order denying plaintiff’s motion to amend his complaint, he appeals.</p>

<p>1. Disbarment—Petition—Specifications—Sufficiency.</p> <p>Where the petition in disbarment proceedings is unsigned, and not verified in accordance with the statute, and the attached papers intended as specifications are not referred to in the petition, and are improperly numbered and verified, the proceeding will be dismissed.</p>

Action by William Wolf against the Metropolitan Street Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Annie Tenoza, as administratrix of the goods, chattels, and credits of Albert Tenoza, deceased, against Stanley Golliek and others. From an order setting aside a dismissal of the complaint as to them, and an order' granting a new trial, defendants Golliek and Smith appeal.

<p>Appeal from Trial Term, New York County.</p> <p>Action by the Associazione Fraterna Italiana against Giovanni Battista Gobbi. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

Proceedings .for the appraisal of damages for the construction of Ft. Washington Ridge Road. From an order of the Special Term denying a motion by certain property owners to set aside the report of the commissioners, and to send the proceeding back to new commissioners to be appointed, such owners appeal.

<p>1. Husband and Wipe—Separation—Purchases by Wipe—Necessaries—Provision by Husband.</p> <p>Where a husband and wife are living apart, no implied agency exists, sufficient to bind the husband for purchases of necessaries made by the wife.</p> <p>2. Same—Burden op Proop.</p> <p>In an action to recover from a husband for necessaries purchased by his wife while they were living apart, the burden is on the plaintiff to show that defendant did not suitably provide- for his family according to his condition.</p> <p>3. Same—Evidence.</p> <p>Where a wife left her husband against his protest, for an insufficient reason, and he furnished her with money for support until all his efforts to induce her to return proved unavailing, he was not liable for necessaries subsequently furnished her.</p>

<p>1. Partition and Accounting for Rents—Counterclaim.</p> <p>Under Code Civ. Proc. § 501, providing that a counterclaim must be a cause of action arising out of the transaction set out in the complaint, or connected with the subject-matter of the action, an answer in an action for partition and an accounting of rents received from the property by defendant, alleging that plaintiff was the son, and defendant the wife, of the person who died seised of the land described in the complaint and of much other real property, and that plaintiff was an infant and resided with defendant, and that she did not have sufficient means of her own to support and educate him, and therefore expended for that purpose a certain amount of his property, does not state a good counterclaim; it not showing that the property expended was derived from the rents of real estate sought to be partitioned. .</p> <p>2. Same.</p> <p>A claim for a share of rents of other property, which, with that described in the complaint, was inherited by the parties from their father and husband, is not a good counterclaim to a complaint for partition of certain real estate, and an accounting for the rents thereof; Code Civ. Proc. § 501, requiring a counterclaim to be a cause of action arising out of the transaction set out in the complaint, or connected with the subject-matter of the action.</p> <p>8. Guardian—Use of Ward’s Property—Allowance.</p> <p>Though a mother, with whom her infant son lived after the death of her husband and his father, did not apply to the court for permission, as she should, before using, as his guardian in socage, property of his for : Jiis support and education—she not having sufficient means of her own—: yet she may be allowed therefor in an action by him against her for an accounting.</p>

<p>1. Corporation—Voluntary Dissolution—Order to Show Cause—Return Day—Amendment Nunc pro Tunc.</p> <p>Code Civ. Proc. § 723, authorizes the court, in furtherance of justice, to amend any process by correcting a mistake or inserting a material allegation; and section 724 authorizes it at any time within one year to supply any omission in any proceeding. In proceedings for the voluntary dissolution of a corporation, a creditor was served with a copy of the order to show cause, in which a certain return day was specified. On the day named he made a general appearance, and then discovered that the original order was without a return day, and moved to dismiss the proceeding. Held, that an amendment nunc pro tune inserting the return day contained in the copy was properly allowed by the court.</p> <p>Van Brunt, P. J., dissenting.</p>

<p>1. Testimony to be Used in Another State—Issuing Subpcena.</p> <p>Under Code Civ. Proe. § 914, providing that a party to an action pending in another state may, in the manner prescribed, obtain the testimony of a witness in New York, to be used in the action, and section 915, providing that the court shall issue a subpoena to the witness where a commission to take testimony within the state has been issued by the court in which the action is pending, there is no authority to issue the subpoena; there being nothing in the commission or the application or order-therefor showing it was contemplated the commission should be executed in New York or outside the state in which the action was pending.</p>

Proceeding for the appraisal of the assets of the estate of Stephen C. Dimon, deceased, for the assessment of a transfer tax. From a surrogate’s order affirming an assessment, Frederick D. Phillips appeals

<p>Appeal from Special Term, New York County.</p> <p>Action by Frederick E. Haynes against Edward F. Foley. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Mechanic’s Lien—Erroneous Judgment—Vacation—Appeal.</p> <p>Where, in an action to foreclose a mechanic’s lien, a money judgment was erroneously entered against one defendant, which was not authorized by the decision of the court, defendant’s remedy was by motion addressed to the special term to strike out the same, and not by appeal.</p>

Proceeding for the appraisal of the property of David Wolfe Bishop, deceased, for the confirmation of a transfer tax. From an order (81 N. Y. Supp. 252), directing Cortlandt F. Bishop, executor of decedent’s estate, to answer certain questions to be propounded by the appraiser, he appeals.

<p>Action by Bernard Yeamans against John W. T. Nichols. On motion by plaintiff for an award of treble damages."</p>

Suit by William E. Kells, as an executor of the last will of Thomas Kells, deceased, against the People’s Trust Company, as general guardian of Thomas Kells, an infant, and others, to restrain defendants from commencing proceedings to compel an accounting by plaintiff. Erom a judgment sustaining a demurrer to the complaint, plaintiff appeals.

<p>1. Eminent Domain—Damages—Costs.</p> <p>Code Civ. Proc. § 3372 (Condemnation Law), provides that, if the compensation awarded by the commissioner exceeds plaintiff’s offer, the court shall, in the final order, direct that defendant recover of plaintiff costs of the proceeding as allowed in the Supreme Court, including allowances for proceedings “before and after notice of trial.” Held, that the trial spoken of is the one before the appointment of commissioners, and a landowner awarded more than plaintiff’s offer is not entitled to costs in the proceedings before the commissioner, as though a trial had been had.</p>

