Volume 83 — New York Appellate Division Reports

<p>Appeal by the defendants, August Kress and another, doing business under the name of August Kress & Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of December, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendants’ demurrer to the second cause of action in the plaintiff’s amended complaint.</p>

Appeal by the plaintiff, Henry Bookman, an infant, by John Bookman, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 5th day of August, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Nassau Trial Term.

Appeal by the plaintiff, John W. Whaley, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 3d day of February, 1903, denying plaintiff’s motion, for leave to amend his complaint.

<p> Evidence—claim that a certified check represented a loan, defense that it was given in exchange for the money—proof of the custom of a police department to take cash for licenses to rebut testimony that an officer of the department stated that it required a certified check. </p> <p>In an action brought to recover the sum of $150 which the plaintiff claimed she had loaned to the defendant in order that he might obtain therewith a concert hall license from the police department of the city of New York, it appeared that the concert hall license was procured by the defendant with the plaintiff's certified check. The plaintiff claimed that this check represented a loan, while the defendant contended that the check was given to him by the plaintiff in exchange for $150 in cash. In explanation of his conduct in presenting a certified check instead of cash to the police department, the defendant testified that an officer in such department informed him that the department would require him to present a certified check.</p> <p>Held, that it was competent for the plaintiff, in rebuttal, to prove by an officer of the police department that it was the custom of such department to take cash payments in preference to checks certified or uncertified, and that the refusal of the court to admit such evidence constituted reversible error.</p> <p>Bartlett and Jenks, JJ., dissented.</p>

Appeal by the defendant, James Butler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of May, 1902. upon the verdict of a jury for $470, and also from an order entered in said clerk’s office on the 14th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Yonkers Railroad Company, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 15th day of September, 1902, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 6th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the National Sugar Refining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of April, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 17th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Samuel G. Cohn and another, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 13th day of May, 1902.

Appeal by the defendant, the Yonkers Railroad Company, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered on the 8th day of November, 1902, upon the decision of the court, a jury having been waived.

Appeal by the plaintiff, John Niederstein, Jr., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 5th day of November, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the defendant’s demurrer to the plaintiff’s amended complaint.

Appeal by the plaintiff, Frank Wolf, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 8th day of Hay, 1902, setting aside a verdict in favor of the plaintiff for $1,500, and granting the defendant’s motion for a new trial.

Appeal by the defendant, The Few York Flerald Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Westchester on the 29th day of October, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the plaintiffs’ complaint.

Appeal by the defendant, the Nichols Chemical Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of July, 1902, upon the verdict of a jury for $4,900, and also from an order entered in said clerk’s office on the 18th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 6th day of November, 1902, directed to the board of supervisors of the county of Westchester, requiring them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in auditing the relators’ two bills for detective services.

Certiorari issued out of the Supreme Court and attested on the 14th day of May, 1902, directed to H. Fremont Yandewater and others, individually and as members of the town board of the town of Hyde Park, county of Dutchess and State of New York, and to Walter R. McCurdy and others, individually and as commissioners of highways of the said town, requiring them to certify and return to the office of the clerk of the county of Dutchess all and singular their proceedings had in…

Appeal by the defendants, H. Fremont Yandewater and others, individually and as members of' the town board of the town of Hyde Park, county of Dutchess and State of NewYork, and Walter R. McCurdy and others, individually and as commissioners of highways of said town, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Dutchess on the 23d day of July, 1902, denying the defendants’ motion to quash a writ…

Appeal by the plaintiff, Edward C. Beirne, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 23 d day of March, 1903, directing the plaintiff to furnish a bill of particulars.

Appeal by the defendants, Charles IT. L. Smith and others, as -executors, etc., of Thomas C. Smith, deceased, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 12th day ■of March, 1902, granting the plaintiff’s motion to set aside the verdict of a jury in favor of the defendants and for a new trial of the action:

<p>Specific performance—a lot which extends ten feet into a street as laid down on a map — a street on which a lot is hounded, held to he the street as laid down on a map and not as it actually exists.</p> <p>A contract for the sale of land described the premises as follows: “all that certain plot of ground with the buildings thereon erected, situate, lying and being on the northeast corner of Borden avenue and Bast avenue, in the Borough of Queens and City of New York, being one hundred (100) feet wide in front on Borden avenue and in the rear, and one hundred and twenty-five (125) feet wide in front on Bast avenue and in the rear.”</p> <p>Borden avenue, as laid out on a map filed many years prior to the making of the contract, was designated as a street eighty feet in width, but the avenue as actually created and paved was only sixty feet in width. The premises contracted to be sold, treating them as bounded by Borden avenue as laid out on the map, were only one hundred and fifteen feet deep, the remaining ten feet being within the bed of the avenue as it was laid out on the map, but not within the bed of the avenue as actually created.</p> <p>Held, that the vendee could not be required to specifically perform the contract of sale;</p> <p>That the only Borden avenue in existence was the Borden avenue laid out on the map, and that the vendor could not perform the obligation imposed upon him by the contract except by conveying to the vendee a lot one hundred and twenty-five feet deep bounded on Borden avenue as it was laid out on the map.</p>

<p> Agreement by the father of an illegitimate child to pay certain money to the mother thereof—it is violated by her inducing the institution of bastardy proceedings against him. </p> <p>The reputed father of an illegitimate child made an agreement with the mother ' thereof by which he agreed to pay her “for the period of two years from the ( date hereof, the sum of five (5) dollars a week payable weekly for the support of the said Tilly Schnurr and that of the child with which she is now pregnant, and further hereby agrees if said child shall live longer to suitably provide for ’ its support, and further to pay the expenses of the approaching confinement. : And the said second party agrees not to make any further claim of any hind ; upon said first party provided he faithfully complies with and performs the aforesaid agreement on his part.”</p> <p>The mother of the child simultaneously executed to the reputed father a general release which was conditioned upon the faithful performance of the agreement by him.</p> <p>Before the expiration of the two years mentioned in the agreement, and while the reputed father was not in default thereunder, the mother induced the proper poor authorities to institute bastardy proceedings against the reputed father. These proceedings were compromised by the poor authorities, upon ' the payment, by the reputed father, of the sum of §300. The poor authori- . ties executed a release to the reputed father of all liability to the county and ■ paid the §800 over to the mother of the child.</p> <p>Held, that, by procuring the institution of the bastardy proceedings, the mother of the child had violated that provision of the agreement by which she undertook not to make “any further claim of any kind ” against the reputed father, • and that she could not thereafter maintain any action against him upon the agreement.</p>

Appeal by the defendant, the Compagnie Francaise De Navigation á Vapeur, Cyprien Fabre et Compagnie, from a judgment of the Supreme Court in favor of the plaintiff, entered'in the office of the clerk of the county of Kings on the 26th day of June, 1902, upon the verdict of a jury, and also from an order bearing date the 10th day of July, 1902, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William R. Pitt, from an interlocutory-judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the cleric of the county of Westchester on the 9th day of October, 1902, upon the decision of the court, rendered after a. trial at the Westchester Special Term, overruling the defendant’s, demurrer to the complaint.

Cross-appeals by the plaintiff, Sylvester L. Malone, as administrador, etc., of Sylvester Malone, deceased, and by the defendant, Saints Peter and Paul’s Church, Brooklyn, E. D., from an order of the Supreme Court, made at the Kings County Special Term and ■entered in the office of the clerk of the county of Kings on the 18th day of December, 1902, denying the defendant’s motion for a reference of all the issues and granting the defendant’s motion for leave to renew its…

<p> Unsealed written contract —proof of a subsequent oral agreement firing the time of payment thereunder. </p> <p>Where an unsealed written contract for the performance of certain work for a specified sum is silent as to the time or manner of payment, evidence of an oral agreement made subsequent to the execution of the written contract, but before the work was begun, fixing the time and the manner of payment, is admissible.</p>

<p>Appeal by the plaintiff, John S. Havens, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Suffolk on the 15th day of April, 1902, upon the report of a referee.</p>

Appeal by the plaintiff, William Muhlens, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 22d day of November, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Appeal "by the defendant, The Lincoln National Bank of the City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of December, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the said defendant’s demurrer to the plaintiff’s complaint.</p>

<p>Appeal by the defendant, Catherine Donovan, individually and as executrix, etc., of Daniel Donovan, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 25th day of November, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.</p> <p>This action is brought by the plaintiff as successor in interest of James H. Began, deceased, under the provisions of the agreement referred to in the opinion to obtain an accounting with respect to all moneys which the defendant Catherine Donovan, individually and as executrix of Daniel Donovan, deceased, has received or is entitled to receive out of the estate of Mary Johnson, deceased, and to compel the said Catherine Donovan, individually and as executrix of Daniel Donovan, deceased, to pay over to the plaintiff twenty-five per cent of all sums received by her on the settlement of the estate of the said Mary Johnson, and to compel the trustees who managed such settlement to pay over to the plaintiff twenty-five per cent of all moneys in their hands belonging to the said Catherine Donovan, individually and as executrix of Daniel Donovan, deceased.</p>

Appeal by the defendant, the Central Crosstown Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 1st day of October, 1902, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 29th day of September, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Queens County Water Company, from an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Queens on the 27th day of January, 1903, denying the plaintiff’s motion for an injunction pendente lite.

