Volume 83 — New York Supplement

<p>Appeal from Special Term, Orange County.</p> <p>Action by the people, on relation of the Missionary Sisters of the Third Order of St. Francis, against John Reilly and others, as assessors of the town of Highlands, N. Y. From orders striking certain property belonging to relator from the assessment rolls, defendants appeal.</p>

<p>1. Landlord and Tenant — Occupancy after Expiration of Term.</p> <p>Plaintiff and another were tenants in common of a butter-tub factory. Defendant and a copartner were engaged in the manufacture and sale of butter tubs. The husband of the copartner, representing his wife in the firm, rented from plaintiff’s co-tenant his interest in the factory, and defendant rented from plaintiff his interest therein for the year 1900. Thereupon the firm proceeded during the year to manufacture tubs. The husband of the copartner occupied the premises the following year, representing his wife’s interest in the partnership. It was apparently the same occupancy as that which existed under the lease. Helé, that the husband’s occupancy -in the conduct of the partnership business was the occupancy of his wife and defendant as partners.</p>

<p>Appeal from Special 'Term, New York County.</p> <p>Action by Hewitt Boice against Percival S. Jones and another. From an order containing an injunction, defendants appeal.</p>

Order to show cause on application of Morris D. Weiss against Abraham Schleimer, an attorney. From an order sending -issues of fact to a referee, respondent appeals.

Action by Clarence P. Day against the American Machinist Press. From a judgment in favor of defendant, entered on a verdict directed by the court, plaintiff appeals. The action is to recover damages for the alleged unlawful discharge of the plaintiff by the defendant on July 27, 1899, in violation of a written contract of employment dated January 11, 1899.

Condemnation proceedings by the town of Guilford against George Bradbury and another. From an order setting aside the award of commissioners unless defendants would consent to a reduction, defendants appeal.

<p>1. Corporation — Claim—Dividends—Injunction.</p> <p>Where a plaintiff, in an action against a corporation whose stockholders, with the exception oí plaintiff, were nonresidents, had, by his complaint and affidavit in support thereof, made out a prima facie case entitling him to 5 per cent, of the dividends of the corporation, he was properly granted a temporary injunction restraining the corporation from paying its stockholders more than 95 per cent, of the earnings and surplus set aside for dividends, and requiring it to deposit the remaining 5 per cent, with a trust company to await the determination of the suit.</p> <p>3. Same — Injunction—Transfer of Stock.</p> <p>Though a plaintiff, who had by his pleadings made out a prima facie case entitling him to 5 per cent, of the dividends of a corporation whose stockholders, with the exception of plaintiff, were nonresidents, was entitled to a temporary injunction restraining a payment of more than 95 per cent, of the dividends, it was improper to include in the order a requirement that notice of his claim be indorsed on all certificates of stock issued thereafter and on all assignments of shares.</p>

Action to foreclose a mortgage, brought by the Farmers’ Loan & Trust Company against the Hoffman House, a New Jersey corporation. The Hoffman House, New York, purchased at the sale. The cause was afterwards referred to a referee to determine the balance remaining due from the purchaser.

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

Action by Katherine C. K. Hagan against Sidney Ward and others. From a judgment entered on a decision of the court dismissing the complaint (77 N. Y. Supp. 893), plaintiff appeals.

<p>Appeal from Special Term, New York County.</p> <p>Action by Clark W. Dunlop against Lawrence V. Mulry and others to foreclose a mortgage. Gilbert W. Minor purchased at the foreclosure sale, and from an order directing him to complete his purchase, and denying his request to be relieved from his bid (83 N. Y. Supp. 1104), he appeals.</p>

<p>1. Corporations — Stockholders—Suing on Behalf of Company.</p> <p>A stockholder seeking to enforce a cause of action of the corporation against individuals must show that the corporation has some right of action against the defendants which the directors have refused to enforce, and which he may enforce in favor of the corporation.</p> <p>2. Same — Right to Sue — Acts Affecting Interest.</p> <p>Where a stockholder of a corporation has not participated in a scheme of its directors to induce the stockholders to exchange their stock for stock in another corporation, he cannot complain of the acts of such directors.</p> <p>8. Same — Wrongful Acts of Directors.</p> <p>• A stockholder seeking to enforce a cause of action in favor of the corporation against directors for an alleged conspiracy to divert the corporate assets to a new company, to secure control of its money, to oust it of its offices, and to pervert its business, is not entitled to relief where the new company did not compete with any business of the corporation,' nor divert its business, nor appropriate any of its assets, but after the purchase of the stock the business of the corporation largely increased, and reached a profitable basis.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Heloise D. Rose against William W. Durant. From a judgment for plaintiff entered on the report of a referee, defendant appeals.</p>

Final accounting of Robert H. Slocum, as general guardian of Mabel Fardette, an infant. From a decree adjudging the guardian to have in his hands a certain sum received by him as such, and that said sum be paid to his successor, the United States Fidelity & Guaranty Company, as surety upon the guardian’s official bond, appeals.

