Volume 82 — New York Supplement

<p>1. Release oe Mortgage—Basements not Included.</p> <p>A release; of. one of several- mortgaged plots, which- described the plot released,, in, reference to a map, by metes, and bounds, did not include easements to use private roads laid out on the map, not referred to in the release.</p> <p>2. Same—Appurtenances.</p> <p>Easements to use private roads did not pass as appurtenances to land released.</p>

<p>1. Mortgages—Foreclosure — Defaulting Defendant—Adjudication of Rights.</p> <p>In an action to foreclose an equitable mortgage, and to have the lien of the same adjudged superior to the lien of defendants’ mortgages, it was error to render judgment declaring a mortgage of a defaulting defendant superior to that of plaintiff.</p> <p>2. Same.</p> <p>In an action to foreclose an equitable mortgage it was error to adjudicate the rights of a defaulting defendant, where the complaint did not state what such defendant’s interest was in the premises, nor demand any relief against her.</p> <p>3. Same—Superiority of Lien—Notice of Incumbrance—Tenant in Possession.</p> <p>Plaintiff was in possession as tenant of property belonging to one of defendants. Such defendant, becoming indebted to plaintiff, agreed to give her a mortgage on the premises to secure the debt, and that plaintiff should occupy the land as tenant until the debt should be fully paid. Defendant refused to give the mortgage, and later executed mortgages to the other defendants, plaintiff being in possession at the time of their execution. Held, that the lien of plaintiff’s equitable mortgage was superior to that of defendants’ mortgages, as defendants were charged with notice of plaintiff’s rights under her agreement with the mortgagor.</p>

<p>1. Subrogate Court—Appeal by Person Other than Party—Necessity of Intervention.</p> <p>Under Code Civ. Proc. § 2569, which provides that a creditor of, or a person interested in, the estate or fund affected by a decree or order of the surrogate, who was not a party to the special proceeding, but was entitled by law to be heard therein on his application, may intervene and appeal, a person intending to take such an appeal need not first seek to intervene and become a party by means of a petition.</p> <p>2. Same—Necessity of Exceptions to Findings.</p> <p>Nor is it necessary for such person to file exceptions to the findings of the surrogate in order to take an appeal.</p> <p>3. Same—Creditor or Person Interested in Estate.</p> <p>A city to whom taxes were due by the administrator was “a creditor of or person interested in the estate,” within the meaning of such section.</p> <p>4. Same—Taxes Accruing through Delay of Administrator—Ground for Refusing Payment.</p> <p>The fact that an administrator had been guilty of unwarrantable delay in the settlement of the estate, whereby unnecessary taxes had accumulated, was not ground for failing to provide for their payment in the decree settling his accounts and directing the distribution of the estate.</p>

Proceeding under Village Law, Laws 1897, p. 420, c. 414, § 159, to recover damages sustained on account of a change of grade, by Charles F. Bley against the village of Hamburg. From an order reducing a bill of costs taxed by the clerk in favor of plaintiff, he appeals.

<p>1. Witnesses — Order for Examination of Officers of Corporation— Documents to be Produced.</p> <p>An order for the examination of officers of defendant corporations, requiring such officers to produce all the books of defendants upon such examination, was too broad, and should have been restricted to the corporate minute books and by-laws of the defendant which evidenced the instrument set out in the complaint, and books of all defendants relating to contracts annexed to, and made a part of, the complaint.</p>

<p>L Attorneys at Law—Substitution — Fixing Compensation—Form op Order.</p> <p>On motion by plaintiff for substitution of attorneys, and to ¡fix the compensation of the withdrawing attorney, the attorney submitted an affidavit stating that he had been retained by the managing director of plaintiff; that later he agreed with a person representing plaintiff to withdraw, and receive $1,000, 15 per cent, of -damages recovered, and an equitable share of any costs awarded. Held, that a referee should he appointed to take proof as to the alleged agreement, and to ascertain the amount that the withdrawing attorney was entitled to under the agreement, if proved, and, if not proved, then the reasonable value thereof, and that the substitution should be made upon the filing of a stipulation by the substituted attorneys that the withdrawing attorney should be paid the amount fixed by the referee, and that such amount should he a lien upon the cause of action, the proceeds in their hands, and the judgment.</p>