<p>Village Law■—what direction of milage trustees to construct a sidewalk is not the consent required by lection 163 of the Village Law.</p> <p>Section 161 of the Village Law (Laws of 1897, chap. 414) provides that the hoard of trustees of a village may construct sidewalks upon the streets of the village, “wholly at the expense of the village, or of the owners or occupants of the adjoining land, or partly at the expense of each.”</p> <p>Section 163 of the Village Law provides: “Whenever the owner or occupant of lands adjoining a street shall, with the consent of the board of trustees, construct a sidewalk of stone, cement, brick or other similar material along the line of such land, of the width of four feet or more, and of the value of at least four dollars per lineal rod, the board of trustees * * * may pay to such owner or occupant from the street fund of the current year one-half of the cost of such sidewalk.”</p> <p>The board of trustees of a village, the residents of which had usually constructed stone sidewalks at their own expense, claiming to act under the provisions of section 161, adopted a resolution directing a property owner to construct a flagstone walk four feet wide in front of his premises. Previous to the adoption of this resolution the board had, at the same meeting, passed a resolution providing that the sidewalks in the village should “be laid by the abutting property owners at the cost of said property owners as heretofore.”</p> <p>Held, that the resolution directing the construction of a flagstone walk four feet in width did not constitute the consent required by section 162 of the Village Law and entitle the property owner to recover from the village one-half of the cost of constructing the sidewalk.</p> <p>Hirschberg, J., dissented.</p>

Appeal by the defendant, Charles Taylor Harris, from a judgment of the Supreme Court in favor of the plaintiff, bearing date the 30th day of June, 1902, and entered in the office of the clerk of the county of Kings upon the decision of the court rendered at the Kings County Special Term refusing to disturb the verdict of a jury, rendered after a trial at the Kings County Trial Term, and also from an order bearing date the 17th day of June, 1902, and entered in said clerk’s…

<p>Appeal by the defendant, Isaac Levine, from a judgment of the Municipal Court of the city of Rew York, .borough of Brooklyn, in favor of the plaintiffs, entered on the 15tli day of December, 1902.</p>

Appeal by the defendant, The Gould Storage Battery Company, from a judgment of the Municipal Court of the city of New York’ borough of Brooklyn, in favor of the plaintiff, entered on the 14th day of March, 1902.

<p>Appeal by the Village of Suffern from an order of the Supreme Court, made at the Rockland Special Term and entered in the office of the clerk of the county of Rockland on the 2d day of July, 1901, confirming the report of commissioners appointed to appraise the damages alleged to have been sustained by the petitioner by reason of a change of grade,' with notice of an intention to bring up fox-review upon such appeal axx ox-der beax-ing date the 18tlx day of March, 1899, and entered in said clerk’s office, appointing said commissionei's.</p>

Appeal by the defendant, Robert C. Habenicht, from a judgment of the Municipal Court of the city of! New York, borough of Brooklyn, in favor of the plaintiff, entered on the 14th day of January, 1903. *

<p>Appeal by the defendant, William J. Belford, from a judgment ■of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 22d day of December, 1902.</p>

Appeal by the plaintiff, the Long Island Bottlers’ Union, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of March, 1902, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 24th day of March, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Res adjudicata—that defense must be raised in summa/ry proceedings by answer, not by motion — what objections may be raised by motion.</p> <p>In a summary proceeding, instituted by a landlord against a tenant in the Municipal Court of the city of New York, to recover possession of premises for non-payment of rent, the tenant cannot raise the defense of res adjudicata by motion, but must do so by answer.</p> <p>Semble, that the defendant can only raise, by motion, objections to the jurisdiction of the court, the sufficiency of the petition, notice and other cognate matters.</p>

<p>Taxpayer's action —meaning of the word “ otherwise" in the phrase “ By collusion or otherwise"—illegal audit by a board consisting of three members — when a, complaint charging it is demurrable —allegations that certain acts a/re fraudulent and collusive — when mere conclusions.</p> <p>The word “otherwise,” as used in the Taxpayers’ Act (Laws of 1892, chap. 301) in the phrase “By collusion or otherwise, contracting, auditing,” is to be. interpreted according to the rule of ejusdem generis. It does not mean any auditing, but an audit due to some sinister or improper motive and in violation, of the public trust.</p> <p>The allegation that a member of a board of supervisors presented his own fraudulent and illegal bills to the board of supervisors, which consisted of three members, does not establish that an audit thereof by the hoard, of which; he was a member, was “ by collusion or otherwise,” within the meaning of the Taxpayers’ Act.</p> <p>When the complaint in an action brought by a taxpayer of a county against the board of supervisors thereof, which consisted of three members, two of whom constituted a quorum, to have them declared personally liable for the amount, of certain illegal claims presented by one of their number and audited by the-board, is demurrable as to the two defendants who did not present the illegal claims, on the ground that it does not allege facts showing that each of such other defendants took part in the auditing of the illegal claims and that each, of them knew that the claims were fraudulent, considered.</p> <p>Allegations contained in the complaint in such an action that the acts of the defendants were fraudulent or collusive are conclusions, and not averments of issuable facts.</p>

Appeal by the defendant, William G. Dillingham, from a final order of the Municipal Court of the city of New York, dispossessing the defendant in summary proceedings.

Appeal by the defendant, Donald McLean, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 1st day of October, 1902, upon the report of a referee.

<p>An accounting by an administratrix — when a creditor' is entitled to compel it although the estate has been distributed.</p> <p>An order of the Surrogate’s Court, denying a motion made by a judgment creditor of a decedent to compel the latter’s administratrix to render an account of her proceedings, will be reversed, when the only reason for denying relief to the judgment creditor is an affidavit submitted by the administratrix alleging that four years and a half have expired since the issuance of the letters of administration; that the administratrix did not know of the existence of the judgment until the service of the citation and that the estate has been entirely distributed, particularly when it does not appear that the administratrix advertised for claims or made any other effort to ascertain the existence thereof.</p>

Appeal by the plaintiff, Frank H. Hebblethwaite, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day- of April, 1903, as denies the plaintiffs motion for a resettlement of the decision and an interlocutory judgment entered herein, .to the extent set forth in his notice of motion.