Action by William O’Connor against Peter Byrne. From a judgment of the Onondaga County Court reversing a judgment in favor of plaintiff rendered by the Municipal Court of the City of Syracuse, plaintiff appeals.

<p>Appeal from Trial Term, Richmond County.</p> <p>Action by Richard J. Donovan against William R. Weed and an.other. From a judgment for plaintiff, defendants appeal.</p>

<p>Appeal from Trial Term, Westchester County.</p> <p>Action by Thomas C. Taylor against the Earchmont Water Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Wills — Authority—Affidavit of Testator — Admissibility.</p> <p>In proceedings to probate a will, the affidavit of testatrix, made subsequent to the date of the will, to the effect that she did not make it, is inadmissible in evidence.</p>

<p>1. Wills — Construction.</p> <p>Decedent gave to his wife all of his property “for her own individual use and benefit after the following manner: * * * I give and devise all my * * * estate * * * to my friend S. and my wife, executor and executrix of this my last will, * * * in trust for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same, * * * and that my wife * * * may have the avails thereof, and if, at any time, such interest shall not be sufficient for her use, then she is to be paid so much of the principal as is necessary.” Decedent was survived by his wife and by his father. Held, that the property was given absolutely to the wife, the only attempt being to restrict its use during her life, and, on her death after the father, his estate had no interest therein.</p> <p>Parker, P. J., and Houghton, J., dissenting.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District.</p> <p>Action by Albert C. Wakefield and another against Charles G. Street. From a judgment of the Municipal Court of the city of New York directing a disitiissal of the complaint on the merits at the close of the plaintiffs’ evidence, plaintiffs appeal.</p>

In the matter of the transfer tax upon the estate of Otto Huber, deceased. From an order of the Surrogate’s Court modifying an ex parte order of the surrogate entered on the report of the appraisers on the appeal of the executor of the deceased and the treasurer of Kings county, the latter appeals.

<p>1. Attorneys — Champerty—No Recovery, No Pat.</p> <p>An agreement by which an attorney undertakes proceedings to recover abatements, he to be paid nothing for his services and disbursements in case of failure to obtain the abatements, is champertous.</p>

Judicial settlement of the accounts of Mary F. Fairweather as executrix of the estate of Mary L. Ogden, deceased. On objections to the account. Certain objections sustained, and decree accordingly.

Action by Ada Beers against Henry Havens Washbond. From an interlocutory judgment overruling a demurrer to defendant’s second defense, plaintiff appeals. This action is brought to foreclose a bond and mortgage.

Certiorari by the people, on relation of the Commercial Cable Company,, against William J. Morgan, as Comptroller of the state of New York, to review a revision of a franchise tax assessed against the relator. Comptroller’s determination modified.

<p>1. Banks — Certificates of Deposit — Limitations.</p> <p>A certificate oí deposit, payable on demand on the order of the payee, and bearing interest provided the amount deposited was left in the bank six months, does not mature, so as to start the statute of limitations running against the holder’s right to recover thereon, until presentation for payment.</p> <p>2. Same — Lost Certificates — Payment—Cancellation—Statutes—Constitutional Law — Obligation of Contracts.</p> <p>Laws 1899, p. 923, c. 451, as amended by Laws 1901, p. 1243, c. 503, providing that in case of lost certificates of deposit the person to whom it was issued, his executors, administrators, or assigns, may apply to the Supreme Court for an order directing payment and canceling the same, and after such order no claim can be made by any person having such certificate in his possession against the bank, but that the bank shall thereafter forever be entirely relieved from any liability by reason of having issued such certificate, or for the money due thereon, in so far as it affected lost certificates issued before the act took effect, was unconstitutional, as impairing the obligation of contracts.</p> <p>Chester, J., dissenting.</p>