Action by Mary L,ahne against William H. Seaich. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

<p>1. Dismissing Complaint—Want op Prosecution.</p> <p>Where a case had heen at issue for nearly 13 years without the plain- ■ tiff bringing it on for trial, and the reason given for the delay was that the parties became reconciled, and that neither wished to prosecute the action, the complaint was properly dismissed on defendant’s motion.</p>

<p>1. Claim against Receiver—Services oe Attorney.</p> <p>The unsuccessful efforts of an attorney in defending his own bill for counsel fees on a reference cannot be made the basis of a charge against a receiver.</p>

Action by Moses Tanenbaum against Samuel Eiseman and another. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for a new trial, defendants appeal.

Action by Henry M. Stevenson against William H. Cowan and others. From a judgment for defendants, dismissing the complaint, plaintiff appeals. The Cattaraugus Water Company was organized in 1890, pursuant to the provisions of chapter 737, p. 1100, of the Laws of 1873. On September 1, 1890, said company issued its bonds, aggregating $18,000, secured by a mortgage on all its property and franchises. Subsequently the plaintiff became the owner of $1,000 of said bonds.

<p>Appeal from Special Term, Albany County.</p> <p>Action by Drayton Hillyer and others against William B. Le Roy and others to set aside certain conveyances by defendants as in fraud of creditors. From a judgment in favor of plaintiffs, certain of the defendants appeal.</p> <p>The plaintiffs obtained a judgment against the defendants William B. Le Roy, Amelia L. White, R. Nicholas Vandervoort and Minnie A. Becker on the 3d day of December, 1897, for $17,723.97, upon promissory notes given by said judgment debtors for wool purchased by them of the said plaintiffs, which judgment was on that day docketed in the office of the clerk of the county of Albany. Execution was issued upon said judgment to the sheriff of the county of Albany, and returned wholly unsatisfied. After the purchase of said wool, and before the said judgment was obtained, the defendant William B. Le Roy transferred to his wife, the defendant Elizabeth Le Roy, certain real estate in Cohoes, described in the judgment. The said Amelia L. White transferred to her husband, the said defendant James White, two houses and lots in the city of Cohoes, described in the judgment, and by a separate conveyance, a certain other house and lot in the city of Cohoes, described in the judgment, together with certain personal property mentioned in the judgment. This action was commenced on the 30th day of March, 1899, to obtain a judgment declaring said transfers of real and personal property, together with many other transfers of real property, fraudulent and void as against the plaintiffs, and to require the defendants to account to the plaintiffs for the property so fraudulently transferred. At the time of the commencement of the action a lis pendens was filed in the office of the clerk of the county of Albany. Answers were interposed by the several defendants. On May 8, 1899, said defendants, William B. Le Roy, Amelia L. White, R. Nicholas Vandervoort, and Minnie A. Becker, filed a petition in the United States District Court of the Northern District of New York, praying to be adjudged bankrupts. On the 9th day of May, 1899, they were by said court declared and adjudged bankrupt. On June 27, 1899, an order was made by said court “that the discharge be, and the same is hereby, granted to the above-named bankrupts discharging and releasing them from all of their debts which are provable in bankruptcy, excepting only such as are exempt by the provisions of the act of Congress.” A trustee in bankruptcy was appointed and qualified. Subsequently the defendants applied for leave to serve a supplemental answer, which was granted, and the order granting such leave was in accordance with the petition therefor; the material part of which order is as follows: “To make and serve herein an answer supplemental to the answers of the defendants herein, alleging that the defendants, William B. Le Roy, Amelia L. White, Minnie A. Becker, and R. Nicholas Vandervoort, as individuals and as members composing the firm of A. Le Roy & Son, bankrupts, were fully discharged of and from all debts and claims which, under the act of Congress entitled ‘An act establishing a uniform system of bankruptcy throughout the United States’ (Act July 1, 1898, 30 Stat. 544, c. 541 [U. S. Comp. St. 1901, p. 3418]), are made provable against their estate, and which existed on the 8th day of May, 1899.” Supplemental answers accordingly were served by the defendants, and the action was referred to and tried before a referee, who reported in favor of the defendants except as to the real and personal property herein-before specifically mentioned, and that as to the property hereinbefore specifically mentioned said referee found that the transfers thereof were made and received for the purpose of hindering and defrauding the creditors of said William B. Le Roy and Amelia L. White respectively, and that the same were fraudulent and void.</p>