<p>Order extending time to answer— order to show cause, made hy a justice of the Supreme Court, when invalid— a Special Term order in a Country Court action is' unauthorized.</p> <p>The defendant in an action brought in the County Court procured, on November 7, 1902, from a justice of the Supreme Court an ex parte order extending the time to answer for twenty days. The plaintiff then obtained from a justice of-the Supreme Court an order under the caption of the County Court requiring the defendant to show cause “ ata term of this court ” why the previous order should not be amended so as to cause the date of issue to be November 7, 1902.</p> <p>Subsequently such Supreme Court justice made an order under the caption of the County Court which recited that the motion to modify the order of November seventh had come on to be heard on the order to show cause and directed that the order of November seventh be modified by providing, * That defendant have until the 20th day of November to serve said answer upon condition that he stipulate on or before that date to accept one week notice of trial.”</p> <p>November 28, 1902, a third order was made, entitled at a Special Term of the Supreme Court, held as therein stated by the Supreme Court justice who made the former orders, followed by the words " County Court, Suffolk County.” The order, after reciting, ‘ ‘ a motion coming on to be heard why the order made and entered herein, vacating or modifying the extension of defendant’s time to answer * * * should not be vacated, and for other relief,” ordered that the previous orders, either ex parte or upon notice, theretofore made, should be vacated and set aside and that the defendant have until November 29, 1902, to serve his answer on condition that he would stipulate to let the notice of trial theretofore served stand. This order was marked ‘ ‘ enter ” and was subsequently entered in the county clerk’s office.</p> <p>Meld, that the order of November 7,1902, was valid under section 354 of the Code of Civil Procedure;</p> <p>That the order made upon the order to show cause was invalid for the reason that the last-mentioned order had a County Court caption and directed the defendant to show cause “ at a term of this court; ”</p> <p>That such order was also invalid for the reason that on a motion to restore the date of issue, the justice could not, even on a default, shorten the defendant’s time to answer upon a stipulation to accept a short notice of trial;</p> <p>That the order of November 28, 1902, was also invalid as the Special Term of the Supreme Court had no jurisdiction under the statute (Code Civ. Proc. §§ 354, 772) to make an order of that character in a County Court action;</p> <p>That, under the circumstances, all of the orders considered should be reversed with the exception of the order of November 7, 1902.</p>

Appeal by the defendant, Henry C. Alger, from that part of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of Hovember, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, which adjudges that the defendant, Henry C. Alger, pay to the plaintiff any deficiency arising on the foreclosure of one of the mortgages described in the complaint.

Appeal by the plaintiff, Ernst A. T. Bjerrum, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 27th day of March, 1902, upon the verdict of a jury in favor of the plaintiff, rendered for nominal damages by direction of the court, and also from an order entered in said clerk’s office on the 4th day of April, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

<p> Guaranty of the payment of rent&emdash;when a consideration therefor is sufficiently stated,&emdash;the lease need not specify the term thereof. </p> <p>The complaint in an action alléged that on June 1, 1900, one John C. Mooney, by a written agreement, hired from the plaintiff, and the plaintiff leased to said Mooney, certain property at the yearly rental of $420, payable in equal monthly installments.</p> <p>It further alleged, “That the defendant, James W. Husted, in consideration of the aforesaid letter* and of one dollar paid by the plaintiff, as security for the payment of the said rent, then and there subscribed and delivered to the plaintiff an agreement, in writing, of which the following is a true copy, to wit: ‘ In consideration of the letting of the premises within mentioned to the within named John 0. Mooney, and the sum of one dollar to be paid to the said party of the first part, I do hereby covenant and agree to and with the said party of the first part above named, and his legal representatives, that if default shall at any time be made by the said John O. Mooney in the payment of the rent and the performance of the covenants contained in the within lease on his part to be paid and performed, that I will well and truly pay the said rent or any arrears thereof that may remain due to the said party of the first part, and also all damages that may arise in consequence of the non-performance of said covenants or either of them without requiring notice of any such default from said party of the first part. Witness my hand and seal this 7th day of June in the year one thousand nine hundred. James W. Husted (L. S.) Witness, John C. Mooney.’ ”</p> <p>The complaint also alleged that Mooney had not paid the rent due from June 1, 1900, to February 1, 1901, inclusive, and that, by reason thereof, the defendant was indebted to the plaintiff in the sum of $315.</p> <p>Held, that the complaint was not demurrable;</p> <p>That the complaint set forth an actual and valid contract of letting between the plaintiff and Mooney;</p> <p>That the contention that because the guaranty was dated subsequent to the commencement of the term there was no consideration to support it, was completely answered by the fact that the guaranty was alleged to have been executed in consideration of the letter* and of the payment of one dollar by the plaintiff;</p> <p>That while the obligee was not mentioned in the complaint with clearness or particularity, his identity could be spelled out of the complaint with sufficient definiteness to defeat a demurrer;</p> <p>That the fact that the lease, as alleged in the complaint, did not specify the term thereof, did not render it void or the contract of guaranty unenforcible;</p> <p>That as the complaint alleged the existence of a tenancy, the nature of such-tenancy or the term thereof was immaterial.</p>

Appeal by the defendant, Michael J. Walsh, mayor of the city of Yonkers, county of Westchester, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of October, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, restraining the defendant from signing certain warrants, with notice of an intention to bring up for review upon such…

<p>Parol evidence—when competent in connection with a written contract—sickness of a servant justifying his discharge— agreement to pay another a consideration for entering into a contract.</p> <p>To permit the introduction of parol evidence in connection with a written contract, the.writing must not appear upon an inspection to be a complete contract embracing all the particulars necessary to make a perfect agreement and designed to express the whole arrangement between the parties, for, in such a case, it is conclusively presumed to embrace the entire contract.</p> <p>The fact that a servant, employed for a term of five years, has, on several occasions, been prevented by illness from performing the duties of his employment for two or three weeks at a time, justifies the master in discharging him.</p> <p>Quaere, whether an agreement to enter into a contract will support a promise to pay a consideration therefor independent of the consideration supporting the principal contract.</p>

Appeal by the plaintiff, James L. Reynolds, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 21st day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury at the Westchester County Court.

Appeal by the defendant, the Standard Rock Candy Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 14th day of May, 1902, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term. Judgment affirmed, with costs, upon the opinion of Mr. Justice Rich at Trial Term.

Cross-appeals by the plaintiff, Joshua C. Sanders, and by the defendants, William A. Carley and another, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 31st day of March, 1902, upon the decision of the court rendered after a trial'at the Kings .County Trial Term, a jury having been waived. Judgment affirmed, without costs to either party on the opinion of Mr. Justice Gabeetson at Trial Term.

<p>Appeal by the plaintiff, John W. Whiteley, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 26th day of October, 1902, setting aside the verdict of a jury in favor of the plaintiff, and granting the defendant’s motion for a new trial.</p> <p>Section 640d of the Penal Code, which is referred to in the opinion, provides as follows :</p> <p>“ In cities of the first and second class, any person who shall offer for sale any real property without the written authority of the owner of such property, or of his attorney in fact, appointed in writing, or of a person who has made a written contract for the purchase of such property with the owner thereof, shall be guilty of a misdemeanor.”</p>

Appeal by the defendant, Jacob W. Hammer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of February, 1903, denying said defendant’s motion for an order of reference to ascertain the damages sustained by him by reason of an injunction order theretofore obtained in the action.

<p>Libel — an advertisement of “ the experience of a giddy typewriter," accompanied ly the plaintiff’s picture—it does not charge “ an unchaste and indecent experience” —where by innuendo a particular meaning is attached to a writing, libelous per se, it must be established.</p> <p>A magazine advertisement stating, “Illustrated new book. Up-to-date. The experience of a giddy typewriter girl in New York. Typewritten. GOOD is no name for it. Sent in plain wrappers, postpaid, on receipt of 35c in silver or stamps. Dell Book Co., 119 Flournoy St., Chicago,” will not support an innuendo that the advertisement intended to charge a woman whose picture accompanied it with having been “the subject of an unchaste and indecent experience.’’</p> <p>A plaintiff in an action of libel who, by an innuendo, attributes a particular meaning to the alleged libelous article cannot recover, unless he establishes that the publication is susceptible of that interpretation, even though the publication was, in and of itself, libelous per se.</p> <p>Patterson and Laughlin, JJ., dissented.</p>

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of December, 1902, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 24th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Andrew Davies and others, from an. interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kew York on the 13th day of January, 1903, upon the decision of the court, rendered after a trial at the Kew York Special Term, overruling the said defendants’ demurrers to the amended complaint.

Appeal by the defendants, the A. D. Farmer & Son Type Founding Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of November, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, George W. Thomas, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, in favor of the plaintiff, entered on the 31st day of January, 1900, convicting the defendant of tlie crime of grand larceny in the first degree.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of December, 1902, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 4th day of December, 1902, denying the defendant’s motion for a new trial made ujjon the minutes.