<p>1. Default Judqment — Order on Motion to Vacate.</p> <p>Though defendant’s notice of motion be that the default judgment be vacated, and the findings be set aside, and his attorney be allowed to serve his notice of appearance, yet the parties being before the court, and a hearing being had on the merits, the order may also allow time to serve an answer; this being incidental to the relief asked.</p> <p>2. Appeal — Objection Not Made Below.</p> <p>Objections that defendant’s affidavits of merits on motion to vacate a default judgment was defective, not having been made below, where the court passed on his excuse of failure to seasonably appear, and on the good faith of the application, and exercised its discretion in his favor, cannot be made on appeal.</p>

Action by Frank Grant against the National Railway Spring Company. From a judgment on a verdict for plaintiff, and from an order denying a new trial, defendant appeals. The action was brought to recover damages for personal injuries sustained by the plaintiff while working for the defendant in its machine shop.

Action by Welthy J. Brown, executrix of L. Harris Brown, deceased, against the New York Central & Hudson River Railroad. Company for death of intestate. From a judgment on a verdict for plaintiff, defendant appeals.

<p>1 Receivers — Removal.</p> <p>Refusal to vacate an order appointing a receiver, on the ground of want of qualifications and fitness, is proper, the order to show cause not being based on papers attacking his fitness, and he not being apprised of the charges till the hearing.</p> <p>2. Same — Qualification.</p> <p>That one had been a director and the treasurer of a corporation is not alone sufficient reason for not appointing him receiver thereof.</p>

<p>1. Notes — By What Law Governed.</p> <p>A note made in Canada, and by its terms payable there, is a contract governed by its laws.</p> <p>2. Same — Protest—Diligence in Giving Notice — Evidence.</p> <p>The evidence in an action on a note against the executors of an indorser, where the notice of protest was sent to one not an executor, but a law partner of an executor, and who for some time kept it from the executor, held sufficient to sustain a finding that reasonable diligence was exercised in finding and giving notice to the personal representative. 8. Same — Alteration.</p> <p>The writing in pencil by the manager of a bank below the name of an indorser on a note held by it of his address, for the purpose of directing the bank clerks in keeping their records, is.not an alteration of the instrument.</p> <p>4. Same — Protest—Notice to Executors — Instruction.</p> <p>In an action against the executors of an indorser of a note governed by bills of exchange act of Canada (53 Viet. c. 33, § 49), providing that where an indorser is dead and the party giving notice of protest knows it the notice must be given to a personal representative, if with the exercise of reasonable diligence he can be found, the death of the indorser before maturity of the note, and plaintiff’s knowledge thereof, being admitted, and the whole issue being whether plaintiff was misled and misinformed as to who deceased’s representatives were, and in view of all the circumstances, had done all that could reasonably be required in giving notice of dishonor, defendants were entitled to an instruction that, as the indorser was dead and that fact was known to plaintiff before maturity of the note, it was its duty to give notice of the dishonor to the executor or executrix, if either could be found with the exercise of reasonable diligence.</p>

<p>1. Actions in Aid of Attachment — Pleading—Averments of Service.</p> <p>Under Code Civ. Proc. § 649, providing that, if personal property is not capable of manual delivery, the attachment must be executed by leaving a certified copy of the warrant with the person holding the property, or, if the property consists of a demand, with the person against whom it exists, a complaint in an action in aid of attachment, alleging its execution by leaving a certified copy of the warrant, and notice showing the property attached, with a certain person, who was treasurer or managing agent of defendant, is insufficient, without an averment that defendant was a corporation; such fact being essential to show the sufficiency of the service.</p> <p>2. Same — Issuance of Execution — Loss of Lien.</p> <p>Notwithstanding Code Civ. Proc. § 677, permitting an attachment creditor and sheriff jointly to maintain the action which the sheriff could maintain under section 655 in aid of an attachment, either before the return of execution, or after return unsatisfied, an execution issued against the property attached supersedes the attachment lien, and, on its return unsatisfied, no lien exists which can be enforced by action.</p>

<p>1. Street Railroads — Alighting from Car — Negligence—Questions for Jury.</p> <p>A street car conductor, after being notified of plaintiff’s desire to transfer, left the car just before reaching the place of transfer. Plaintiff was familiar with the locality, and knew where the cars usually stopped for transfer. The car, on reaching the place, stopped, and plaintiff started to leave it; but, it having started, she remained standing until it stopped a second time. While attempting to alight, it was suddenly, started without any warning, and she was thrown to the street. Plaintiff did not notify the motorman of her intention to alight. There was -nothing to indicate that the car had stopped for any purpose other than the transfer of passengers. Sold to require the submission to the jury of the question whether plaintiff was negligent.</p>