<p>1. Conversion—Receipts—Evidence op Value.</p> <p>Where, in an action for the conversion of a receipt for money deposited in the police department in payment for a concert license, the receipt recited that $150 had been deposited, which would be returned on application to the chief clerk if the license was not granted, and it was proved that the money would be refunded to any person who presented the receipt, the face of the receipt was prima facie evidence of its value.</p> <p>2. Same—Dismissal op Action—Reinstatement.</p> <p>In an action for conversion of a police receipt, against defendant and his wife, the action was dismissed as to the wife, at the close of plaintiff’s testimony, for failure to show possession in or demand from her. Later in the trial, during the examination of defendant, it was disclosed that the receipt was in the possession of the wife, whereupon plaintiff was allowed to reinstate her as one of the defendants; and she, being called, testified that she had the receipt, and .that she was keeping it as security for a loan to plaintiff, whereupon judgment was entered against her. Held that, the action having once been dismissed as against the wife, the court had no jurisdiction to reinstate the same as to her, or render judgment against her.</p> <p>8, Same—Municipal Court—Appeal—Weight op Evidence—Review.</p> <p>Under Code Civ. Proc. § 3063, as amended by Laws 1900, c. 553, authorizing the Appellate Division to review the judgment of a Municipal Court, and reverse it because against the weight of evidence, the Appellate Division has the same power to review the facts in a case tried in a Municipal Court as it has to review judgments rendered by the Supreme Court.</p> <p>4, Same—Evidence.</p> <p>Plaintiff, when he obtained a police receipt for money deposited for a concert license, falsely represented to the police department that he was the owner of the liquor tax certificate at the hotel at which the concerts were to be given, which was necessary to entitle him to the license. In an action against defendant and her husband for conversion of the receipt, plaintiff testified that he delivered the receipt to defendant, and had demanded its return from him. Plaintiff’s testimony was uncorroborated, and both defendant and his wife testified that the receipt was never delivered to defendant, but that plaintiff handed it to defendant’s wife, who had ever since had control thereof, and that plaintiff never made any demand on the husband for the receipt. Held, that a judgment against defendant was contrary to the weight of evidence.</p>

Action by Willard A. Esselsteyn against the Union Surety & Guaranty Company. From an order taxing the bill for poundage fees of the sheriff of the county of New York, and directing payment by defendant to said sheriff of the amount taxed, defendant appeals.

Action by Wilhelmine Fuhr against Timothy T. Cronin and others. From a judgment entered on the dismissal of the complaint on the merits, and directing specific performance on the counterclaim, plaintiff appeals.

<p>Appeal from Special Term, Kings County.</p> <p>Action by Mary Mclnerney against Thomas F. Main and others. From an order sustaining a demurrer to the complaint, and from an interlocutory judgment entered thereon, plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by Rudolph Thieme against William Henderson. From a judgment for defendant, plaintiff appeals.</p>

Action for personal injuries by William C. Thornton against Charles W. Hogan and Jefferson Hogan, doing business as partners under the firm name of T. Hogan & Sons, and the Commercial Lighterage Company. Judgment against 'the defendants Hogan, and they appeal.

Action by John E. Adams against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Action by the Sanford Dairy Company against Milton L. Sanford-From an order granting plaintiff an injunction during the pendency of the action, defendant appeals.

Action for partition by Ellsworth C. Smith against Amos S. Chesebrough and others, impleaded with William Cranstoun, as executor of and trustee under the will of Nicholas H. Chesebrough, deceased. From an interlocutory judgment in favor of plaintiff, the executor appeals.

Action by Mary A. O’Reilly, as administratrix of Peter F. O’Reilly, deceased, against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Special Term, Kings County.</p> <p>Suit by Mamie Miller against Margaret Maujer and others. From a judgment sustaining demurrers to plaintiff’s complaint, she appeals.</p>

Action by Susie Link against the city of New York. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Mandamus by the people of the state of New York, on the relation of William Nelson, against Isaac M. Marsh and others, drainage commissioners, and others. From a final order, after a directed' verdict, refusing a peremptory writ and dismissing the proceedings on the merits, and from the order directing the verdict and another denying a motion for a new trial, relator appeals.

<p>On reargument.</p>

<p>Appeal from Municipal Court of City of New York.</p> <p>Action by Sam Saffier against Norman S. Dike, as sheriff of Kings county. From a judgment of the Municipal Court dismissing the complaint, plaintiff appeals.</p>

Action by Harriet R. Mead against Washington Brockner and others. From so much of a judgment of foreclosure and sale as directs a sale of that part of the mortgaged premises which is situated in the state of Connecticut and also directs a conveyance of such portion by the mortgagors to the purchaser, defendant Brockner appeals.

<p>1. Contract—Consideration—Legality.</p> <p>A contract to train horses in consideration in part of a per cent, of the purses won by them was not illegal, in that it gave a person other than the owner a pecuniary interest in such purses, contrary to Laws 1895, e. 570, enacted in pursuance of Const, art. 1, § 9, prohibiting the authorization of any kind of gambling, which provides in section 3 that horse-racing associations may hold races for purses, but that no person other than the owner shall have any pecuniary interest in such purses.</p> <p>2. Same—Separableness.</p> <p>A contract to train horses for $100 a month and 10 per cent, of the purses won is separable, so as to support an attachment, even though the provision as to the payment of a per cent, of the purses is illegal.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Benjamin Ramell against John Duffy, as treasurer of Court Sympathy, No. 83, Foresters of America. Judgment for plaintiff, and defendant appeals.</p>

Action by Cornelia J. Kellum and another against the Mission of the Immaculate Virgin for the Protection of Homeless and Destitute Children. From a judgment for plaintiffs, defendant appeals.

In the matter of the last will of Anna M. Gordon, deceased. From a decree of the surrogate construing the will, Thomas H. Gordon appeals.

Action by Morris B. Liederman against William Rovner to foreclose a lien on personal property. Judgment for plaintiff, and from so much thereof as directs execution against defendant’s person defendant appeals.

<p>Appeal from Trial Term, Rockland County. Action by Theodore F. Reed against Jedediah K. Hayward. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Appeal from Municipal Court of New York. "■</p> <p>Action by Minnie Comerford against Annie P. Smith. From a judgment of the Municipal Court in favor of plaintiff, defendant appeals.</p>

<p>1. Servants—Injuries—Negligence—Res Ipsa Loquitur.</p> <p>A servant on a ship, and injured by the fall of a Burton spar—a ■contrivance used in unloading—cannot recover on the ground of res ipso loquitur where there is no evidence tending to show any defect in contrivance or material, lack of inspection, or failure to furnish abundant and suitable materials for selection, or the failure to supply competent and skillful workmen, while, on the other hand, there is evidence that there was no defect, that there was daily inspection, and that plenty of materials were sent out after due inspection by the master.</p>

<p>Appeal from Trial Term, Westchester County.</p> <p>Action by Samuel Koren against the National Conduit & Cable Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Herbert F. Hoelter against John B. McDonald and another. From a judgment for plaintiff, and from an order denying a motion for a new trial on the minutes, defendants appeal.</p>

<p>1. Waters—Riparian Owners.</p> <p>The impounding of all the waters "of a stream by an upper proprietor for ornamental purposes is unreasonable and unlawful.</p>

<p>Submission of controversy between the Travelers’ Insurance Company and Mark D. Stiles and another. Judgment for plaintiff.</p>

Action by Alfred ICochman against Morris Hefter and another-From an order of the City Court of New York, made at a Special Term, resettling the taxation of costs made by the clerk of said court,, plaintiff appeals.