<p>Injunction to restrain the completion of apart of the New York subway, where, withy out authority, the original plan of construction has been changed, denied— laches on the part of the plaintiff property owner—prejudice to important public interests.</p> <p>The action of the chief engineer of the hoard of rapid transit commissioners in assuming, without the consent of the property owners or the approval of the court, to change the location of the easterly tunnel under Park avenue, in the city of New York, from the location fixed by the plans approved by the court,' viz., thirty-seven feet and six inches from the building line of the property on the east side of the avenue to a point seven feet west of such building line, was unauthorized, and if, before any substantial progress had been made in the work of excavating the tunnel, an owner of property abutting on the east side of Park avenue had brought an action to enjoin the construction of the tunnel, the court would have been justified in restraining the further prosecution of the work until the necessary authority for changing the location of the tunnel had been obtained.</p> <p>Where, however, the abutting owner does not commence such an action until after the excavation of the tunnel has been substantially completed, the court is justified, in the exercise of its judicial discretion, in refusing to grant a preliminary injunction, in view of the enormous public interests involved and of the fact that such an injunction, while it would affect most seriously those engaged in the construction of the tunnel, would be of no material advantage to the abutting owner.</p>

<p>Action to rescind a subscription for corporate stock brought against the corporation and two officers thereof by whose false representations the subscription was induced — what misrepresentations are not mere statements of opinion — allegation as to the value of the stock — when the officers as individuals are not necessary parties — what complaint states no cause of action against them — demurrer for a misjoinder of ca/uses of action.</p> <p>The complaint, in an action brought against the Telephone, Telegraph and Cable Company of America and one Maloney and one Latta, alleged that Latta was a director and the president of the defendant corporation, and that Maloney was a director and a member of the executive committee thereof; that these two defendants were the chief promoters of the corporation; that, in order to induce the plaintiff to subscribe to the stock of the corporation, Latta and Maloney represented to him that the defendant corporation had acquired and then owned another corporation; that, with like-intent, they further represented that a third corporation was ready to consolidate with the defendant corporation, and that the consolidation plans had reached such a stage that their consummation was merely a matter of figures; that each of said representations was false and fraudulent and was known to be so by the defendants Maloney and Latta; that, in reliance upon such representations, the defendant subscribed for 10,000 shares of the capital stock of the defendant corporation and paid therefor to the defendant corporation the sum of $100,000.</p> <p>The complaint further alleged that the plaintiff had been damaged in the sum of $100,000, and that, because of the fraud, the plaintiff had elected to rescind his subscription to the capital stock and had made tender of surrender of the certificates thereof to the defendant corporation. He demanded, as relief, that the subscription agreement be'canceled and rescinded; that the defendant corporation be directed to pay to him the sum of $100,000, with interest, and that the plaintiff recover from the individual defendants, for the damages sustained by him, the sum of $100,000, with interest.</p> <p>Held, that the representations alleged to have been made to the plaintiff were representations of fact and not mere statements of opinion, expectation or belief;</p> <p>That the complaint stated a cause of action against the corporation entitling the plaintiff to rescind the subscription and to recover from the corporation the money paid thereon;</p> <p>That, in order to secure this relief, it was not necessary for the plaintiff to allege that the stock subscribed for by him was not as valuable as it was at the time of his subscription;</p> <p>That the individual defendants were neither necessary nor proper parties to an action to rescind the subscription and recover from the corporation the money which the plaintiff had paid thereon;</p> <p>That, as the complaint did not allege that the individual defendants had received any benefit from the plaintiff’s subscription to the stock of the defendant corporation, or that the stock was worthless or of less value than it would have been had the alleged fraudulent representations been true, the complaint did not state a cause of action against the individual defendants;</p> <p>That if the complaint stated a cause of action against the individual defendants as well as one against the defendant corporation, it would be demurrable on the ground that such causes of action could not be properly united in the same complaint;</p> <p>That as the complaint stated but a single cause of action against the defendant corporation, the mere fact that it contained some expressions which might be construed as evidencing an intent to state a cause of action against the individual defendants, did not render it demurrable on the ground that two causes of action were improperly united therein.</p>

Appeal by the defendants, Anna Walter and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25 th day of March, 1903, as permits the service of an amended complaint upon payment to the defendants of ten dollars costs, requires the defendants to answer within five days, and provides for the restoration of the case to the day calendar.

<p>Valet — intoxication is a sufficient ground for his discharge — it need not be set up in connection with a counterclaim — competency, in an action for wages, of conxersations between the xalet and his attorney.</p> <p>The complaint in an action brought to recover damages for the breach of a verbal contract, by which the defendant was alleged to have employed the plaintiff as a valet during the latter’s lifetime, averred.that from the time of the plaintiff’s employment until the time of his discharge he duly performed the duties of his employment, and that he was discharged without cause.</p> <p>The answer alleged, among other things, that the plaintiff, by reason of intoxication, had become unfitted to discharge the duties of his employment properly and efficiently, and was discharged for this reason by the defendant.</p> <p>Held, that (here was annexed to the contract of employment an implied condition that the plaintiff would properly conduct himself during its continuance;</p> <p>That his intoxication was a sufficient ground for his discharge;</p> <p>That it was not essential to the defendant’s right to avail himself of the defense of intoxication that such defense should be set up in connection with a counterclaim or set-off for damages resulting therefrom.</p> <p>Upon the trial it appeared that the plaintiff had written letters to the defendant which were inconsistent with his claim that his contract of employment was to extend during his life. In explanation of his conduct in this respect he testified that he was unaware that a verbal contract was binding until he was so advised by his counsel.</p> <p>Held, that it was improper to allow the plaintiff to state whether he, at any time, made a statement to the counsel, who so advised him, of the facts of his case, and also whether he told his counsel various other things.</p>

<p>Appeal by the plaintiff, the Insurance Press, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 5th day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.</p>

Certiorari issued out of the Supreme Court and attested on the 29th day of March, 1902, directed to John M. Partridge, Commissioner of Police of the Police Department of the City of Mew York, requiring him to certify and return to the office of the clerk of the county of Mew York all and singular his proceedings had in removing the relator from the police force of the police department tif the city of Mew York.

Appeal by the plaintiffs, Oortlandt deP. Field and another, as surviving trustees, etc., of John W. Hamersley, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Hew York on the 29th day of December, 1902, upon the verdict of a jury in favor of the plaintiffs, and also from an order entered in said clerk’s office bearing date the 24th day of December, 1902, denying the plaintiffs’ motion for a new…

<p>Appeal by the plaintiff, Agnes G. Trunkey, from a judgment of the Supreme Court in favor of the defendants Jane B. Van Sant and others, individually and as executors and trustees under the last will and testament of Sarah M. Berlin, deceased, entered in the office of the clerk of the county of New York on the 28th day of February, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

<p> Will—when a trust is created without an express bequest in trust —form of appointment by the Supreme Court of a person to represent it in the execution of a trust, the trustee of which has died. </p> <p>The will of a testator provided, “ To my daughter Melinda, I also give the interest or income as it accrues on Two hundred thousand (§200,000) dollars during her natural life. The said amount to be set apart in such good dividend paying stocks and bonds as may stand in my name at the time of my decease and at the then market value of the same. And at her death I will that the said amount of Two hundred thousand dollars go to her legal issue in equal portions after they severally reach the full age of twenty-one years.”</p> <p>By a codicil thereto he gave his executors power “ to change the stock securities thereof at discretion as a measure of safety,” and directed that the payments of income under the will be tnadé monthly.</p> <p>In an action brought by the executors for a judicial construction of the will, to which all the persons interested in the testator’s estate were made parties, a judgment was rendered directing the executors to provide the §200,000 fund for Melinda P. Schmidt, “by setting apart stocks and bonds now held by the .said executors at the present market value thereof and including therein the one equal half part of the good dividend paying stocks and bonds held by the said executors at the time of the death of the testator at the then market value thereof, and in case of sale of any of such stocks, the stock or cash substituted therefor and that the said executors may change the said stock securities at discretion; that the said executors pay the interest or income arising from such stocks and bonds so set apart to the said Melinda P. Schmidt in monthly' payments during her natural life and after her death that the said executors pay and distribute such stocks and bonds so held and to be retained by them, or such stocks, bonds or other securities as may be substituted by the said executors in place of the securities so to be set apart, to and among the legal issue of the said Melinda P. Schmidt in equal portions after they severally reach the full age of twenty-one years.”</p> <p>In pursuance of this judgment, the executors set apart the §200,000 fund. Thereafter they commenced a proceeding for a final judicial settlement of their accounts as executors. This proceeding, to which Melinda P. Schmidt was made a party, resulted in a decree directing the executors to set apart the §200,000 fund in a separate account in their names as trustees for Melinda P. Schmidt and her children and to account for the same as such trustees.</p> <p>After the provisions of this decree had been carried out, the executors died and Melinda P. Schmidt and her son were appointed administrators with the will annexed of the testator. Such administrators with the will annexed thereupon took into their possession, and thereafter retained without accounting therefor, the stocks and securities constituting the $200,000 fund.</p> <p>In an action brought by a daughter of Melinda P. Schmidt to compel the administrators with the will annexed to account for the property and to have a trustee appointed in place of those named in the testator’s will, it was</p> <p>Held, that the will created a trust in the executors in respect to the $200,000 fund, notwithstanding that it contained no express bequest to such executors in trust;</p> <p>That it was the testator’s intention that, from the time when his estate had become so far settled that his executors could set apart the $200,000 fund, they should act with reference to such fund as trustees and not as executors;</p> <p>That the latter construction was the one placed upon the will by the judgment rendered in the action brought to construe the same;</p> <p>That upon the death of the executors named in the will, the trust devolved upon the Supreme Court pursuant to the statute and that it became the duty of the court to appoint some person to carry out such trust on its behalf;</p> <p>That the person so appointed would not be a substituted trustee, but simply the representative of the court to carry out the trust.</p>