<p>Appeal from Trial Term.</p> <p>Action by Jacob C. Cook, as an administrator of Clarissa Cook, deceased, against Sandy Casler, as executor of Josiah Snell, deceased, and another. From the part of the judgment which dismisses without costs plaintiff’s first cause of action, and which is in favor of plaintiff on his second cause of action, defendants appeal. Judgment on first cause of action modified by including therein taxable costs to defendants, and on second cause of action reversed.</p>

<p>Appeal from Surrogate’s Court, Onondaga County.</p> <p>In the matter of the judicial settlement of the accounts of William-G. Tracy and another, as executors and trustees under the will of George N. Kennedy, deceased. From certain parts of the decree settling the accounts, the trustees appeal.</p>

<p>Appeal from Trial Term, Washington County.</p> <p>Bill by the Dunbarton Flax Spinning Company against the Greenwich & Johnsonville Railway Company. From a decree dismissing the complaint, plaintiff appeals.</p> <p>The plaintiff is a foreign manufacturing corporation, and has been engaged in its business of spinning flax within the state of New York since-February 1, 1892. Not until the 15th day of January, 1902, did it procure from the Secretary of State a certificate authorizing it to do business within this state. On the 16th day of January, 1902, it paid the license fee prescribed by section 181 of the tax law (Laws 1896, p. 856, c. 908). Until that section was amended by chapter 558, p. 1364, of the Laws of 1901, which went into effect on the 26th day of April, 1901, the plaintiff was exempt from taxation by reason of its being a manufacturing corporation. That section, as amended, and as it stood in January, 1902, reads as follows:</p> <p>“Sec. 181. License Tax on Foreign Corporations. — Every foreign corporation, except banking corporations, fire, marine, casualty and life insurance companies, cooperative fraternal insurance companies and building and loan associations, authorized to do business under the general corporation law, shall pay to the State Treasurer, for the use of the state, a license fee of one-eighth of one per centum for the privilege of exercising its corporate franchises or carrying on its business in such corporate or organized capacity in this state, to be computed upon the basis of the capital stock employed by it within this state, during the first year of carrying on its business in this-state; and if any year thereafter any such corporation shall employ an increased amount of its capital stock within this state, the same license fee shall be due and payable upon any such increase. The tax imposed by this section on a corporation not heretofore subject to its provisions shall be paid on the first day of December, nineteen hundred and one, to be computed upon the basis of the amount of capital stock employed by it within the state during the year preceding such date, unless on such date such corporation shall not have employed capital within the state for a period of thirteen months in which case it shall be paid within the time otherwise provided by this section. No action shall be maintained or recovery had in any of the courts in this state by such foreign corporation without obtaining a receipt for the license fee hereby imposed within thirteen months after beginning such business within the state, or if at the time this section takes effect such a corporation has been engaged in business within this state for more than twelve months, without obtaining such receipt within thirty days after such tax is due.”</p> <p>Section 15 of the general corporation law (Laws 1892," p. 1805, c. 687), the-interpretation of which is involved, as amended by chapter 538, p. 1327, of 'the Laws of 1901, reads as follows:</p> <p>“Sec. 15. Certificate of Authority of a Foreign Corporation. — No foreign stock corporation other than a monied corporation, shall do business in this-state without having first procured from the Secretary of State a certificate that it has complied with all the requirements of law to authorize it to do-business in this state, and that the business of the corporation to be carried on in this state is such as may be lawfully carried on by a corporation incorporated under the laws of this state for such or similar business, or, if more than one kind of business, by two or more corporations so incorporated for such kinds of business respectively. The Secretary of State shall deliver such certificate to every such corporation so complying with the requirements of law. No such corporation now doing business in this state shall do business herein after December thirty-first, eighteen hundred and ninety-two, without having procured such certificate from the Secretary of State, but any lawful contract previously made by the corporation may be performed and enforced within the state subsequent to such date. No foreign stock corporation doing business in this state shall maintain any action in this state upon any contract made by it in this state unless prior to the making of such contract it shall have procured such certificate. This prohibition shall also apply to any assignee of such foreign stock corporation and to any person claiming under such assignee or such foreign stock corporation or under either of them. No certificate of authority shall be. granted to any foreign corporation having the same name as an existing domestic corporation, or a name so nearly resembling it as to be calculated to deceive.”</p> <p>The complaint was dismissed on the ground that the plaintiff had no capacity to sue because the license fee was paid after the expiration of the 30 days from December 1, 1901.</p>