<p>1. Judgment—Setting Aside—Laches.</p> <p>In an action to enjoin defendant from interfering with plaintiff’s possession of a building under a lease, in which notice of lis pendens was filed, plaintiff had judgment. Thereafter defendant deeded the property to a third party. Afterwards plaintiff served on defendant’s attorney a petition setting up that by defendant’s conduct the right to sell liquor on the premises had been lost, and asking an order of reference to determine the damages. This order was granted. Notice of the proceedings before the referee was served on defendant’s attorneys. The referee reported the sum which plaintiff was entitled to recover, and also that he was entitled to have the interest which defendant had in the premises as of the date of the lis pendens sold in payment thereof. Notice of application to confirm the report was given defendant’s attorney, but not to the third party. It appeared, however, that the latter knew of the report. The report was confirmed, and judgment entered against defendant for the amount reported, and adjudging that his interest in the premises as of the date of the lis pendens be sold. Held, that the third party, having permitted the report to be confirmed without opposition, though he had knowledge of it, was not entitled to have the judgment vacated.</p> <p>2. Same—Relief Granted.</p> <p>It appeared that defendant had appealed from the judgment, and that the appeal was pending. Held proper to permit the third party to be made a party to the action, and allow him to prosecute the appeal.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Ignatz Guttentag against Clark J. Whitney and another. "From an order allowing defendants to amend their answers, plaintiff appeals.</p>

Action by William F. Majory against John Schubert and others. From a judgment for plaintiff, entered after trial at the special term, against certain defendants, they appeal.

Action by Mary Madigan, administratrix, against the Oceanic Steam Navigation Company. From an order setting aside the verdict for plaintiff and granting a new trial, plaintiff appeals.

<p>Appeal from Judgment on Report of Referee.</p> <p>Action by James N. Stout against the Security Trust & Life Insurance Company. From a judgment for plaintiff entered on the report of a referee, defendant appeals.</p>

In the matter of the application of the administrators of the goods, etc., of George F. Gilman, deceased, for leave to compromise with George H. Hartford their respective claims to the business known as the Great Atlantic & Pacific Tea Company and the Great American. Tea Company. From an order of the surrogate of the county of New York (8o N. Y. Supp. 1122) denying the application, plaintiffs appeal.

<p>Submission of controversy between James Buclchout and the city of New York. Judgment for defendant.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by Nathan Metz against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Note—Consideration—Renewal.</p> <p>Where a note is given for an adequate consideration, no new or additional consideration is necessary to give validity to a renewal note.</p> <p>2. Same—Transfer after Maturity—Defenses.</p> <p>The fact that a valid note is transferred after maturity and without consideration is no defense to an action thereon.</p> <p>3. Same—Holding up Execution—Collateral Security.</p> <p>A sheriff agreed to hold up an execution on personal property in consideration of a note given him by one not a party to the action, payable in three months, and guarantied by the judgment debtor. Eeli, that the note was not a collateral security for the payment of the execution, but an independent obligation.</p> <p>4. Same—Transfer—Ratification—Estoppel.</p> <p>With the knowledge and consent of the judgment creditor’s attorney, a' sheriff agreed to hold up an execution in consideration of a note given by one not a party to the action, and guarantied by the judgment debtor. The sheriff afterwards transferred it to such attorney. Eeld, that the judgment creditor, having made no disclaimer, would be presumed to have had knowledge of, and to have acquiesced in, all that took place, including the transfer of the note.</p>

Action by the Security Trust & Life Insurance Company against the St. James Company. From a judgment in favor of plaintiff, defendant appeals. The action was brought to recover $42,749.10 alleged to have been loaned-by the plaintiff to the defendant on or about July 11, 1900, and by consent a reference was ordered.

Action by William H. McWhirter against Abner T. Bowen and others. From an interlocutory judgment ordering an accounting, defendant Bowen and certain other defendants appeal.

Action for personal injuries by Stewart W. MacKenzie against the Union Railway Company of New York City and another. From a judgment dismissing the complaint as to the Union Railway Company, plaintiff appeals.

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

Action by Rina F. Brown against the Manhattan Railway Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Action by John J. Fallon against’ Robert J. Wright. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

<p>Appeal from Surrogate’s Court, New York County.</p> <p>In the matter of the transfer tax on the property transferred and appointed by the will of Laura Astor Delano, deceased. From an order denying a motion to dismiss the proceedings so far as they relate to Arthur Astor Carey, he appeals.</p> <p>This proceeding was brought to appraise and assess for the purpose of taxation, under the act relating to taxable transfers (chapter 908, p. 795, Laws 1896, as amended by chapter 284, p. 150, Laws 1897), the property of Laura Astor Delano, who died June 15, 1902, leaving a last will and testament, and Arthur Astor Delano was notified to appear therein. His attorneys gave notice of appearance in his behalf, but only for the purpose of objecting to the jurisdiction of the Surrogate’s Court, and applied to the surrogate to dismiss the proceeding as to him, and as to certain property mentioned in two deeds, one dated September 30, 1848, and the other September 6, 1849, made by William B. Astor, giving to his daughter Laura Astor Delano, the testatrix, a power of appointment, which power she exercised in her will in favor of the said Arthur Astor Carey. The basis of the application was that the surrogate had no jurisdiction over the property in question, and annexed to the affidavit of the attorneys were the two deeds mentioned. By the first of these deeds, given in 1848, 26 years before his death, William B. Astor (and Bis wife) conveyed certain real estate to Laura Astor Delano for her life, conditions being therein stated upon the happening of which her estate should cease and determine, and other conditions being included disposing of the property to certain persons named upon her death. The deed then continues: “Provided, however, and power is hereby granted unto the said Laura, in her discretion, to give the said land and premises, or any share or part thereof, to and amongst her said issue, brothers, sister Alida, or their issue (the same persons to whom it would by the deed pass were the power not exercised), in such manner and proportions as she may appoint by instrument an its nature testamentary, to be acknowledged by her as a deed in the presence of two witnesses or published by her as a will.” Power, was also given her, and the manner and conditions of its exercise stated, whereby she might lease the property or mortgage or sell it (in the latter case the proceeds to be considered as the property itself); and the deed contained a reservation to the grantors whereby they might, during the life of their daughter, “appoint, convey, and settle the said land and premises hereby granted to her sole and separate use in equity, notwithstanding her coverture, with remainders as to them, or the survivor of them, as may seem fit.” By the deed of 1849, William B. Astor, in consideration of love and affection to his daughter Laura Astor Delano, granted and transferred to trustees named “fifty thousand dollars of the public debt of the state of Ohio,” in the form of certificates, “to receive the interest and income thereof, and to apply the same, as it shall be received, to the use of the said Laura during her life, * * * and upon the further trust, upon her death, to transfer and convey the capital of the said stock to the issue of the said Laura surviving her. * * • * But, if she shall leave no issue surviving her, then to transfer the said capital to her surviving brothers and sister Alida, and to the issue of any of them who may have deceased leaving issue then surviving.” Then follows the provision: “Provided, however, that it shall be lawful for the said Laura, by any instrument executed duly as a will of personal estate, to dispose of the said capital into and amongst her issue, brothers, sister, and their issue, in such shares and proportions as she may think fit, and upon such limitations, by way of trust or otherwise, as in her discretion may be lawfully devised.” A power of sale was also given her, with conditions similar to those in the deed of real estate, it being provided that if the certificates were sold “the fund, into whatever form it may thus be changed, shall stand upon the same trusts, limitations of interest, and powers as are herein expressed, both as to income and capital.” After the execution of these deeds, the daughter during her lifetime received the benefits of the property so conveyed to her which remained intact; and, in the second clause of her will, she having previously disposed of other property to other persons, she gave, devised, bequeathed, and appointed to her nephew Arthur Astor Carey the property “described in the deed, * * * deed of settlement bearing date September 30th, 1848, to have and to hold, * * * and to his heirs and assigns forever”; and also devised, bequeathed, limited, and appointed to her said nephew Arthur Astor Carey “fifty thousand dollars of the public debt of the state of Ohio or the prpceeds thereof particularly mentioned and described in the * * * deed of settlement bearing date September 6, 1849, to have and to hold, f * * and to his heirs and assigns forever.” The application to dismiss, ms to Arthur Astor Carey and the property which he thus became entitled to receive, the proceeding brought to appraise and tax the estate of Laura Astor Delano under the act relating to taxable transfers, was denied, and from the order so entered he appeals.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Schmitt Bros, against the Boston Insurance Company. From a judgment for plaintiffs, defendant appeals, and from so much thereof as refuses to allow interest, on the sum recovered, plaintiffs appeal.</p>