Appeal by the plaintiff, Edward R. Poerschke, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of February, 1903, as directs that the cause be placed on the general calendar for trial at Trial Term.

Appeal by the defendant, Minnie E. Andrews (formerly Minnie E. Crary), as administratrix with the will annexed, etc., of Frank E. Swezey, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of December, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the R. Gr. Packard Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 11th day of February, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the plaintiffs, Hugo E. Boessneck and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of February, 1903, denying the plaintiffs’• motion for a temporary injunction.

Appeal by the plaintiff, Letitia Mumford Geer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of July, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiffs, David Howie and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 14th day of January, 1903, upon an interlocutory judgment entered in said clerk’s office on the 3d day of December, 1902, sustaining the defendant’s demurrer to the plaintiffs’ complaint, with notice of an intention to bring up for review upon such appeal said interlocutory judgment.

<p>Hights of a street railroad company and a pedestrian at a street crossing — what act of a pedestrian, in crossing the street before a carr, is not negligent—when a verdict will be set aside because of the plaintiff’s contributory negligence.</p> <p>The rights of a street railway company and of a pedestrian at a street intersection are equal, but if the pedestrian is negligent in exercising his rights and is injured by a street car, he cannot recover from the street railway company the damages sustained by him, even if the street railway company might have prevented the accident by exercising ordinary care.</p> <p>If a pedestrian reaches a street car track in time to cross it in safety, provided the speed of an approaching car be not increased, he cannot be said to be negligent in proceeding, but if it is apparent to him, or would be to a person of ordinary prudence, exercising ordinary care, that the car will overtake him unless its speed is reduced, it is not a prudent act for him to proceed, even though it be the duty of the motorman of the car to slow down or stop in order to enable him to cross.</p> <p>When the evidence given in an action to recover damages resulting from the death of the plaintiff’s intestate, who was killed while attempting to cross the defendant’s street car track at a street intersection, is such that a judgment entered upon a verdict in favor of the plaintiff should be set aside as against the weight of evidence, considered.</p> <p>Patterson, J., dissented.</p>

<p>Appeal by the plaintiff, Patrick J. Shea, from a final judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 14th day of Hovember, 1902, upon the decision of the court, rendered after á trial at the Hew York Special Term, sustaining the defendant’s demurrer to the complaint, upon the ground that it does not state facts sufficient to constitute a cause of action.</p>

Appeal by the defendant, Josephine B. Olopton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of June, 1902, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Henry C. Pierce, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day of December,. 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 26th day of January, 1903, denying the-defendant’s motion for a new trial made upon the minutes.

<p>Contract, as to insurance to be effected by agents — language, ambiguous as to whether all the principal’s property was covered thereby, held to be subject to explanation by extrinsic evidence.</p> <p>A contract by which the parties of the first part, a firm of insurance brokers, were employed to secure policies of fire insurance for the parties of the second part, contained the following provision: “The said parties of the first part shall procure for the parties of the second part all other and floating casualty and additional insurance which they may require upon any and all property required to be or which may be insured by the parties oí the second part contained and located outside of the premises specifically named hereinbefore at current tariff rates of insurance.”</p> <p>Held, that the language of the quoted clause of the contract was ambiguous and doubtful, and that the question whether the parties of the first part were entitled thereunder to effect insurance on all the property of the parties of the second part, whether situated within or without the State of New York, was open to explanation by extrinsic evidence.</p>

Appeal by the defendant, The City of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of February, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, Lemuel Littlefield, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of November, 1902, upon the verdict of a jury for twenty-five dollars, and also from an order entered in said clerk’s office on the 11th day of November, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Patrick Little, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

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

<p>Motion by the plaintiff, Charles Gmaehle, as administrator, etc., of Charles Gmaehle, deceased, for a reargument of an appeal by the defendants Morris Rosenberg and another from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of December, 1902, denying the defendants’ motion for an order requiring the plaintiff to give security for costs.</p> <p>The appeal was decided in favor of the defendants at the March term of the Appellate Division, and the opinion handed down at that time is reported in 80 Appellate Division, 541.</p>

Appeal by the plaintiff, Delancey Jenks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 11th day of August, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Edward Roach, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of February, 2903, upon the verdict of a jury for $7,500, and also from so much of an order entered in said clerk’s office on the 4th day of February, 1903, as denied the defendant’s motion for a new trial made upon the minutes.

<p>Fraudulent conveyance — the fact that on a sale the vendees require a bond of indemnity against the vendor’s creditors does not show that the sale was fraudulent as to such creditors.</p> <p>Where a resident of the State of New York, who was engaged in business in the States of New York, Pennsylvania and Montana, sends an attorney to Montana for the purpose of selling his Montana business, the fact that the legal adviser of the vendees of such business suggested a possibility of complications arising out of claims o'f creditors and advised them to secure a bond indemnifying them against such claims, and that, in obedience to this advice, they did secure such a bond of indemnity from their vendor, is not sufficient to justify a finding that the vendees knew or had reason to know that the vendor was at the • time insolvent or that the transfer was made with intent to hinder, delay and defraud his creditors.</p> <p>Patterson and LaughliN; JJ., dissented.</p>

Appeal by the plaintiff, Solomon Jacobs, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Bew York on the 22d day of December, 1902, upon the decision of the court, rendered after a trial at the blew York Special Term, dismissing the complaint upon the merits and canceling and discharging of record a bond and mortgage given to the plaintiff by certain of the defendants.

Appeal by the defendant, the Independent Match Company, from a final judgment of the Supreme .Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 16th day of October, 1902, upon the verdict of a jury.

Appeal by the plaintiff, Gottfried August Schulze, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of January,. 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.

Appeal by Solomon Loeb, as sole surviving trustee under the will of William Meyer, deceased, and others, from an order of the Surrogate’s Court of Mew York county, entered in said Surrogate’s' Court on the 6th day of January, 1903, affirming an order entered in said Surrogate’s Court on the 18th day of October, 1902, upon the report of an appraiser determining the transfer tax upon a certain trust fund, with notice of an intention to bring up for review upon such appeal an…