<p>Appeal from Special Term, Ulster County.</p> <p>Motion under Code Civ. Proc. § 3247, for an order directing the board of education of the city of Kingston to pay a judgment for costs in favor of George A. Kerr, rendered in an action against him by Henry Beck and others, as trustees of School District No. 3 of the city of Kingston. From an order denying the motion, George A. Kerr appeals. Reversed.</p> <p>The facts appearing upon this motion are substantially as follows:</p> <p>The three trustees of School District No. 3 in the city of Kingston brought a suit against the defendant, Kerr, to recover a school tax, claimed by them to be due to such district. They recovered in the City Court of Kingston a judgment for such tax and costs. The defendant appealed to the County Court, where the judgment was affirmed. The defendant then appealed to this court, where, on May 6, 1902, the judgment was reversed, with costs to the appellant, Kerr, in this court and in the County Court, to abide the event of the action, and a new trial was ordered in the City Court on a day fixed. Such order further directs that upon the final termination of this action, if in the defendant’s favor, the costs so allowed might, on notice and proof, be taxed by the county clerk of Ulster county, and a judgment in favor of the defendant be entered therefor. After the judgment of the County Court and the taking of the appeal therefrom, but before its argument in this court, an act was passed which created the “Board of Education of the Oity of Kingston,” and named the individuals who should constitute the first board. It also provided that such board was thereby “constituted the successor of the several boards of education, and of the trustees of the common school districts in the city of Kingston.” It further provided that all property then vested in and belonging to the several boards and trustees of the said several school districts, and in and to the several school districts, should pass to and become vested in the new board of education thereby created, and that the terms of office of all such trustees shall cease and expire. It further provided, in section 172, that the property of the several school districts in the city of Kingston should “remain and continue, and is hereby made liable for the present indebtedness of such districts respectively until the same is fully paid,” and the common council of such city was directed to include sucffi indebtedness in the annual tax levy, and collect moneys to pay the same. See chapter 494, p. 1162, Laws 1902, which became a law April 10, 1902. On the day which was named in the order the defendant appeared in the City Court of Kingston, and proceedings were taken therein, which resulted in a judgment of nonsuit against the plaintiffs and for costs in defendant’s favor. Such judgment was taken by default, and it is claimed by the respondents on this appeal that the default was improperly taken. Upon obtaining such judgment, the defendant, oil notice to the plaintiffs’ attorney and on a certified copy of the same, procured the costs awarded by the above-mentioned order to be taxed by the county clerk, and entered up a judgment against the plaintiffs for the same. Such judgment purports to be in the Supreme Court. It assumes to reverse the judgments which had been ordered reversed, and awards to the defendant against the plaintiffs $266.86 costs. Such judgment was taken October 6,1902. The defendant next moved at the January term of this court, on notice to the plaintiffs’ attorney and to Atkins, the president of the new board of education, and upon the affidavit of Adams, his own attorney, for an order substituting in the place of the plaintiffs the new board as their successors in office; and that the judgment of reversal, etc., and the proceedings in the Ulster county clerk’s office by which the judgment for costs was taken, be amended nunc pro tune as of the date of the original judgment of reversal. This motion was made on the ground that the new board had prosecuted the appeal in this court, and because of that and of the fact that they were transferees of the cause of action they had become liable for the judgment for costs, and had refused to pay them. This motion was denied by the appellate court. It further appears from the record that this action was brought without any resolution of District No. 3, authorizing the trustees’ to bring the same, and that the new board of education, upon its formation, employed counsel and defended the appeal. The defendant next, on February 10, 1903, moved at Special Term for an order under section 3247 of the Code of Civil Procedure, directing such new board to pay such judgment for costs, viz., $266.86, entered in Ulster county October 6, 1902, and further directing that under section 1931 of the Code he have execution against Loughran, Gillespie, and all others of the new board, naming them, as trustees and members of said board of education of said school district, the same as if they were named plaintiffs in said action, to be collected out of the property of the said officers. The Special Term denied such motion, and from that order this appeal is taken.</p>

<p>Appeal from Trial Term, Westchester County.</p> <p>William Shannon was convicted of pool selling, and he appeals.</p>