<p>1. Trial—Nonsuit—Insufficiency of Evidence—Incredibility.</p> <p>The court is justified in nonsuiting a plaintiff, although there is slight evidence to support his position, where such evidence is incredible and averse to well-known physical laws.</p> <p>Williams, J., dissenting.</p>

<p>1. Conversion—Possession—Evidence—Sufficiency,</p> <p>On November 13th defendants recovered judgment against T. A constable, with execution to enforce the judgment, took possession of a piano which T. had purchased, and on November 23d sold it. On December 8th plaintiff, claiming under T., demanded possession of the piano from one of the defendants, who replied: “You cannot have that piano. It does not belong to you.” Helé to warrant a finding that defendants were in possession of the piano January 10th following, when plaintiff’s action of conversion was commenced.</p> <p>2. Same—Demand—Necessity.</p> <p>It is not necessary that a demand should be made for property before commencement of an action for its conversion, where the possession of the defendant came about unlawfully.</p> <p>3. Conditional Sale—Sale by Purchaser—Title.</p> <p>The purchaser of a piano sold on conditions, whereby title was to remain in the seller until full payment, and possession to be in the purchaser, mortgaged her interest, subsequent to which the piano was sold on execution against her, and after that she sold all her interest to the mortgagee. Held, that the latter stood in the place of the purchaser of the piano, and might maintain an action for conversion.</p> <p>4. Conversion—Measure of Damages.</p> <p>Where the purchaser of a piano sold on conditions, whereby title was to remain in the seller until full payment, and possession to be in the purchaser, sues for conversion of the piano, the measure of damages is the value of the piano at the time of the taking, less the unpaid purchase money.</p> <p>5. Conditional Sale—Interest of Purchaser—Mortgage.</p> <p>The purchaser of personalty under conditional sale, whereby title remains in the seller until full payment, and possession is given the purchaser, has a mortgageable interest.</p>

<p>1. Master and Servant — Contributory Negligence — Assumed Risk-Negligence of Fellow Servants.</p> <p>Neither, assumed risk nor the negligence of co-employés constitutes contributory negligence on the part of a deceased servant.</p> <p>2. Same—Negligence.</p> <p>If a collision of a train with a stray car on the main track, in which a fireman on the train was killed, could have been averted, had there been a derailing switch on the branch track, from which the car had evidently come, the negligence of the railroad in failing to put in such derailing switch would be the primary cause of the collision, and sufficient to support a recovery for damages.</p> <p>3. Same—Instruction—Negligence. *</p> <p>Plaintiff's decedent, a fireman, was killed in a collision of his train with a stray car, which had evidently come onto the main track from a branch. Plaintiff did not claim that there were any -defects in the brakes of the car, but based her right of recovery on the company’s failure to put in a derailing switch on the branch. The court charged that the company was not guilty of negligence if it had furnished safe brakes for the car, and if failure to set them was the direct cause of the Injury, but that it was guilty if the failure to put in a derailing switch was a concurring cause of the accident. Throughout the charge there was a confusion of the terms “contributory negligence,” “assumption of risk,” “negligence of co-employés,” and “negligence of the company.” Held that, under the circumstances, a verdict for the company could not be sustained.</p> <p>4. Same—Assumption of Risk—Question for Jury.</p> <p>Where there was no direct evidence that a fireman on a freight train, who was killed in a collision with a stray car on the track, which had evidently come from a branch, knew that there was no derailing switch on the branch, or that such a switch was necessary on account of the grade- of the branch, it was a question for the jury whether he had assumed the risk of accidents on account of the absence of such a switch.</p>

Action by George C. Banta against Peter N. Banta for breach of a parol contract for services. From a judgment dismissing the complaint, plaintiff appeals. The parties to this action are brothers; the defendant being about 77 years of age, and the plaintiff about 64 years of age. The defendant resides and has resided for many years upon a farm owned by him, and known as the “Banta Homestead,’’ at Clifton Park, in the county of Saratoga.