<p>Commissions of a real estate agent — competency, as to the motive for not talcing a loan, of proof that, pending negotiations therefor, the owner sold the properly — duty to move to strike out testimony or that the jury disregard it, where subsequent proof makes it incompetent—proof as to why the defendant made a certain statement and as to negotiations apparently tm'minating, held to be improper.</p> <p>In an action brought to recover a commission alleged to have been earned by the plaintiff for procuring, at the defendant’s request, a loan of $250,000 to he secured by a bond and mortgage, it appeared that the plaintiff procured the loan, but that the defendant refused to accept it.</p> <p>The plaintiff testified that the contract of employment was absolute and unqualified, while the defendant testified that the employment was conditioned upon the Farmers’ Loan and Trust Company, which held a mortgage upon the premises in question for $125,000, being willing to accept payment of the loan before maturity; that the Farmers’ Loan and Trust Company was unwilling to do this and that it was owing to its refusal that the defendant declined the loan.</p> <p>Held, that it was proper to ask the defendant, on cross-examination, whether he had sold the property in question or made a contract for the sale, just about the time when the contract for the loan was to have been closed;</p> <p>That such evidence boro upon the credibility of the defendant’s testimony by showing that he had a motive for refusing to accept the loan after it had been arranged through the plaintiff’s efforts;</p> <p>That the propriety oí the question was not affected hy the fact that the defendant’s subsequent testimony established that the property was sold after the negotiations for the loan had terminated, and that., consequently, the supposed motive for declining to accept the loan did not exist;</p> <p>That it was the duty of the defendant, when that testimony was given, to make a motion to strike out all the testimony relating to the sale of the property or to ask the court to instruct the j ury to disregard it.</p> <p>Upon the trial the defendant testified that he told the attorney for the party whom the plaintiff had induced to make the loan that he would not sign any contract for the loan until the Farmers’ Loan and Trust Company had agreed to accept payment of its mortgage; that he also told him, either on that day, or a day or two after, that he had notified the Farmers’ Loan and Trust Company that the negotiations for the payment of its mortgage had terminated and that he would not pay such mortgage until its maturity.</p> <p>He was then asked, “ What caused the making of that statement, what transpired between you and Mr. Payne (the plaintiff) or Mr. Lamed, that led you to make the statement to the Farmers’ Loan and Trust Company that the transaction had terminated ? ”</p> <p>He was also asked, “Then in the course of the negotiations between you and Mr. Larned or Mr. Payne for the making of this loan, was there any point at which they were apparently terminated ? ”</p> <p>Held, that both the questions were objectionable;</p> <p>That the first question called for incompetent matter and that the second question was immaterial.</p> <p>Van Brunt, P. J., and Laughlin, J., dissented.</p>

<p>Standard of comparison of handwriting'— the standard must bepi’oved to be genuine to the satisfaction of the court — when the proof presents a question of fact.</p> <p>In an action brought to enjoin the maintenance and operation of an elevated railroad, the defendants offered in evidence a consent to the construction of the railroad purporting to have been signed in October, 1875, by one John Walther, who was at that time the owner of the premises in question. The only-witness called to prove the genuineness of the signature attached to the consent was the son of the said John Walther, who testified that his father died in 1876; that it was so many years since he had seen his father’s signature that he could not swear to it; that the signature to the consent seemed like his father’s signature, but that he could not tell whether it was or not.</p> <p>The witness subsequently produced several papers which he had found among his father’s papers after his father’s death and which he supposed to be genuine. Among these papers was a contract for the purchase of the premises in question which was dated in 1864. This contract was received in evidence without objection. The defendants then called a handwriting expert who was shown the consent alleged to have been signed by John Walther, and also the contract for the purchase of the property.</p> <p>After he had testified that he had compared the signatures annexed to these instruments, he was asked the following question: “ And in your opinion is the signature of the one on X for identification (the consent) the same as on Exhibit A 1 (the contract)? ”</p> <p>This question was excluded on the ground that neither of the signatures had been shown to be that of John Walther.</p> <p>The witness was then asked the following questions: “In your opinion did the same person write both signatures?” “I show you Exhibit X for identification (the consent) and ask you if, in your opinion as an expert, that is a genuine signature?”</p> <p>These questions were also excluded.</p> <p>Held, that under chapter 36 of the Laws of 1880, as amended by chapter 555 of the Laws of 1888, to justify the court in allowing evidence of a comparison between two signatures, the standard must be proved to the satisfaction of the court to have been the genuine writing of the person who it was ■ claimed had executed it;</p> <p>That, upon the evidence, there was submitted to the trial judge a question of fact as to whether the signature on the contract of sale was the genuine signature of John Walther;</p> <p>That the Appellate Division would not be justified in reversing his decision that the signature attached to the contract of sale was not sufficiently proved to justify him in accepting it as a standard with which to compare the signature to the alleged consent;</p> <p>That, consequently, the refusal of the court to allow the expert to answer the question propounded to him did not constitute error;</p> <p>That the evidence also presented a question of fact for the trial judge to determine as to whether the signature to the consent was sufficiently proved to justify its admission in evidence, and that the decision of that question by the trial judge would not be disturbed by the Appellate Division.</p>

<p> Partition of real property held by parties -who are copartners. </p> <p>Where partners each contributed, out of their share of the partnership profits, equal sums toward the purchase of real property, taking the title in the names of “Gustavus A. Goldsmith and Julius Levine,” the fact that the parties adopted the name of Goldsmith & Levine in dealing with the property; that they invested the rents or profits realized from the real estate by purchasing securities in their joint names or by jointly loaning the moneys, is not inconsistent with the theory that the parties held the title to the property as tenants in common under the provisions of the Revised Statutes (1 R. S. 727, § 44) and Real Property Law (Laws of 1896, chap. 547, § 56), providing: “Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy.”</p> <p>Even though the parties were engaged in a joint adventure, either of them is, when the rights of creditors are not in question, entitled to maintain an action to partition the property under the rule that, “ in the absence of any agreement, express or implied, between the partners to the contrary, partnership real estate retains its character as realty with all the incidents of that species of property between the partners themselves. * * * The working out of the mutual rights which grew out of the partnership relation does not seem to require that the character of the property should be changed until the occasion arises for a conversion, and then only to the extent required.”</p>

Appeal by the defendants, Hermine B. Straus and another, from certain portions of an interlocutory judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the cleric of the county of Hew York on the 31st day of December, 1902, upon the decision of tire court, rendered after a trial at the Hew York Special Term, directing a partition of real property and determining the interest of the parties therein.

Appeal by the relator, Frederick S. Sclilesinger, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2lth day of February, 1903, denying the relator’s motion for a peremptory or alternative writ of mandamus requiring the respondent to reinstate the relator as architectural draughtsman in the tene- ' ment house department.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of December, 1902, upon the verdict of a jury for $30,000, and also from an order entered in said clerk’s office on the 11th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>JFraudulent assignment of life insurance policies — evidence of the fraudulent intent — where the assured dies before judgment annulling the assignment the creditors take the proceeds of the policies — the proceeds may be administered by the Supreme Court — correct practice repseribed—pi'oof of a defalcation by a bank clerk — competency of the letter book — admissions by the bank clerk made before the assignment.</p> <p>In an action brought by a bank on behalf of itself and all other creditors of J. Prevost Mason, deceased, under section 7 of the Personal Property Law (Laws of 1897, chap. 417) to set aside, on the ground that it was fraudulent as to creditors, an assignment by Mason to his wife of certain policies of life insurance which had originally been made payable to his executors, administrators or assigns, it appeared that Mason was a note teller in the plaintiffs employ; ^ that on January 12v,l-9Ql$ he confessed to the bank officers in the presence of hi¡3 wife .that he was defaulter to the extent of $12,000, and that he was insolvent; that on Janyiary 16, 1901, he was arrested on the charge of being a '"defa'íiitér and’ was'Mtoitted''to bail; that three days later he assigned the insur- - áncé'^oliói’és rh quesfibiTtOdiis wife. February 1,1901, he committed suicide. •■fJNp letters pfi administration were issued upon his estate. The assignment of ¿..the^poficies recifed po. consideration, and Mason's wife paid none of the premiums 'due upon the.polipies.</p> <p>íféMfthát the"evidence 'justified tíieinference that the assignment of the policies v'w¿sínadenbhontem^)'látídn of Mason’s suicide, and for the purpose of defraud-R'.ing his ¿íé(dittífS; .-it</p> <p>yipt Ma^9n’s.;(irsditors'5vpere-entitled-.to'¡receive not only the cash value of the ^poliqies fti.the .time.gf the assignmentJ)pt the entire proceeds thereof;</p> <p>That,, as no letters of administration had been issued on Mason’s estate, it was ' prop'erYor th'é éuprémb C&urt tb"administer the fund instead of remitting it to '’■MttiySurrópíé'a Crfurtf*:*-'- iz</p> <p>That the e0iTeeLpr.acti.cefW,QU'ld<ha,ve;.been to' enter an interlocutory judgment i3 dirictiflg^thq app.qintment'Qf,a,r,eferee.tp advertise for and take proofs of the claims of creditors and report thereon. .</p> <p>Upon the tnal'ttie plaintiff, for 'ttíe purpó'se of proving the defalcation, showed ■fhatjt wasMason-^ duty tgjiollept drafts of^ customers of the bank deposited for ‘collection and payable elsewhere than in tiie city of New York; that he had made false entries in the books of the bank, crediting himself with §12,000 purporting to.consist of .four out of.town drafts received for collection. A letter book ofYheUanlt was received in evidence for" the purpose of showing that it contained no entry relating to the forwarding of those drafts. This letter book was not kept by Mason,..but it appeared that it was the course and custom of the bank, when drafts were forwarded for collection, to copy the lettqr.of .a.dvioe accompanying the drafts- into the, letter book. The duty of "writing such' letters devolved upon Mason,'who.'had the supervision if not the ""actual'charge ¿f this lira'h’tih of fhé plaintifE’s business.</p> <p>■EelW, tliafc-tiheletter-book was competencia evid'eiftib;'</p> <p>That Masqfl!s‘admissión,---th£Ít-"{ie had appropriated;to,liis-own use_§12,000 of the plaintiff’s funds and was then without property, having been made prior to :-* tlio ás'áigtirifétit of tkeáúsürance'-politoiesvand’dn-'the'pfé'seiibettbf':Ms -¡Wife, was ‘‘'cbifipetehtmpOff'thLb-lssne Of-fraud! and'S'lSb^s-éVi'detíCe'-'bfkki's'-'ind'ebtMness to '■■' tlie.b'ank'. V- Sr-"w.wí as.n --a y.:-..v.- v.w.s.:i.....-,w — i,w,? \ ;</p>