<p>1. Accident Insurance — Injuries Resulting from Fighting — Forfeiture-Questions for Jury.</p> <p>An accident insurance policy stipulated that it did not cover injuries resulting directly or indirectly from fighting, wrestling, scuffling, altercation, quarrel, or assault. Insured, employed as bartender, having ordered a noisy individual from the premises, was grappled by him and injured while forcibly resisting the assault, or while pushing the aggressor from the room in the course of such resistance. Held not to operate, as matter of law, to deprive him of all claim against the insurer, and hence it was error to dismiss a complaint in an action for indemnity on the ground that insured violated the policy.</p>

<p>Appeal from Special Term, Orange County.</p> <p>Action by William H. Berry against Jane Fleming. From a judgment dismissing the complaint, plaintiff appeals.</p>

<p>Appeal from Municipal Court of City of New York.</p> <p>Summary proceedings by Andrew K. Van Deventer against Smith Foster. From a final order directing defendant’s removal from the property, he appeals.</p>

<p>1. Guardian — Management op Estate — Collection op Rents — Employment op Agent — Credits.</p> <p>Where an infant was possessed of a small personal estate, a house and lot, and a block of stores, with apartments above, all situated in the same city, not far from the place of business of a trust company, which had been appointed his temporary guardian, and the property was rented to nine different tenants, who paid a rental of from less than $10 to $35 per month, and during six years preceding the accounting the gross rentals amounted to $7,650, the surrogate’s finding that the guardian was not warranted in employing an agent, at the expense of the estate, to collect such rents, was proper.</p>

<p>1. Broker’s Commission — Contract op Employment — Evidence.</p> <p>Evidence in an action for broker’s commissions in procuring a loan examined, and held that the verbal conditions referred to in the broker’s written promise to procure the loan for defendant at a fixed rate of interest on specified security “on fulfillment of the verbal conditions heretofore agreed upon with reference to said property” did not relate to the broker’s commissions, but to defendant’s agreement to take the loan on condition that he secured title to the property.</p>

<p>1. Appeal — Findings op Fact.</p> <p>A verdict for plaintiff for assault and battery, supported by his own evidence alone as to the occurrence, will not be disturbed on appeal merely because defendant’s denial is corroborated by three witnesses— a brother and a regular and an occasional employe of defendant.</p> <p>2. Evidence — Memoranda.</p> <p>A physician who made an examination, having testified fully as to its results, and there having been no failure or exhaustion of his memory, and he not being impeached on cross-examination, his memorandum of the examination is not admissible.</p> <p>8. Witness — Cross-Examination.</p> <p>Rejection of a question to a witness on cross-examination, whether his recollection, by reason of his condition, was the same on all answers made by him as on a certain answer just made, is in the discretion of the court.</p>

<p>1. Municipal Court — Jurisdiction—Judgment by Default — Attachment.</p> <p>Under the Municipal Court act (Laws 1902, p. 1519, c. 580, § 91), requiring the court to proceed to determine the action where the defendant has not appeared and defendant’s property has been duly attached by virtue of a warrant not vacated, though summons was not personally served, the court had no jurisdiction to enter judgment by default in a case where summons was not personally served and the validity of the attachment was denied for insufficiency of the affidavits.</p> <p>2. Same — Attachment—Affidavits—Fraud as to Creditors.</p> <p>Where affidavits for an attachment on the ground that defendant had disposed of his property with intent to cheat and defraud his creditors on the day before the affidavits were verified alleged certain suspicious acts on the part of defendant subsequent to the sale, but such facts were physically consistent with the receipt by defendant of the full value of the property, and with the intent on his part to apply the proceeds in good faith to the payment of his debts, the affidavits were insufficient to sustain the writ</p> <p>3. Same — Burden of Proof.</p> <p>Where an attachment is sought on the ground that defendant had disposed of his property with intent to cheat and defraud his creditors, the burden of proving a fraudulent intent is on the plaintiff.</p> <p>4. Same — Affidavits—Verification—Information and Belief.</p> <p>Where it appeared from attachment affidavits that plaintiff’s averments as to the grounds of attachment were not based on personal knowledge, and the situation of the parties was such as not to create a presumption of knowledge, failure of the affidavits to allege the sources from which plaintiff’s information was obtained was a fatal defect.</p> <p>5. Same — Fraud.-</p> <p>The fraud required by the Code to sustain an attachment on the ground that defendant had disposed of his property with intent to cheat and defraud his creditors is moral, rather than constructive, fraud, and is therefore not satisfied by a fraudulent disposition of goods in violation of Laws 1902, p. 1249, c. 528, providing that all sales of an entire stock of merchandise in bulk shall be fraudulent and void unless certain things are done five days before the sale.</p>