<p>1. Insurance—Loss—Evidence.</p> <p>Plaintiff is not concluded by his written statement made to defendant after the fire as to the articles on the floor covered by defendant’s policy; he testifying that, when his attention was more particularly called to it, he remembered seeing other articles there.</p> <p>2. Same.</p> <p>Plaintiff cannot recover insurance on the basis of a loss of $2,000, the actual values of the articles, taking his highest figures, aggregating only $1,400, though he placed the cost price at over $2,000, and another stated he considered the value of the goods 'as all of $2,000; the facts on which this conclusion was based not being set forth, other than that he said he had known of the goods before they were placed in storage.</p>

Action by Augustus S. Fitch and others against Tina B. Fraser to recover contribution as one of the makers of a note. From a judgment in favor of defendant, plaintiffs appeal. Upon November 6, 1899, the defendant, together with the plaintiffs executed a promissory note, of which the following is a copy: “Walton, N. Y., November 6th, 1899. “Two months after date we promise pay to the order of Delaware.

<p>Appeal from Trial Term, Oneida County.</p> <p>Action by Michael Devereux against the Utica Steam Cotton Mills. From a judgment in favor of defendant, plaintiff appeals.</p>

Action by Elmer T. Harvey against William A. Arnold and another. From an order adjudging defendant Arnold in contempt of court, and imposing a fine upon him, he appeals.

In the matter of the application for revocation of letters of administration granted to John McCabe, as administrator of the estate of James A. McCabe, deceased. From an order of the Surrogate’s Court, denying application of Laurence McCabe for revocation of letters, he appeals. James A. McCabe died on the 7th day of April, 1900, at Warren, Pa., intestate, a resident of said state. He left property in Pennsylvania, but none within the state of New York.

<p>1. Mortgage — Invalidity—Foreclosure—Estoppel—Equities op Mortgagee.</p> <p>Defendant furnished certain saloon fixtures, taking a chattel mortgage for the same, and subsequently took back the fixtures and supplied new ones. The purchaser was sick at the time, and, while he was too ill to act, his brother, who was operating the business, executed a chattel mortgage on the new fixtures, signing the purchaser’s name. In an action to restrain the foreclosure of the mortgage as against the donee of the purchaser’s wife, defendant claimed that the mortgage was executed by the purchaser. Held that, having elected to stand upon his rights under the alleged mortgage, he was not entitled, on appeal from a judgment against him, to claim any equities which might arise in his favor from the circumstances.</p>

<p>Action by Alfred H. Burt and another against William W. Smith. Motion for a new trial on plaintiffs’ exceptions ordered to_ be heard by the Appellate Division in the first instance, after nonsuit granted at-the close of the trial. Exceptions sustained.</p>

<p>1. Conveyance by State—Bounding Land by Street.</p> <p>Where the state makes a map of land, designating blocks and streets thereon, and gives a patent of a block, describing it as a block of a certain number, as designated on the map, title to the fee to the center of the street, though it has not been opened or used as such, passes to the patentee.</p>

<p>Appeal from Special Term, Schenectady County.</p> <p>Actions by Janet Franchot Paige, Caroline Paige Lansing, Belle Van Epps, Isabella Beattie, Louise A. Thompson, and Charles L. Whitmyre against the Schenectady Railway Company to restrain defendant from laying its tracks over a certain avenue of which plaintiffs claimed to be the owners in fee. From a judgment in favor of plaintiffs, defendant appeals.</p>

Action by Patrick Ivers against the Minnesota Dock Company. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial on the minutes, defendant appeals.

Action by Martin F. Bragg against the town of Victor. Demurrer to the complaint was overruled, and judgment rendered for plaintiff for the amount of his claim, and defendant appeals.