Appeal by the plaintiff, Julius W. Stolts, as president of J. & J. W. Stolts, an association organized and existing under and by virtue of the laws of the State of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of March, 1903, denying the plaintiff’s motion to make parties defendant herein the grantee and administrator of Morris Tuska, deceased.

Appeal by the plaintiff, Mary Deagan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of February, 1903, vacating a judgment entered upon the report of a referee and referring the matter back to said referee to amend Ms report.

Appeal by the City of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of January, 1902, confirming the report of the commissioners of estimate and assessment appointed in the above-entitled proceeding.

<p>Appeal by the defendant, the Stuyvesant Insurance Company of the City of New York, from a judgment of the Appellate Term of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of January, 1903, which affirmed a judgment of the General Term of the City Court of the city of New York, entered in the office of the clerk of said court on the 5th day of November, 1902, upon an order affirming a judgment in favor of the plaintiff entered in the office of the clerk of said court on the 25th day of February, 1902, upon the verdict of a jury rendered by direction of the court, and also affirming an order of said City Court entered on the 25th day of February, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Leopold Schepp, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of December, 1902, upon the verdict of a jury for $7,250, and also from an order entered in said clerk’s office on the 7th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Ella C. Henderson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of March, 1903, denying the defendant’s motion to open a default.

Appeal by the defendant, Hamline Q. French, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the •30th day of December, 1902, appointing a referee in the action to hear and determine.

Appeal by the relator, Isadore Greenberg, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1903, as directs that the writs of habeas, corpus and certiorari theretofore issued in behalf of the relator be dismissed and that said relator be remanded to the custody of the warden of the city prison.

<p>Appeal by the plaintiff, the Master Horseshoers’ Protective Association of the Borough of Manhattan, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1903, denying the plaintiff’s motion for an injunction pendente lite and vacating a preliminary injunction theretofore granted in the action.</p>

Appeal by the defendant, the Press Publishing Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 16th day of January, 1902, as resettled by an order entered in said clerk’s office on the 23d day of January, 1902, granting the plaintiff’s motion for a new trial made upon the minutes. The action is for libel.

Appeal by the defendants, Helen Gr. Le Conte and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 19th day of January, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1903, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Arthur Anisansel, from so much of an interlocutory judgment of the Supreme Court in favor of the defendant; Josephine IT. Coggeshall, entered in the office of the clei'k of the county of New York on the 20th day of February, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, as overrules the plaintiff’s demurrer to the separate defense set forth in the 7tli paragraph of said defendant’s answer.

Appeals by the defendants, Isabella Baird, as executrix, etc., of Matthew Baird, deceased, and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of tlie county of Hew York on the 27tli day of June, 1902, upon the report of a referee.

Appeal by the plaintiff, Levi L. Gans, from a judgment of the Supreme Court in favor of the defendant, entered in the office ■of the clerk of the county of New York on the 15th day of November, 1902, upon the verdict of a jury, and also from an order -entered in said clerk’s office on the 11th day of November, 1902, 'denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Luke A. Burke and another, from a judgment of the Supreme Court in favor of the defendant Fenwick B. Small, as receiver and trustee in bankruptcy of William M. Dean & Co., entered in the office of the clerk of the county of New York on the 5th day of December, 1902, upon the decision of the court rendered after a trial at the Hew York Special Term.

Cross-appeals by The City of New York and by Alfred Seton and others, as trustees, etc., of Samuel E. Lyon, deceased, and others, property owners, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of January, 1902, confirming the report of the commissioners- of estimate and apportionment appointed in the above-entitled proceeding.

Appeal by the plaintiff, Charles 0. Weston, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 3d day of July, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 3d day of July, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Frank Norris and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Wyoming on the 11th day of April, 1901, upon the decision of the court, rendered after a trial before the court without a jury at the Wyoming Trial Term, dismissing the complaint upon the merits.

<p> JS'ansfer tax—ante-nuptial agreement to pay a certain sum to a wife in lieu of dower—it constitutes a debt and is not taxable—words “in contemplation of the death” construed. </p> <p>November 24, 1899, Henry B. Baker entered into an ante-nuptial agreement with his intended wife, by which, among other things, he agreed that if the marriage should occur and she should survive him, he would make provision by his last will and testament for the payment to her from his estate of the sum of $20,000. His intended wife agreed to accept the provisions of the ante-nuptial agreement in lieu of her dower and other rights in her husband’s estate.</p> <p>The marriage occurred January 11, 1900. July 25, 1901, Balter died intestate leaving surviving him his widow and a sister, who was his only heir at law and next of kin. By an agreement entered into between the sister and the widow, the widow accepted the avails of a §10,000 policy of life insurance upon the life of the decedent which had been transferred to her by the decedent prior to his death in part satisfaction of the amount due upon the ante-nuptial contract and the remaining sum of §10,000 was subsequently paid to her from the decedent’s estate.</p> <p>The decedent was not ill at the time the ante-nuptial agreement was executed and it did not appear that the agreement was made with intent to evade the law.</p> <p>Held, that the §10,000 received by the widow from the decedent’s estate was not taxable under subdivision 3 of section 220 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 284) which provides for the imposition of a transfer tax, “when the transfer is of property made by a resident * * * by deed, grant, bargain, sale or gift made in contemplation of the death of the grantor, vendor or donor, or intended to take effect in possession or enjoyment at or after such death;”</p> <p>That the claim of the widow under the ante-nuptial agreement was in the nature of a debt;</p> <p>That the words “in contemplation of the death ” used in the statute do noc refer to that general expectation of death which every mortal entertains, but rather the apprehension which arises from some existing condition of body or some impending peril.</p>

Appeal by the plaintiff, Margaret Lang, from a judgment of the Supreme Court in favor of the defendants John C. Lutz and another, entered in the office of the clerk of the county of Erie on the 21st day of November, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, sustaining said defendants’ demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, Simon Block, from a judgment of the County Court of Jefferson county, entered in the office of the clerk of the county of Jefferson on the 3d day of July, 1902, upon the verdict of a jury in favor of the plaintiff, and also from an order entered in said clerk’s office on the 25th day of June, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Frank S. Russell, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cayuga on the 16th day of September, 1902, upon the report of a referee dismissing the plaintiff’s complaint.