<p>1. Deposits in Court — Erroneous Withdrawal by Attorney — Befund.</p> <p>In an action to foreclose a mortgage, defendants procured an. ex parte order, permitting them to pay into court $482.42, the amount admitted by them to be due on a mortgage, which order provided that the money should be paid out of court to plaintiffs or their attorney. Other defenses were pleaded to the action, and the trial resulted in a decision that only $83.20 was due on the mortgage, and a decree was entered that, on payment of that sum within 10 days, the complaint should be dismissed. Such amount was paid, and a satisfaction given, plaintiffs’ attorney taking the acknowledgment; but, notwithstanding this, the attorney thereafter drew from the county treasury the amount previously deposited. Held, that such withdrawal was a fraud on the court, and that a summary-order directing that it be restored was proper.</p>

<p>1. Case on Appeal — Settlement—Review.</p> <p>The settlement of the case on appeal by the trial judge, he holding that what occurred on the trial was shown by the record as made by the stenographer, will not be disturbed, there not being a manifest abuse of power.</p>

<p>1. Testimony — Opinion of Witness — Province of Jijby.</p> <p>A witness in an action by a servant for injuries sustained by tbe bursting of a belt cannot give as Ms opinion, based on the condition of the belt, that a reasonable inspection of it by a competent person would have disclosed the fact that the belt was unsafe.</p> <p>2. Injury to Employe — Complaint—Proof.</p> <p>Under a complaint alleging tho-t plaintiff was struck in the right eye, destroying the sight thereof, proof of injury to the left eye was inadmissible, in the absence of evidence that the injury to the left eye was the immediate and necessary result of the injury to the right one.</p>

<p>Appeal from Special Term, Kings County.</p> <p>Proceedings to acquire land for the purpose of opening Seventy-First street from Third avenue to Shore Driveway in Ward 30, borough of Brooklyn, city of New York. From an order confirming the report of the commissioners of estimate and assessment, certain property owners thereby affected appeal.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action by John Hurley against the Metropolitan Street Railway Company. From an order denying a motion on the minutes to set. aside the verdict as inadequate, plaintiff appeals.</p>

<p>Certiorari by the people, on the relation of Melville J. Cole, against Thomas E. Cross and others, as the board of auditors of the town of Lagrange.</p>

<p>Appeal from Special Term, Westchester County.</p> <p>Proceedings for the voluntary dissolution of the National Gramophone Corporation of New York. From an order vacating an order entered October 25, 1902, directing the payment of a claim by the receiver of the corporation to Peter B. Olney and another, copartners, they appeal.</p>

<p>3. Gaming — Pool Selling — Evidence.</p> <p>Where, in a prosecution for pool selling, defendant admitted that the room in which the transactions occurred was a poolroom; that the persons depositing money there were betting on horse races; and defendant was located behind a pigeon hole in a partition, received money from betters, and issued to them tickets containing a printed number, which represented horses designated on score cards posted in the room and circulated by messengers; and the several races were announced from behind the partition in their purported progress, after which the money won was paid to the successful ticket holders — the evidence was sufficient to sustain a conviction, without proof that the entire contributions of the various betters were divided among the winners.</p> <p>3. Same.</p> <p>In a prosecution for pool selling, evidence of remarks made by some of the betters in the room as to the probabilities or chances of winning of some of the horses named on the cards posted and circulated within the room, which were within defendant’s hearing, was admissible.</p> <p>8. Same — Insthuctions.</p> <p>In a prosecution for pool selling, a refusal to charge that, while statements of people in the room, made in defendant’s hearing, were admitted for the purpose of showing the character of the business done in the room, they were not to be taken as proof that a horse race was taking place, or had taken place as alleged, was without prejudice where the court had previously charged that it was incumbent on the prosecution to prove beyond a reasonable doubt that such races did actually take place, and defendant’s representation to that effect, made on score cards circulated and posted in the room, were introduced to prove such fact.</p>