Action by James B. Rathbone, as trustee in bankruptcy of the Elmira Steel Company, against F. Wayland Ayer and others. From a judgment sustaining defendant Ayer’s demurrer to the complaint, plaintiff appeals.

Action by James B. Rathbone, as trustee in bankruptcy of the Elmira Steel Company, against F. Wayland Ayer and others. From a judgment overruling a demurrer to the complaint, defendant Ayer appeals.

Action by Anna E. Mock and others against Mary Elizabeth Kaufman and others. From a judgment on a verdict for defendants establishing the validity of the will of Leander W. Kaufman, deceased, and from an order denying a motion for new trial on the minutes, plaintiffs appeal.

Action by John E. Corscadden against Isaac M. Haswell and oth■ers, composing the Albany penitentiary commission, and another, to enjoin the defendants from removing plaintiff from his office of superintendent of the Albany County Penitentiary. Motion to continue temporary injunction pending the trial of the action.

<p>Action by Fannie McComb Herzog against the Title Guarantee & Trust Company and others. Judgment for plaintiff.</p>

Action by Joseph Moscow against Albert London. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.

Action by George R. Paul against James C. Fargo, as president of the Adams Express Company. From a judgment for defendant, plaintiff appeals. The action was begun on the 8th day of January, 1902, to recover damages alleged to have been sustained by the plaintiff on account of the commencement and prosecution of a civil action against him by the defendant, which resulted in a final judgment of no cause of action in favor of this plaintiff, the defendant in that action.

Action by Johanna Pfingsten against George W. Perkins, as president of the Cigarmakers’ International Union of America. Motion to set aside a verdict for plaintiff, and motion to dismiss the complaint.

<p>Appeal from Trial Term, New York County.</p> <p>Action by Minnie Grube, as administratrix, etc., against the Hamburg-American Packet Company. From a judgment in favor of plaintiff, and from an order denying a new trial, defendant appeals.</p>

<p>Appeal from Special Term, Monroe Comity.</p> <p>_ Suit by the Rochester & Lake Ontario Water Company against the city of Rochester. From a judgment granting a perpetual injunction restraining defendant from interfering with the plaintiff in laying its water mains, defendant appeals.</p>

<p>Appeal from Special Term, Suffolk County.</p> <p>Action by George N. West against Alfred B. Mills. From a judgment directing specific performance of a contract for sale of real estate, defendant appeals.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Action by John H. Seed against Ben L. Fairchild. From an order denying defendant’s motion for a further account and bill of particulars, he appeals.</p>

Action by the National Bank of Rondout against Thomas F. Byrnes, impleaded, etc. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Certiorari by the people, on the relation of Garra K. Tester, to Joseph H. Eno and others, constituting the town board of the town of Hamburg, Erie county, N. Y., to review the action of said board in the matter of the audit of a claim presented to it by relator. Determination of board annulled.

Action by Howard P. Eells, as receiver of the Eastern Paving Brick Company, against T. Henry Dumary. From an order sustaining plaintiff’s demurrer to the fifth paragraph of the defendant’s answer, defendant appeals.

<p>Appeal from Special Term, St. Lawrence County.</p> <p>Action by Peter Mahoney against George Breckenridge and others. Judgment for plaintiff, and defendant Breckenridge appeals.</p>

In the matter of the judicial settlement of the accounts of Ruth Hunt, as executrix of Thomas Hunt, deceased. From an order of the surrogate directing the executrix to make a supplemental account, she appeals. Thomas Hunt, the husband of Ruth, died in 1889, leaving a will which was proven in December of that year.

Action by the Penrhyn Slate Company and another against the Granville Electric Light & Power Company and another. Judgment for defendants, and plaintiffs appeal. The plaintiffs are riparian owners on the Mettowee river, in Washington-county, N. Y., and each owns a dam and operates a water power thereon. About three miles above is located the village of Granville, one of the defendants herein, and also the Granville Electric Light & Power Company.

Action by the Patrons of Industry Fire Insurance Company of Sara-toga County, N. Y., against William A. Plum. ¡From a judgment of the county court affirming a justice’s judgment dismissing the complaint, plaintiff appeals.