<p>Mechanic? 8 lien for work done by one Vandegrift — effect of his having signed the contract “ Vandegrift & Company” — allegation that the plaintiff “ has duly fulfilled and performed all the conditions of the said, contract ” — it makes unneaessa/r'y a statement that the words was accepted by the engineer.</p> <p>In an action to enforce a mechanic’s lien for labor and materials furnished by one Vandegrift under building contracts, the fact that Vandegrift, in violation of section 363 of the Penal Code, was designated in the contracts as “ Vandegrift & Company ” will not prevent him from maintaining the action.</p> <p>Where the complaint in such an action alleges, pursuant to section 533 of the Code of Civil Procedure, that the plaintiff “ has duly fulfilled and performed all the conditions of the said contract on his part to be performed,” his failure to allege therein that the work in question was accepted by the defendant’s engineer, such acceptance being, by the terms of the contract, made a condition precedent to a recovery thereon, does not render the complaint demurrable.</p>

<p>Jury trial in a city court — where the complaint is radically changed the defendant’s right to a jury trial is not waived by its not having been previously demanded by him — his right to demand a jury trial should be a condition of the amendment.</p> <p>On the return day of a summons in an action brought in a city court, the plaintiff complained orally for goods sold and delivered. The defendant interposed a general denial, but did not demand a jury trial under section 2990 of the Code of Civil Procedure, which provides, “At the time when an issue of fact is joined, either party may demand a trial by jury, and unless so demanded at the joining of issue, a jury trial is waived.”</p> <p>An adjournment was then taken and on the adjourned day the plaintiff was permitted to amend his complaint by setting up a cause of action to recover damages for injuries sustained by a horse owned by the plaintiff in consequence of the ■wrongful maintenance by the defendant of a barbed wire division fence. The defendant joined issue on the new cause of action and immediately demanded a jury trial, hut his request was denied by the court.</p> <p>Held, that the defendant had not waived his right to a jury trial of the new issue and that, if he had waived such right, the court should have relieved him therefrom as a condition of permitting the plaintiff to amend his complaint.</p>

<p>Election in the city of Auburn — term of office of the recorder, city judge and justice of the peace elected in Horemher, 1898 — constitutional law.</p> <p>Prior to 1896 the charter election in the city of Auburn was held in March of each year and the terms of office of the city officers were declared to commence on the Monday following their election (Laws of 1879, chap. 53, §§ 6, 17). The terms of office of the recorder, city judge and justice of the peace were four years (§ 5). By chapter 520 of the Laws of 1896 the time of holding the charter elections was changed from spring to fall and the terms of office of the city officers were declared to commence on the first Monday of January thereafter, and it was provided that the first charter election under the amended act should take place in November, 1896 (§§ 6, 17). The terms of office of the recorder, city judge and justice of the peace were not changed.</p> <p>Section 12 of the act of 1896 provided that all elective officers of the city in office when the act should take effect should hold office until the expiration of the terms for which they had been respectively elected and until their successors should be elected and had qualified. It also provided that at the charter election held, under the provisions of that act, in November, 1898, there should be elected a recorder, city judge and justice of the peace, whose terms of office should commence in March, 1899, upon the expiration of the terms of the respective officers whom they were elected to succeed, and should terminate January 4, 1904.</p> <p>Held, that the terms of office of the recorder, city judge and justice of the peace elected in November, 1898, would not expire until January 4, 1904, and that their successors must be elected at the election in November, 1903;</p> <p>That while the act declared the term of office of the officers in question to be four years, it was evident that their first term under the act would have to be either more or less than four years;</p> <p>That it was competent for the Legislature to make the first term more than four years for the following reasons, viz.: That section 17 of article 6 of the Constitution provides that justices of the peace in cities may be elected for such terms as shall be prescribed by law and that the Constitution does not provide for recorders and city judges in cities and their terms of office are consequently within the control of the Legislature;</p> <p>That the act of 1896 was not obnoxious to section 16 of article 3 of the Constitution, which provides that private or local bills shall embrace but one subject and that such subject shall be embraced in the title;</p> <p>That, when the commencement of a term of office is fixed by law, elections to such office must take place at the last election held prior to the commencement of the term.</p>

Appeal by the defendant, Jerome L. Shelmidine, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 29th day of July, 1902, upon the decision of the court, rendered after a trial at the Jefferson Special Term, enforcing a verbal agreement as to real property and directing an accounting before a referee.

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 9th day of September, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 29th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Emile Seelig, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 24th day of November, 1902, upon the verdict of a jury, and also from an order entered in said clerics office on the 24th day of November, 1902, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, The Board of Health of the Town of Fayette, Seneca County, and others, composing said board of health, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Seneca on the 22d day of September, 1902, denying the defendants’ motion to quash and set aside a writ of certiorari theretofore issued herein.

Appeal by the defendant, William H. Walker, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 17th day of September, 1902, setting aside the report of the commissioners in condemnation proceedings and directing that a new commission be appointed.

Appeal by the defendant, The Village of Wells ville, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of tire county of Allegany on the 10th day of October, 1902, upon the verdict of a jury for $385, and also from an order entered in said clerk’s office on the 8th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Forgery—a certificate, signed by a town clerk after the expiration of his term, but antedated within his term, falsely stating that certain fish nets, which were being illegally used, had been destroyed — when it complies with the requirements of chapter 451 of the Laws of 1898—it constitutes forgery within section 509 of the Penal Code.</p> <p>Upon an appeal from a judgment convicting the defendant of the crime of forgery in the first degree, it appeared that chapter 451 of the Laws of 1898 (which was repealed in 1899) provided for the payment of a bounty for the seizure of fish nets which were being illegally used, upon the presentation to the county treasurer of a certificate of their destruction signed by certain officials, including town clerks; that the defendant, who had been the town clerk of a town in the county of Cayuga, after the expiration of his term of office and after the repeal of the said statute, issued, with intent to defraud the county, the following certificate: “I, Chas. F. Filkin, being Town Clerk of the Town of Montezuma, in the County of Cayuga, do hereby certify that Frank Spraker has seized and destroyed in my presence and according to law (Chap. 451 of the Laws of 1898) the following described fish nets which were being illegally used, viz.: (Then follows a description of the nets.) That the total amount due for bounty on the above described illegal fish nets is the sum. of $285, and I do further certify that said nets were not rotten and worthless for fishing purposes; ” that the certificate was signed by the defendant with his own name and his former official title as town clerk, and was dated as of a time prior to the expiration of his term of office and of the repeal of the statute. The nets mentioned in the certificate had not been destroyed as therein stated.</p> <p>Held, that a certificate issued under the act of 1898 was included among the instruments enumerated in section 509 of the Penal Code as being the subjects of the crime of forgery in the first degree;</p> <p>That the certificate issued by the defendant was apparently valid on its face, notwithstanding its failure to state more specifically the person to whom the bounty was due or to state more definitely the date when the purported destruction of the nets took place;</p> <p>That the fact that the certificate was not uttered until after the statute of 1898 had been repealed did not render it incapable of being the subject of a forgery, as the repeal of the statute did not affect valid certificates issued previous to such repeal;</p> <p>That the contention that the instrument did not constitute a forgery because the defendant signed it with his own name was untenable, as the defendant had made the certificate effective by signing his name in an official capacity which he did not possess.</p> <p>Williams, J., dissented.</p>

Appeal by the defendants, Mary Grant and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of March, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, directing the defendants to release and quitclaim to the plaintiff certain real estate.

Appeal by the plaintiff, William P. Wood, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the’ITth day of January, ■1903, upon the dismissal of the complaint by direction of the court after a trial at the Steuben Trial Term.

Appeal by the plaintiff, Bernard Rowley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 4th day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 4th day of October, 1901, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Edgar Knickerbocker, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 23d day of July, 1902, upon the decision of the court rendered after a trial at the Monroe Special Term.</p>

<p>A note signed by an agent with the addition to his name of the word “ Agt.” — when the agent is not individually liable thereon.</p> <p>An agent who, on behalf of his principal, purchases property and delivers to the vendor in payment therefor a promissory note signed with his own name, to which he has added the word “ Agt.,” is not personally liable upon the note, where it appears that the vendor accepted the note with knowledge that the agent was not acting in his individual capacity, hut as the agent of another.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 22d day of September, 1902, directed to Robert B. Adam and others, as grade crossing commissioners of the city of Buffalo,, requiring them to certify and return to the office of the clerk of the county of Erie all and singular their proceedings had in refusing to grant the petition of the relator to make application for the appointment of commissioners to appraise the damages alleged to have been sustained by her in consequence of the change of grade of Seneca and Peabody streets, in the city of Buffalo, under the direction of said commissioners.</p>

Appeal by the plaintiff, Barbara Myers, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 24th day of March, 1902, upon the report of a referee dismissing the complaint upon the merits.