<p>1, Cab r iers—Passengers—Ejection—Misconduct—Issues—Submission.</p> <p>Where, in an action for ejecting a passenger, plaintiff alleged that the-ejection was without any fault or negligence on his part, which was. denied by the answer, and proof of misconduct of plaintiff was introduced, it was error to refuse to submit the issue on the ground that the-only defense alleged or stated in defendant’s opening was that plaintiff was not a passenger at the time of his ejection.</p> <p>■ 2. Same—Evidence.</p> <p>Where plaintiff alleged that he was ejected from defendant’s street car-without any fault on his part, which was denied by the answer, it was. error to exclude evidence that complaint was made to the conductor by a passenger in the car as to the language plaintiff used before ejection, on the ground that the only -defense pleaded was that plaintiff was not a passenger by reason of his failure to pay fare.</p> <p>3. Same—Damages—Evidence.</p> <p>In an action for ejection of a passenger, evidence of improper conduct by plaintiff was admissible in mitigation of damages.</p> <p>Patterson, J., dissenting.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by Frederick Thilemann, Jr., and another against the city of New York. From a judgment in favor of plaintiffs for less than the relief demanded, and from an order denying a motion for a new trial and for a reargument, plaintiffs appeal.</p>

Action by George Karsch against the Pottier & Stymus Manufacturing & Improvement Company. From an order granting a motion to set aside the verdict for the reasons specified in Code Civ. Proc. § 999, defendant appeals.

<p>1. Mandamus—Proceedings—Disposal of Issues Raised—Trial Under Alternative Writ.</p> <p>Where the allegations contained, in an application for a peremptory-writ of mandamus were directly denied by the answer, the issues of fact thus raised should have been disposed of on trial under an alternative writ before granting a peremptory writ.</p> <p>2. Primary Election Law—General Committees—Proceedings—Power of Review on Mandamus—Allegations of Petition.</p> <p>Section 11 of the primary election law (Laws 1898, p. 336, c. 179, as amended by Laws. 1899, p. 968, c. 473), providing that any act or neglect of the officers or members of a. political, convention or committee shall be reviewable by mandamus’ or 'certiorari, does not justify the issuance of mandamus, on the application of a member of the general committee, to require the general committee to recognize an unnamed -person as a member of the executive committee on the unsupported allegation of the petition that the persons entitled to choose such member had agreed to recommend him as a member of the committee.</p> <p>1. Same—Recognition of Member of Executive Committee—Application for Recognition.</p> <p>Section 11 of the primary election law (Laws 1899, p. 968, c. 473), giving to the Supreme Court or justice thereof summary jurisdiction on the complaint of any citizen to review the actions or neglect of the officers or members of a political committee, does not authorize the court to grant a mandamus to compel the general committee to recognize an unnamed person as a member of the executive committee, when such person has never applied for or been refused recognition as a member of such committee.</p> <p>4. Same—Adoption of Rules—Necessity of Notice.</p> <p>Section 9 of the primary election law (Laws 1898, p. 336, c. 179, as amended by Laws 1899, p. 968, c. 473) provides for the meeting and organization of the general committees of the respective parties, gives them the power to adopt rules and regulations, and, unless so adopted, provides that the rules adopted by the last preceding general committee shall remain in force until repealed or amended. Subdivision 2 provides that the rules adopted shall not be amended except on reasonable notice. Held, that the provision requiring reasonable notice of the amendment of a rule applies only to amended rules, and not to rules adopted at the first meeting of the committee changing the rules of the preceding year.</p> <p>5. Same—Failure to File—Effect.</p> <p>A valid rule, adopted by a general committee of a political party at its first meeting on organization, is effective at the time of its adoption, and governs acts performed at that time, even though it be conceded that it was subsequently rendered nugatory by a failure to file a certificate thereof as required by Primary Election Law (Laws 1899, p. 968, c. 473) § 9, subd. 2, providing for the filing of a certificate of every rule and regulation adopted by a political committee within three days from its adoption.</p>

<p>1. Express Company—Receipt— Contract. .</p> <p>Where, on receiving a trunk for transportation, an express company gives the owner a receipt therefor, containing in explicit terms an agreement to forward the trunk to the agency of the company nearest to destination only, and that the company may there deliver the trunk to another express company, and in such case the company to which the trunk is so delivered shall be regarded as the agent of the owner, and liable for 'damages or loss thereafter, such contract is binding on the shipper whether he reads the receipt or not.</p> <p>2. Same—Delivery to Another Carrier—Loss—Liability.</p> <p>Where the express company carries the trunk to its agency nearest the destination, and there delivers it to a transfer company, which makes deliveries for the express company in the place of destination, the express company is not liable for the loss of the trunk by such transfer company.</p>

<p>1. Statute of Frauds—Original Promise.</p> <p>The promise of the owner of a building to a materialman who had supplied the contractor, and who was threatening to file a lien and take away the material not already used on the ground that the contractor was not responsible, to pay his bill, and be responsible for all additional material, in consideration of his not putting on a lien, is an original promise, and not within the statute of frauds.</p> <p>3 New Trial—Verdict—Setting Aside.</p> <p>There being ample evidence to support a finding of agency, a verdict so finding should not be set aside as against the evidence, unless the preponderance is so great that the ends of justice will not be met by allowing it to stand.</p>

Action by Carlotta Herrmann against George Herrmann. From an order denying plaintiff’s motion to punish defendant and George Von Stamwitz for contempt of court, plaintiff appeals.

<p>Appeal from Trial Term, Suffolk County.</p> <p>Action by Samuel P. Smith against the .Great South Bay Water Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Henrietta Meyer against the Supreme Lodge, Knights of Pythias. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals.