Action by Prescott C. Bridgham and others against James F. Kelly, impleaded with James J. Kelly. From a judgment for plaintiffs, defendant James F. Kelly appeals.

Action by Fanny S. Wallace and another, as executors, etc., against William McEchron and others. From a judgment dismissing the complaint, plaintiffs appeal.

<p>Motion for reargument and for leave to appeal to the Court of Appeals on questions to be certified to that court after a unanimous affirmance of a final judgment and order. Motion for reargument denied, and for leave to appeal to the court of appeals granted.</p>

Action by Apollonia Warth, trading and doing business under the firm name and style of Albin Warth, against Simon Liebovitz. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Certiorari by the people, on the relation of the Connecting Terminal Railroad Company, against Nathan L. Miller, as comptroller of the state of New York, to review defendant’s refusal to readjust a tax assessment. On writ and return. Defendant’s determination affirmed.

Action by John M. Murphy against Andrew D. Dernberg. From a judgment of the County Court reversing a judgment of a Justice’s Court in plaintiff’s favor, plaintiff appeals. Judgment of County Court reversed, and judgment of Justice’s Court affirmed. This action is brought in a Justice’s Court to recover the balance due for one-half barrel of whisky sold by the plaintiff through his agent to the defendant.

Action by the Follett Wool Company against the Utica Trust & Deposit Company and others. From an order denying a motion to set aside a verdict, and for a new trial on the minutes, the Trust & Deposit Company appeals.

Action by Robert P. Aníbal and another against the Insurance Company of North America and another. From a judgment in favor of plaintiffs, defendant insurance company appeals.

<p>Certiorari by the people against Nathan E. Miller, as Comptroller of the state of New York and another to review the action of respondent in denying the application of the Attorney General for a revision and readjustment of the account for annual tax on respondent the Bank for Savings in the City of New York.</p> <p>Hearing on a return to a writ of certiorari issued June 28, 1902, to review the determination of the Comptroller of the state denying the application of the Attorney General for a revision and readjustment of the account for annual tax on the par value of the surplus and undivided earnings of the Bank for Savings in the City of New York for the year ending June' 30, 1901. The Comptroller had audited and stated the account for taxes for that year, which imposed a tax of $46,102.53, or 1 per centum upon $4,610,252.92. In ascertaining the amount upon which the tax was to be computed, the Comptroller credited the bank with an item of $1,198,687.95, being the interest or dividends on deposits to and including July 1, 1901, which became due and payable on that day, and which remained in the custody and possession of the bank on June 30, 1901. The Attorney General made an application to the Comptroller for a revision and readjustment of such account for taxes, claiming that said sum of §1,198,687.95 was properly taxable, and that there should be added to the tax on account thereof the sum of §11,986.88. The Comptroller granted a hearing upon such application and the Attorney General presented his evidence in support thereof. Thereafter the Comptroller made a determination whereby he denied the application on the ground that he had no authority to increase the assessment theretofore made. The purpose of this writ is to review the determination so made. The Bank for Savings in the City of New York has been made a party defendant.</p>

Certiorari by the people of the state of New York, upon the relation of the Bank for Savings in the City of New York, against Nathan L. Miller, as Comptroller of the state of New York, to review the Comptroller’s determination in denying relator’s application for a revision of its tax assessment. On writ and return.

Action by Jonathan McCoy and others, as executors, etc., of the estate of John Boyd Eliot, against the Mutual Reserve Life Insurance Company. From an order vacating an order for the examination of defendant’s officers before trial, plaintiffs appeal.

<p>1. Costs—New Trial.</p> <p>A judgment for plaintiff was reversed by the Appellate Division unless he reduced it to a sum named, in which case it was affirmed, without costs. A new trial was subsequently ordered by the Court of Appeals, with costs to abide the event. Held, that plaintiff, on succeeding therein, and on defendant’s appeal to the appellate court, is entitled to the costs of a new trial and of the appeal.</p>

In the matter of proving the last will and testament of Julia A. Anderson, deceased. From an order of the .surrogate, granting to William H. Corbin, sole executor, an open commission to take testimony, the contestant, Alvin E. Anderson, appeals.