<p>1. Trusts — Misappropriation by Trustee — Memorandum of Account — Effect as to Cestui Que Trust — Evidence.</p> <p>A husband who was trustee for his wife misconstrued the trust as giving to his wife an absolute estate in the property, and thereupon changed certain of the trust securities into other securities purchased in the name of the wife. The husband and wife rented a safety deposit vault in common, in which her securities were placed; and, a short time before the husband’s death, he executed a written statement of the condition of the trust, reciting a disposition of specific securities originally a part of the fund, followed by a list of stock standing in the name of the wife, headed, “Property purchased or held in place of that disposed of mentioned above.” Eeld that, in the absence of proof that the wife acquiesced in the statement, it was inadmissible, as against her, in an action to impress such securities with the trust.</p> <p>2. Same — Witnesses—Executor—Competency.</p> <p>In an action against a trustee to compel an accounting and for a devastavit, the acting executor of the will, under which title to the trust funds passed to the trustee, who was not a party to the action, was not rendered incompetent to testify, as a party interested, or as the person from, through, or under whom the trustee derived title, within Code Civ. Proc. § 829, though the title to the trust fund nominally passed through the hands of the executor to the trustee.</p> <p>Chester, J., dissenting.</p>

Suit by Oliver C. Brown and another, doing business under the name of the Bent Glass Novelty Company, against Simon Braunstein and another, doing business under the name of the Bent Glass Globe Manufacturing Company. Decree in favor of complainants.

Applications by Minnie Masten and Kate M. Murphy for mandamus against William H. Maxwell, as city superintendent of schools of the city of New York. From orders and interlocutory judgments sustaining demurrers to defendant’s return to alternative writs, and from orders granting a peremptory writ, defendant appeals.

<p>Action by Elizabeth Boxberger, as administratrix, etc., of Raymond Boxberger, deceased, against the Brooklyn Heights Railroad Company and James Burke.</p>

<p>Action by the Barber Asphalt Paving Company against the city of New York and another. From an order granting an injunction before final judgment, defendants appeal. Affirmed. Theodore Connoly, for appellants. L. Laflin Kellogg, for respondent.</p>

<p>Action by George D. Berry against the Utica Belt Line Street Railroad Company. No opinion.</p>

<p>In the matter of the estate of Sarah A. Brewster, deceased.</p>

<p>Action by Clark W. Dunlop against Lawrence V. Mulry and others.</p>

Action by Henry Euler against Frederick ICappelmann. From a judgment dismissing the complaint at the close of the plaintiff’s case, plaintiff appeals. Reversed. H. A. Monfort, for appellant. Clarence Edwards, for respondent.

<p>In the matter of proceedings supplementary to execution by William Emert and another, judgment creditors, against Annie D. Coffey, impleaded with Edward H. Coffey, judgment debtor.</p>

<p>Action by Katherine Knniean, as administratrix, etc., against the Prudential Insurance Company of America.</p>

<p>Action by Victor Herbert against the Musical Courier Company. J. E. Judge, for appellant. T. D. Adams, for respondent.</p>

<p>Action by Herman Hamberg against Charles Counselman. From an order denying a motion for leave to amend the answer, defendant appeals. Reversed. A. Benedict, for appellant. E. Norton, for respondent.</p>

<p>Action by Mary A. McCarthy against Mary Huggler.</p>

Action by William Blurray and others against Walter T. Bliller and others. Submission of controversy on agreed case. Judgment for plaintiffs. Benjamin N. Cardozo, for plaintiffs. A. C. Brown, for defendants.

<p>Action by Clara B. Myers against Mary J. Hobson, individually, etc.</p>

<p>In the matter of proving the last will and testament of Lucinda W. Norton, deceased.</p>

Otto Hufland and another were convicted before a magistrate, and appeal. Reversed. A. S. Gilbert, for appellants. Theodore Connoly, for the People.

<p>Proceeding by the people of the state of New York against Battice Jackson.</p>

<p>Proceeding by the people of the state of New York, on the relation of William H. Gray, against the board óf supervisors of Livingston county.</p>

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

<p>Action by John Scanlon against the village of Weedsport.</p>

<p>Action by Porter D. Smith, as administrator, etc., against the Lehigh Valley Railroad Company.</p>

<p>Action by the South Buffalo Railway Company against Henry D. Kirlcover and another.</p>

<p>In the matter of the claim of Caroline Torge against the village of Salamanca.</p>

<p>In the matter of the application of the town of Guilford to acquire title to real property in said town owned by George Bradbury for a public highway.</p>

<p>In the matter of the settlement of the accounts of Watson Turner as guardian of Earl M. Pinckney.</p>

<p>Action by Jennie Underwood against the Interurban Street Railway Company.</p>

<p>Action by Oliver C. Wilkes against Frank Berry.</p>

<p>Action by Charlotte Williams against the Metropolitan Life Insurance Company.</p>

<p>Action by Nettie West, as administratrix, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>In the matter of the petition of Clara B. Whitten for leave to sue Eulalia Morse, an incompetent person.</p>