Mandamus by the people of the state of New York, on the relation of James J. Miller, against Thomas J. Sturgis, fire commissioner of the city of New York. From a final order granting a peremptory writ, and from an order denying defendant’s motion for a new trial, he appeals.

Action by Emil Mesnier against Abraham Denike. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Suit by Wells T. Jayne, suing as William T. Jayne, against Wilmore Anway and others, as executors of the estate of De Witt C. Jayne, deceased, to enforce a resulting trust. From a judgment in favor of defendants, plaintiff appeals.

Action by Charles Harriman and another against the city of Yonkers. From a judgment dismissing the complaint on the merits, plaintiffs appeal.

Action by Leonora A. Marsh, as general guardian of Horace B. Marsh, a minor, against Martin J. Keogh and another, as executors of the will of Louisa B. Marsh,, deceased. Submitted under Code Civ. Proc. § 1279. Judgment for plaintiff.

<p>1. Reference—Examination of Long Account—Counterclaim.</p> <p>Where a complaint alleged a cause of action on contract which was put in issue by the answer, and the cause of action so alleged was not one justifying a compulsory reference, it was error to order such reference of all the issues on defendant’s interposing a counterclaim which required the examination of a long account.</p>

<p>1. Street Railroads—Injuries to Pedestrians—Crossings—Contributory Negligence.</p> <p>Plaintiff saw a street car approaching him as he left the curb to cross the track two doors from the opposite corner of the street, and again near the corner as he reached the first rail of the track. He testified that he thought he could get across, as he thought the car would stop at one of the crossings to give him a chance to cross; but there was no proof that the car was bound to stop at the crossing, or that plaintiff had reasonable grounds for his belief that it would do so. Eeldf that plaintiff was guilty of. contributory negligence.</p>

Action by Nettie Thompson against Charles E. Adams. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Action by Ellen M. Rush, an infant, by Elizabeth Rush, her guardian ad litem, against the Joseph H. B.auland Company. From a judgment of nonsuit, dismissing the complaint at the close of plaintiff’s case, and from an order denying a new trial, she appeals.

<p>Appeal from Municipal Court of City of New York.</p> <p>Action by Frederick P. Schmidt against the Interurban Street Railway Company. From a judgment of the Municipal Court in favor' of plaintiff, defendant appeals.</p>

<p>1. Negligence—Willeul os Wanton Injury—Materiality op Issue—Law op Case.</p> <p>Under a holding, on appeal in an action for personal injuries, that defendant only owed plaintiff the duty of abstention from willful or wanton injury, the question, on second trial, of whether or not defendant was guilty of negligence, is immaterial, and need not he submitted to the jury.</p>

<p>1. Insurance—Local Lodge—Action against Treasurer.</p> <p>A local benefit insurance lodge, with the sole management and control of its benefit fund, which it raises, manages, and dispenses as its own property, is, though the supreme lodge is incorporated, an unincorporated association within Code Civ. Proe. § 1919, providing that an action may be maintained against the president or treasurer of an incorporated association consisting of seven or more members. •</p> <p>2. Same—Affirmative Defense.</p> <p>A defense that such association does not in fact include seven members must be affirmatively established.</p> <p>3. Same—Sick Benefits—Evidence—Sufficiency.</p> <p>In an action against a local lodge for sick benefits, the constitution and by-laws of the parent order were not offered' in evidence, and the local lodge had no by-laws. It was proved, generally, that the lodge declared benefits at a certain rate per week, and for no determinate period, but that a resolution was adopted in reference to plaintiff, the tenor of which was not disclosed. It was further proved that the lodge ceased to pay plaintiff after a certain date, because it was asserted that he was then, able to work, and that a committee was appointed to investigate his-condition, but its reports were not produced. Held, that plaintiff had not made out a cause of action, as it was incumbent on him to show that the continuance of the benefaction was not at the option of the lodge.</p>

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

<p>Appeal from Trial Term, 'Queens County.</p> <p>Action by Charles K. Smith against the Brooklyn Heights Railroad Company, continued after plaintiff’s death in the name of Christina K. Smith, as his administratrix. From a judgment for defendant, entered on a dismissal of the complaint at the close of plaintiff’s case, she appeals.</p>

Action by Frances M. Bowen against the Preferred Accident Insurance Company of New York. From a judgment in favor of plaintiff, and from an order denying defendant a new trial, defendant appeals.

Application by Rebecca A. R. Barefield for the settlement of her account as administratrix of the estate of Mary E. Rosell. From an order settling the account (74 N. Y. Supp. 472), David H. Rosell • appeals.

<p>1. Mechanics’ Liens—Statutes—Order on Owner—Filing op Order—Validity.</p> <p>Laws 1897, p. 514, c. 418, § 15, provides that no order by a contractor on the owner for money shall be valid unless the contract or copy of the order, etc., be filed. A contractor gave a materialman an order on the owner, requesting him to pay the materialman a certain sum when the last payment should be due on the building. The owner accepted the order, as did also the materialman, and the lien which had been filed by the materialman was discharged. At the time of this transaction there were no other liens filed. Held, that the order, not being conditional, and having been accepted as payment, was good as against subsequent liens.</p> <p>2. Same—Mechanic’s Lien—Foreclosure—Costs.</p> <p>Code Civ. Proc. § 3411, provides that costs in mechanics’ lien suits rest in the discretion of the court, and may be awarded to the prevailing party. Held, that where, in a suit to foreclose a mechanic’s lien, plaintiff had judgment, but the only issues litigated were between the owner and one other than plaintiff, and they were found in favor of the owner, it was proper to award costs in favor of the owner, and against the party with whom he litigated such issues.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Jed E. Adams, Jr., against Latimer A. Wallace and others. From a judgment sustaining a demurrer to the answer of defendant- Wallace, he appeals.</p>

Motion by Peter B. Olney and another to resettle an order which vacated an order directing the receiver of the National Gramophone Corporation of New York to pay them certain moneys. From an order denying the motion, they appeal.

Action by Katherine A. McGlynn, by Frank T. McGlynn, her guardian ad litem, against Annie E. Curry, impleaded with the New York Life Insurance Company. From a judgment in favor of plaintiff, defendant Curry appeals.

Application of Josiah J'. White, as guardian of the person of Frederic Hall White, an infant, for funds.. From an order denying a motion by the Long Island Loan & Trust Company as guardian of the property of such infant to compel Alfred R. Page to restore money which had been paid to him, such company appeals.