<p>1. Vendor and Purchaser—Payment to Attorneys—Recovery.</p> <p>Plaintiff contracted to purchase real estate from L. by an agreement requiring him to pay $500 at the time of its execution. Plaintiff's attorney paid such sum to defendants, who were L.’s attorneys. Thereafter L. refused to complete the contract. HeW, that the amount was paid to defendants in their representative capacity only, and they were not liable to plaintiff for the return thereof.</p> <p>2. Same—Judgment—Conclusiveness.</p> <p>Where, in an action for breach of a vendor’s contract for the sale of land, the court, at the instance of the vendor’s attorney, charged that plaintiff was not entitled to recover earnest money paid, in that action, a judgment for plaintiff therein did not preclude the maintenance of a subsequent action against the vendor for the recovery of such earnest money.</p>

Mandamus by the people of the state of New York, on the relation of George W. Miller, against James Dick and others, as the board of inspectors of the First Election District of the Second Ward of the city of Ithaca, and others. From a judgment for relator entered on a verdict directed at trial term, respondents appeal. An alternative writ of mandamus was issued, and an issue of fact was joined which was directed to be tried by a jury.

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

<p>Appeal from Special Term, New York County.</p> <p>Action by David Robinson against Joseph McGinty. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Street Railroads—Injuries to Vehicles—Negligence.</p> <p>In an action for injuries to a horse and wagon in a collision with a street car, evidence as to the motorman’s negligence held to present a question of fact for the determination of the trial judge as a trier of the facts, and not to authorize a finding that the motorman was not guilty of negligence as a matter of law.</p> <p>2. Same—Evidence—Curing Error.</p> <p>In an action for injuries to a horse and vehicle in a collision with a street car, error, if any,, in refusing to permit the motorman to testify as to the purpose of certain “stop” and “slow” signs, was cured, where he was subsequently permitted to testify that every motorman slowed up when he reached a sign of that character, and that witness slowed up at the place where the sign was.</p>

Application by William D. Fitzgerald to compel the delivery to him of the books and papers belonging to the office of clerk of the city of Olean.

Action by J. Stewart Ross, as executor of James F. Gillen, deceased, against the city of New York. From a judgment entered on the report of the referee in favor of plaintiff, defendant appeals.

Action by Alice M. Drew against Hamilton H. Salmon and another. From a judgment for plaintiff, and from an order denying defendants’ motion for a new trial they appeal.

<p>1. Appeal—Second Trial—Law of Case—Insufficiency of Evidence.</p> <p>A decision on appeal that the evidence was insufficient to sustain a cause of action alleged is controlling on a second trial, when the same and no additional evidence was presented on such cause of action.</p> <p>2. Same—Sufficiency of Evidence.</p> <p>A decision on appeal that the judgment could be sustained, were the question of false imprisonment the only one presented, is controlling on a second trial, when the same and additional evidence is introduced to sustain that cause of action.</p>

<p>Appeal from Municipal Court of City of New York.</p> <p>Action by Sallie Booker against Peter F. Reilly. Judgment for defendant, .and plaintiff appeals.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, First District.</p> <p>Action by Frank Schulze against Barbara Gallagher. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Sales—Agreement of Parties—Breach by Seller—Effect.</p> <p>One under contract to construct and furnish a machine which shall suit the buyer’s purposes, who fails to furnish such a machine, has no claim against the buyer on account thereof, nor for materials subsequently furnished in a futile endeavor to perfect it.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by Bertha Casper 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.</p>

<p>Appeal from Surrogate’s Court, Orange County.</p> <p>In the matter of the "transfer tax on the estate of Abram Post, deceased. From an order assessing the tax, the executor appeals.</p>

<p>Action by Andrew R. Baird against James A. Cody and others.</p>

<p>Action by Michael Brennan against Liberato Pinelli. Judgment for plaintiff, and defendant appeals. Affirmed. Frederick W. Hottenroth, for appellant. John R. Halsey, for respondent.</p>

<p>Separate actions brought by Emily R. Caldwell and another, by the Mt. Morris Bank, by Bridget Campbell, by Samuel Henry, and by Ida Tynberg against the New York & Harlem Railroad Company and others. From judgments for plaintiffs, defendants appeal. Reversed. See 71 N. Y. Supp. 1105. I. A. Place, for appellants. C. T. B. Rowe, Thomas P. Wickes, James C. Bushby, and G. C. Lay, for respondents.</p>

<p>In the matter of the petition of Patrick W. Cullinan, as state-commissioner of excise, for an order revoking- and canceling liquor tax certificate No. 4,171, issued to Agnes McCue.</p>

<p>Action by Lizzie S. Cowen against William.W. Rouss. W. J. Townsend, for appellant. B. Steinhardt, for respondent.</p>

<p>Action by George Fleer and another against James A. Cody and others.</p>

<p>Action by Charles Goldstein against Hyman M. Shulman and others.</p>

<p>Action by John J. Hallock against Horace H. Hallock and others.</p>

<p>Action by Antoinette P. Harrison and others against George Wilson and others. From an order opening default, and granting leave to defendant Barker to serve bill of particulars, the said defendant appeals. Modified. J. Rider Cady, for appellant. J. Woolsey Shepard, for respondents.</p>

<p>Action by John Kracht against Henry Brosman.</p>

<p>Action by Jacob Levy against the Grove Mills Paper Company.</p>

<p>Action by Henry W. Leonard and others against Emma L. Jones and others. From a judgment dismissing the ’ complaint, complainants appeal. Affirmed. T. M. Tyng, for appellants. Henry B. Pogson, for respondents.</p>

<p>Action by Seymour Myers, as executor, etc., against the Manhattan Railway Company. F. Allis, for appellant. W. G. Peckham, for respondent.</p>

<p>In the matter of the petition of the mayor and common council of the city of Schenectady, under section 62 of the railroad law (Heydeeker’s Gen. Laws, p. 3291) and chapter 376, p. 968, Laws 1902, as to changing certain grade crossings of the New York Central & Hudson River Railroad and the railroad operated by the Delaware & Hudson Company in that city from grade to undercrossings.</p>

<p>Action by Edward Markel against Robert Gummer.</p>

<p>Action by Mary Agnes O’Donohue and Isabella Amy against John F. Cronin and New-bold T. Lawrence, executors, etc.</p>

<p>Action by the Ocean Causeway of Lawrence, Long Island, against Frederick L. Gilbert.</p>

<p>Action by Alvin F. Nims against Edwin A. Merritt, Jr., and others.</p>

<p>Frederick Wagner was convicted of arson, and appeals. Affirmed. See, also, 75 N. Y. Supp. 950. Lewis Stuyvesant Ckanler, for appellant. Robert C. Taylor, for the People.</p>

<p>Action by Henry Page against Bernard Naughton and Daniel F. McMahon.</p>

<p>Action by Alvin Richtmyer against Marquis A. Lasher and another.</p>

<p>Action by John H. Rourke and another against the Elk Drug Company and others.</p>

<p>Action by Solomon Rosenstein and another against the Traders’ Insurance Company of Chicago.</p>

<p>Action by Richard Sandiford against the town of Hemp-stead and others.</p>

<p>Action by William H. Slade against Gertrude A. Hale, as executrix, etc., and individually.</p>

<p>Action by Rosa Serwer against Morris Serwer.</p>

<p>Action by William J. Smith against Harry G. Barber, impleaded with Pansy B. Pritchard.</p>

<p>Action by Barnard L. Steefel and Joseph L. Steefel against Jacob Rothschild.</p>

<p>Action by August C. Tanke against the West Shore Railroad Company and the New York Central & Hudson River Railroad Company.</p>

<p>Action by Elisha W. Visgar against Franklin H. Lathrop, as administrator, etc. Judgment for plaintiff, and defendant appeals. Judgment modified, and, as modified, affirmed.</p>

<p>Action by Frank A. Weddigan and another against William F. Whiting.</p>

<p>Action by Francis X. Zapf against Lulu N. Carter.</p>