<p>Appeal from Special Term, Kings County.</p> <p>Action by George J. Schun against the Brooklyn Heights Railroad Company and others. From an order denying a motion to vacate an order making the Long Island Railroad Company a party defendant, the latter company appeals.</p>

<p>Appeal from Surrogate’s Court, Kings County.</p> <p>In the matter of the judicial settlement of the account of D. McLeod Gawne as sole surviving executor of Ellen O’Reillyj deceased. From a decree construing the will of the deceased and settling the accounts of the executor, Mary E. O’Reilly appeals.</p>

<p>1. Personal Injury—Verdict—Inadequate Amount—New Trial.</p> <p>Where, in an action for personal injury, a verdict is returned for plaintiff for a clearly inadequate sum, his motion for new trial on the ground of the inadequacy of the verdict should be granted, though the court is of opinion that he is not entitled to recover.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Rudolph Bretsch against Carsten (sued as Charles) Plate. From a judgment on a verdict directed for defendant, and from an order denying a motion for a new trial, plaintiff .appeals.</p>

<p>Appeal from Trial Term, Richmond County.</p> <p>Action by Amelia Grosjean against William Galloway. .From a judgment entered on a dismissal of the complaint, plaintiff appeals.</p>

<p>1. Fraudulent Conveyance—Evidence .of Intent.</p> <p>Evidence that a conveyance was made by a debtor to a corporation, formed to his wife’s knowledge for the purpose of avoiding an assignment by him, is sufficient evidence of a fraudulent intent in a conveyance by him two days before to his wife, the conveyances being so close that they may be regarded as acts in the execution of a common purpose to place his property where it would be more difficult for his creditors to reach it.</p>

<p>1. Electricity—Falling of Wires—Injuries—Liability op Company.</p> <p>Whether plaintiff was injured by physical contact with a trolley wire as it fell, or by one of the currents caused by the wires coming in contact with the ground and with the rails, thereby forming a completed circuit, was immaterial; the company being liable in either event.</p> <p>2. Same—Res Ipsa Loquitur—Explanation op Cause op Fall—Eppect.</p> <p>The doctrine of res ipso loquitur applied to a case where defendant’s trolley wire fell into the street, injuring plaintiff; and this though plaintiff introduced evidence showing that the fall was caused by the trolley slipping off and striking some of the supporting wires.</p>

<p>1. Contracts—Sale of Business—Good Will—Liquidated Damaqes.</p> <p>Plaintiff purchased defendant’s barber shop for $475, and, as a part of the bill of sale, defendant agreed not to start or work in any other barber shop within five blocks from the location of the shop sold, “under penalty of a fine of $300.” Reid, that such provision should be construed as liquidated damages, and not as a penalty.</p>

<p>Appeal from Trial Term, Queens County.</p> <p>Action by Annie E. Conway against the Brooklyn Heights Railroad Company and another. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant Brooklyn Heights Railroad Company appeals.</p>

<p>Appeal from Special Term, Kings Count).</p> <p>Action by George Bennett, as administrator of the estate of Florence T. S. Bennett, deceased, against James Riley. From an order denying a motion for a new trial for newly discovered evidence, defendant appeals.</p>

Action by Ottilie Marie Steinway and others against Louis Von Bernuth, executor, and others, to fix the amount of an estate in the executor’s hands, etc. From an interlocutory judgment in favor of plaintiffs, defendants appeal.

<p>1. Libel—Evidence—Admissibility.</p> <p>Plaintiff alleged that she had been libeled by the headlines of an article stating that she was in jail for contempt. A warrant was out for her arrest, but before the sheriff could execute it he was halted by a temporary stay contained in an order to show cause why a stay should not be granted to plaintiff pending her appeal from the judgment which was the basis of the adjudication of contempt. Defendant proved the adjudication of the court in this matter, whereupon plaintiff was permitted to show by paroi testimony that in another proceeding in another court, based on the same alleged wrongdoing, she had obtained a reversal by the Appellate Division of the Supreme Court. Held, that it was error to admit the latter evidence.</p> <p>2. Same—Harmless Error.</p> <p>It could not he said that the error was harmless.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by Thomas Kirkwood against Harry M. Smith. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>1. Chattel Mortgages—Failure to Refile—Effect.</p> <p>By 3 Rev. St. (9th Ed.) p. 2014, § 3, a chattel mortgage not renewed within the year after its filing ceases to be valid as against subsequent creditors or mortgagees in good faith. A chattel mortgagee failed to refile his mortgage, and the mortgagor told plaintiffs, subsequent chattel mortgagees, that it was paid. Plaintiffs made no inquiry of the mortgagee himself. Held, that the latter and his assignee were estopped to deny the invalidity of their mortgage as against plaintiffs. .</p> <p>8. Same—Notice of Rights of Prior Mortgagee.</p> <p>Where chattel mortgagees were informed by the mortgagor that a prior mortgage on the property was given without consideration, and to protect him, presumably against creditors, they had sufficient' notice to put them on inquiry as to the prior mortgagee’s rights.</p> <p>8. Equity—Jurisdiction—Remedy at Law.-</p> <p>Equity has jurisdiction of an action praying judgment that a chattel mortgage made to plaintiffs be declared a lien on the chattels mentioned therein prior to certain other mortgages, of earlier date, assigned to the-defendant, the remedy at law not being adequate.</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action by John E. McLaughlin against William H. Kipp and others. From an order denying defendants’ motion to require plaintiff to give security for costs, defendants appeal.</p>

Certiorari by the people, on relation of the Brooklyn Union Gas Company, against Thomas R. Feitner and others, constituting the board of taxes and assessments of the city of New York. From an order dismissing the writ, relator appeals.

<p>1. Wills—Lapsed Legacy—Effect.</p> <p>Testatrix bequeathed to her son one-half of her estate for the term of his natural life. “At his death I leave to his first daughter C. five thousand dollars, the balance of his portion of my estate at his own entire disposal.” C. died before her father. Testatrix also left a daughter, and it was her intention to divide her estate equally between son and daughter. Held, that the legacy lapsing by C.’s death before her father fell back into the fund from which it was to be taken, and not into the residuum of the estate.</p> <p>2. Same—Construction—Power of Disposal.</p> <p>The will conferred on the son a power of disposal of his portion of the estate.</p> <p>8. Same—Estate Created in Devisee.</p> <p>The real property law (Rev. St. [9th Ed.'J p. 3562, § 111) declares that a power “is an authority to do an act in relation to real property, or to the creation or revocation of an estate therein, or of a charge thereon.” Section 114 defines a power as general where it authorizes the transfer of a fee by means of conveyance, will, or charge on the lands embraced in the power, to any grantee whatever. Section 129 provides that where an absolute power of disposition, not accompanied by any trust, is given to the owner of a life estate, such estate shall be changed into a fee absolute as to creditors, but subject to any future estate limited thereon in case the power is not executed. Section 131 declares that in all cases where power of disposition is given, and no remainder is limited on the estate of the grantee of the power, such grantee shall be entitled to an absolute fee. These provisions have been construed as applicable also to powers concerning personalty. Held, that under the will the son acquired the ownership of one-half of the personalty, untrammeled by a trust or remainder, and could exercise the power of disposal by will, or could dispose of the property by will not in the exercise of a power.</p> <p>4. Same—Exercise op Power—What Law Governs.</p> <p>The real property law (Rev. St. [9th Ed.] p. 3567, § 147) provides that, where a power to dispose of real property is confined to a disposition by devise or will, the instrument must be a written will, executed as required by law. Code Civ. Proc. § 2694, declares that, except where special provision is otherwise made, the validity and effect of a testamentary disposition of any property, other than real estate, situated within the state, is regulated by the laws of the- state or country of which the decedent was a resident at the time of his death. Testatrix bequeathed property to her son for life. At his death his whole portion of her estate was to be “at his own entire disposal.” Held, that the son could make “entire disposal” of his portion of the personalty by an instrument legal in the place of his domicile, and it did not have to conform to the law of testatrix’s domicile.</p> <p>5. Sam:e—Defective Execution op Power—Remedy in Equity.</p> <p>Where a husband has an estate for life in property, with power to dispose of it by will, and the will executed by him, by which he gives the property to his wife, is not effective as an execution of the power, because not executed in the presence of witnesses, as required by the laws of New York, equity ought to intervene with its remedial powers to carry out the husband’s purpose.</p>

Action by Patrick Duggan against Howard Phelps and others. Prom a judgment for plaintiff, and from an order denying a motion for a new trial, defendant Howard Phelps appeals.

. Appeal from Trial. Term, New York County. Action by Hannah Walters, as administratrix, • etc., against the George A. Fuller Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>Appeal from Special Term, New York County.</p> <p>Suit by Virginia C. Conte, an infant, by Eliza Martin, her guardian ad litem, against Joseph Conte. From an interlocutory judgment for plaintiff, defendant appeals.</p>

<p>1. Appeal—Disposition op Cause—Judgment Erroneous in Part.</p> <p>Where the property alleged to have been injured by the construction of a railroad tunnel consisted of two lots, one of them undoubtedly injured to some extent, but the other suffering only nominal damage, and the damages awarded were in a lump sum, and the decision of the trial judge did not show how much he assessed as the damage to each lot, reversal of the entire judgment was necessary.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Application by Adele Tillotson Pieris against George William Clune, an attorney at law, for an order to determine the attorney’s lien for certain services rendered by him. From an order denying the attorney’s motion to set aside a referee’s report and confirming the report, the attorney appeals.</p>

Action by Solomon Multz against Lena Price and Moses Price to set aside an alleged fraudulent conveyance. From a judgment for plaintiff, defendants appeal.

Action by David Abraham against Ida Burstein and another. From a judgment on a verdict for plaintiff and from an order denying a motion for a new trial, defendants appeal. The action is brought to recover broker’s commissions.

<p>Appeal from Special Term, New York County.</p> <p>Action by Theodore Schultze against Isaac Goodstein and Jacob Deng. From a judgment in favor of Goodstein, plaintiff and defendant Deng appeal.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by George C. D’Arcy against the Westchester Electric Railway Company. Judgment dismissing the complaint, and plaintiff appeals.</p>

<p>I. Broker—Right to Commission—Promise Without Consideration.</p> <p>The owner of property, asked by a broker if he would sell it, said he might, if he got a good offer; that he considered §20,000 a good offer. And to the question whether, if made an offer of $19,000, he would sell at the price, and pay the broker $190, he answered that he could not say, but did not believe he would refuse it. The next day, being made that offer through the broker, he said he would take it, and pay the broker $190. Held, that his promise was without consideration, everything done by the broker having been done previously and voluntarily, so that the owner, concluding not to sell, was not liable to the broker.</p> <p>Hirschberg, J., dissenting.</p>

Action to partition lands, brought by Henry Weymann and another against Mary E. Weymann, George William Weymann, Ered William Stopenhagen, Caroline Murray, and others. From so much of the interlocutory judgment entered pursuant to the report of a referee as decreed that defendant Stopenhagen had a lien on the share or interest of defendant George William Weymann in the premises sought to be partitioned, George William Weymann appeals.

<p>1. Municipal Corporations—Personal Injuries—Notice op Intent to Sue.</p> <p>Where a plaintiff, in an action against the city for personal injuries, had filed a notice with the comptroller, claiming a certain sum as damages, and naming the time and place of the accident, and the comptroller had referred the matter to the corporation counsel, who had acted thereon and examined plaintiff as to his injuries, the city had received a sufficient notice of intention to sue within the meaning of the statute, though such intention was not expressly stated in plaintiff’s notice.</p> <p>Van Brunt, P. J., and Ingraham, J., dissenting.</p>

Action by Louis Bauer against Henrietta M. Parker, executrix of. John L. Macaulay, deceased, and others, to enforce a limited liability.of directors of an insolvent corporation. From a judgment for; plaintiff, defendants appeal.

Action by Otto: F. Von Arnim against Harrison B. Moore. Held: and gave to the plaintiff the following paper: “New York, Jan. 19th, 1892. “Mr. Otto F. Yon Arnim—Dear Sir: I hold the mortgage of B. H. Onderdonk to William Onderdonk for $3,000 as security for loan of $1,000 and will surrender said mortgage to you on payment of said $1,000 and I hereby agree to hold the balance of $2,000 on said…

<p>Appeal from Trial Term, New York County.</p> <p>Action by John White against the Manhattan Railway Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>1, Accord and Satisfaction—Liquidated Demand—Acceptance of Part of Demand.</p> <p>Where, under an insurance policy, one has a liquidated and lawful demand against the company, the surrender of the policy and acceptance of a less sum than the amount of the demand cannot amount to accord and satisfaction.</p>

<p>Appeal from Judgment on Report of Referee.</p> <p>Action by William E. Van Arsdale against Erank M. Buck, as executor of the estate of William H. Van Arsdale, deceased. Erom a judgment on a referee’s report in favor of plaintiff, defendant appeals.</p>

<p>1. Witnesses—Tbansaction with Decedent—Removal of Bab.</p> <p>Under Code Civ. Proc. § 829, providing that a party shall not be examined in his own behalf against an administrator concerning a personal transaction with a decedent, except where the administrator is examined in his own behalf concerning the same transaction, where, in an action by an administratrix on notes which defendant claimed had been paid by cheeks, the administratrix was allowed to testify that decedent had been in the habit for many years of cashing checks for defendant, it was error to refuse to allow defendant to testify, on being shown certain checks, as to the conversation which took place between him and decedent at the time the checks were delivered.</p>

<p>Appeal from Special Term.</p> <p>Action by the Fonda, Johnstown & Gloversville Railroad Company against John W. Olmstead. From a judgment in favor of plaintiff, defendant appeals.</p>

<p>Appeal from Trial Term.</p> <p>Action by George Meinhardt against the Excelsior Brewing Company. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Francis P. Burke and another, as managers, etc., for the New York & Boston Fire Lloyds, against Benjamin T. Rhoads, Jr. From an interlocutory judgment overruling their demurrer to two of the defenses contained in the answer (79 N. Y. Supp. 407), plaintiffs appeal.

Petition by Frank Comesky against the village of Suffern and others for appointment of commissioners to- appraise damages sustained by plaintiff by a change of street grade. From an order confirming the report of the commissioners, defendants appeal.

Action by Charles A. Lundine against Alexander J. A. Callaghan. From a judgment of the Municipal Court for plaintiff, defendant appeals ; and from a judgment for defendant on a counterclaim, plaintiff appeals.

<p>Appeal from Special Term, Queens County.</p> <p>Action by Martha A. Smith and others against Mary I. Bach and another. From an order denying plaintiffs’ motion for leave to serve supplemental complaint, they appeal.</p>

Action by Annie F. Mayer, as guardian ad litem, against William G. Flammer. Motion by Margaretha Pearl Mayer, by her next friend,. Ann Kelly, to have vacated two orders, one of them dismissing the action.

Action by Sarah T. Meeker, as administratrix of Henry W. Meeker, deceased, against Clark M. Smith and others. Held: under their supervision, an interstate fair. One of the attractions at said fair was what is called the “Slide for Life,” performed by Mr. and Mrs. Schmick. The apparatus in use in this performance consisted of a rope which was attached to a beam in the back of the grand stand.

<p>Appeal from Trial Term, Westchester County.</p> <p>Action by Daniel E. Lynch against William W. Buckley, as sole executor of the estate of Thomas' C. Oakley, deceased, and others, for the specific performance of a contract for the sale of land. From a judgment dismissing the complaint, plaintiff appeals.</p>

Action by Frederick A. Lyons against the city of New York. From a judgment of the special term (77 N. Y. Supp. 589) dismissing the complaint, plaintiff appeals.

<p>Appeal from Special Term, New York County.</p> <p>Action by Morris Segler against Harris Bernstein. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Crimes—Placing Obstruction on Tracks—Evidence—Sufficiency.</p> <p>In a prosecution for placing an obstruction on a street railway track, and thus endangering lives, the evidence showed that a crowd, of which defendant was one, had been drinking quite heavily, and late in the evening went to take a street car to return home. Several cars were signaled, but did not stop; and some member of the party, becoming angry, placed the obstruction on the track to compel the car to stop. There was no evidence that this was done by defendant. On the other hand, there was evidence that he was at that time lying some distance from the track, in a drunken stupor. Although he escaped from the officer who arrested him, he surrendered himself into custody at the time of trial. Held, that the evidence was insufficient to warrant a conviction.</p> <p>Adams, P. J., and McLennan, J., dissenting.</p>

Separate actions by Patrick T. Loughman, Michael Mulcahey, Frederick Goehler, and Adolph Gehres against the Long Island Railroad Company. From a judgment in each dismissing the complaint, plaintiffs separately appeal.

Action by Honora Cunningham against Frank M. Hewitt, as administrator of the estate of Christopher Hewitt, deceased. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Defendant’s intestate died upon the 17th day of September, 1900, at the age of 88 years. He left no widow and some nephews and nieces as his sole next of kin.

Certiorari by the people, on relation of the New York Central & Hudson River Railroad Company, against James Matthias and others, as assessors of the town of Amsterdam, Montgomery county, to review a tax assessment. From an order and judgment in favor of relator, as amended, defendants appeal. The proceeding is upon a writ of certiorari to review an assessment, upon the allegation that the same is unequal.

Action by Mary A. Fitzgerald against the New York Central & Hudson River Railroad Company. From a judgment dismissing the complaint and directing a nonsuit after a verdict in favor of plaintiff, she appeals.

<p>Action by E. Martin Black against William K. Vanderbilt and others.</p>

<p>Action by Sarah J. Bridenbecker against Eliza Bridenbecker, substituted, etc.</p>

<p>Action by Marget Clark, as administratrix, etc., agamst the Erie Railroad Company.</p>

<p>Action by the city of Rochester against Frederick L. Heughes.</p>

<p>Action by Alfred T. Christiansen against Henry O’Neill.</p>

<p>Action by Bridget Corkery against E. Gould Woodruff.</p>

<p>Action by Harry S. Cornish against James G. Bennett.</p>

<p>Motion for a reargument.</p>

<p>Action by Michael Doherty against the Oneita Knitting Mill.</p>

<p>Action by Morgan G. Finkle against Edward Van Burén.</p>

<p>Action by John Fleischer against the Metropolitan Street Railway Company.</p>

<p>Action by Thomas J. Holman against Emily W. Lawrence. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

<p>Action by George C. Hudson against the Erie Railroad Company.</p>

<p>Action by John G. Jeffers against the McLennan Paint Company, Limited.</p>

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

<p>Action by W. Martin Jones against the New York Central & Hudson River Railroad Company.</p>

<p>Action by John E. McLaughlin against Daniel Appleton and others, impleaded, etc.</p>

<p>Action by Thomas McNamara and another against William R. Willcox. A. O. Butts, for appellants.</p>

Action by John Michel against the Frick Company. From a judgment for plaintiff, and an order denying new trial, defendant appeals.

Separate proceedings by the people of the state of New York, on the relation of James H. Baker and of Joseph Daniels, against William Miller Collier and others, constituting the state civil service commission.

<p>Proceeding by the people of the state of New York against William B. Trowbridge and others.</p>

<p>Proceedings by the people of the state of New York, on the relation of Michael F. Balbert, against John J. Scannell, as fire commissioner, etc.</p>

Proceeding by the people of the state of New York, on the relation of Edward J. Burns, against John Partridge, as police commissioner of the city of New York, etc.

<p>Proceeding by the people of the state of New York, on the relation of Charles J. Carroll, against John J. Scannell, as fire commissioner, etc.</p>

Separate proceedings by the people of the state of New York, on the relation of Eosie Frank against Katherine Bement Davis, superintendent, etc., and Leroy B. Crane, city magistrate; on the relation of May Clark against the keeper of the State Beformatory for Women at Bedford, N. Y„ and Leroy B. Crane, city magistrate; and on the relation of Mamie Smith against the keeper of the State Keformatory for Women at Bedford, N. Y., and Joseph Pool, city magistrate.

<p>Separate proceedings by the people of the state of New York, on the relation of James H. Gillen and of John O’Brien, against John N. Partridge, police commissioner of the city of New York.</p>

<p>Proceeding by the people of the state of New York, on the relation of Thomas C. Taylor, against the board of health of the department of health of the city of New York.</p>

<p>Proceeding by the people of the state of New York, on the relation of John F. McKeon, against John J. Scannell, as fire commissioner of the city of New York.</p>

<p>Separate proceedings by the people of the state of New York, on the relation of Martin Murphy, of Albert E. Meyer, of Charles Colne, and of William G. Morgan, against William Miller Collier and others, constituting the state civil service commission.</p>

<p>Action by Frank R. Pierson and another against James Speyer.</p>

<p>Action by Mortimer C. Rosenfeld against the Lancashire Fire Insurance Company.</p>

<p>Action by Charles K. Smith agáinst the Brooklyn Heights Railroad Company.</p>

<p>Action by Ellsworth O. Smith against Amos S. Chesebrough and others.</p>

<p>Action by Jerome Uhle against Arnold L. Baton.</p>

Action by Alice Wood, as administratrix of the goods, chattels, and credits of Robert Wood, deceased, against John A.' Wyeth and W. H. Landon White, under Code Civ. Proc. § 1902, to recover damages for malpractice. From a judgment on a verdict for defendant White, and a judgment dismissing the complaint as to defendant Wyeth, plaintiff appeals.

<p>Action by Edward Wunch against David Shankland, as president, etc.</p>

<p>Action by Carolina Zander against the New York Security & Trust Company.</p>