Volume 84 — New York Appellate Division Reports

<p>Equitable mortgage — notice of ike right thereto of a tenant in possession of the premises — yo'iority of such equitable mortgage over mortgages given to third persons during the continuance of the tenancy —judgment not granted against a party in default whose interest is not stated and against whom no relief is ashed.</p> <p>A mortgagee or grantee who takes a conveyance of real property, either conditional or absolute, which is in the actual and open possession of another, is, as a general rule, charged with knowledge of the exact rights of the person so in possession, and it is of no consequence that such rights were in fact unknown to such mortgagee or grantee.</p> <p>A purchaser of real property, occupied by persons sustaining only the relation of tenants to the owner, may, however, assume that their possession is the possession of the owner, and such purchaser is not chargeable with knowledge of any secret agreement which may have been made between such owner and such tenant or tenants affecting the title to the property, and which is wholly independent of and outside of the agreement or contract establishing such relation, and in no manner involved by the terms or conditions of the leases or agreements of occupancy.</p> <p>The owner of a farm, in the actual possession of a tenant who was working it on shares, became indebted to the tenant and made a verbal agreement with her that he would execute a mortgage upon the premises to secure the amount of the indebtedness, and that he would allow the tenant to occupy the farm as a tenant until the debt should be fully paid and satisfied. Thereafter and before the mortgage had been executed to the tenant or the indebtedness paid, and while the tenant still remained in possession Of the farm, the landlord executed to third parties mortgages upon the farm to secure loans actually made to him.</p> <p>Held, that, the tenant being in possession under her lease, the third parties were chargeable with knowledge of its terms and conditions;</p> <p>That, as one of the terms and conditions of the lease was that she was to be entitled to a mortgage upon the premises to secure the amount of the landlord’s indebtedness to her and also to remain in possession of the premises until the indebtedness was paid, the mortgages executed to the third parties were subordinate to the equitable mortgage created in favor of the tenant by the agreement between her and the landlord.</p> <p>Where the complaint in an action involving the title to real property does not demand relief of any kind as against one of the defendants, and contains no statement indicating what interest she claims to have in the premises, the court has no power to grant any relief as to such defendant, even though she defaults in pleading.</p>

Appeal by the plaintiff, George R. Paul, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Herkimer on the 19th day of May, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Herkimer Trial Term.

Appeal by the petitioner, Charles F. Bley, from so much of 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 28th day of October, 1902,-amending a bill of costs theretofore taxed by the clerk in favor of the petitioner, as reduces the same by striking therefrom the sum of- eighty dollars.

<p>Negligence— injury from the breaking of a defective rope employed, to dump a bucket used, in unloading iron ore from a vessel—when the master is not liable to a servant therefor. . - .</p> <p>A master who furnishes his servants with materials of suitable quality and in sufficient quantity to enable them to perform a particular piece of work in safety is not liable for an accident which results from an improper selection or use of such materials by the servants.</p> <p>In air action brought to recover damages for personal injuries, it appeared that the plaintiff was employed by the defendant to assist in unloading ore from a boat; that a derrick and bucket were employed in unloading the boat and that the bucket was fitted with a clamp to enable its contents to be discharged; that spliced to a chain attached to the clamp was a rope sixty feet long; that it was the duty of the plaintiff to stand upon the deck of the boat, holding this rope and to pull the same when he received a signal from the man in charge of the ore pile; that on the night of the accident the rope broke at the point where it was spliced to the chain, throwing or twisting the plaintiff in such a manner as to cause him to sustain injuries.</p> <p>The rope in question was not defective except at the point where the break occurred. There was evidence tending to show that its defective condition at this point could have been discovered on inspection, and that, on account of the darkness prevailing when he went to work, the plaintiff, who was an experienced employee, was not in a position to observe the defect. The rope was a new one which had been in use only one day prior to the accident. It had been purchased of a reliable dealer as a first-class rope, and a first-class price had been paid therefor. It was one which had been selected by the defendant’s foreman from the defendant’s storeroom, where there was an ample supply of good and perfect ropes. The foreman who selected the rope and the employee who spliced the rope to the chain were entirely competent to perform their duties.</p> <p>Held, that the defendant was not guilty of actionable negligence.</p> <p>Spring and Hiscock, JJ., dissented.</p>

<p>Appeal by the plaintiff, Michael Devereux, from a judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of Oneida on the 26th day. of May, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Oneida Trial Term.</p>

<p>Appeal by the plaintiff, William B. Gere, from a judgment of the Supreme Court in favor of the defendant, entered in the office ■of the clerk of the county of Onondaga on the 29th day of September, 1902, upon the decision of the court, rendered after a trial at the Onondaga Trial Term, a jury having been waived, dismissing the plaintiff’s complaint.</p>

Appeal by the plaintiff, Emma Cooper, as administratrix, etc., of Judson M. Cooper, deceased, from a judgment, of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oswego on the 29th day of April, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Oswego Trial Term, and also from an order entered in said clerk’s office on the 20th day of May, 1902, denying the plaintiff’s motion for a new…

Motion by the plaintiffs; Alfred H. Burt and another, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term. The issues of fact were brought to trial at a Trial Term held in June, 1901, in Erie county.

<p>Appeal by a municipality from a surrogate’s decree which makes no provision for the payment of taxes assessed against an administrator — it is “a creditor of, or pao’ty interested, in the estate ”—it is not necessary first to intervene or to file exceptions — the surrogate may adjust the equities between the estate and the administrator.</p> <p>It is not necessary that a party, intending to take an appeal from a surrogate’s decree under section 2569 of the Code of Civil Procedure, which provides: “A creditor of, or person interested in, the estate or fund affected by the decree or order (of the surrogate), who was not a party to the special proceeding, but was entitled by law to be heard therein, upon his application * * * may intervene and appeal as prescribed in this article,” should first seek to intervene and become a party to the proceeding by means of a petition, or file exceptions to the findings of the surrogate.</p> <p>A decree judicially settling an administrator’s accounts should, where it appears that there remains unpaid a valid tax assessed by a city against the administrator on account of .the estate, direct the payment of the tax out of the assets of the estate, and, if the circumstances are such that the administrator should •tie personally charged’with the amount of the unpaid tax, the decree may also adjust the equities as between the estate and the administrator:</p> <p>In such a- cáse the city is; “ a creditor of, or party interested in, the estate;” within - the meaning of section 3569 of the Code of Civil Procedure.</p>

Certiorari issued out of the Supreme Court and attested on the ;5th day of December, 1902, directed to Joseph H Eno and others, constituting the town board of the town of Hamburg, Erie county, Hew York, 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 pay the relator’s claim for professional services as a physician. ■

Appeal by the plaintiff, Mary A. Fitzgerald; from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 31st day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the Jefferson Trial Term, the jury having rendered a special verdict in favor of the plaintiff for $7,500.

- Appeal by the' plaintiff, Charles Walters, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 22d day of October, ■1902, upon the dismissal of the complaint by direction of .the court after a trial at the Onondaga Trial Term. The action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant.-

Appeal by the plaintiffs, Anna E. Mock and others, 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 7th day of March, 1901, upon the verdict of a jury, .and also from an order-entered in said clerk’s office on the 2d day.of March, 1901j denying the plaintiffs’ motion for a new trial made upon the minutes.' After the appeal papers in this case were completed, one of the original defendants,…

Appeal by the defendant, The City of Rochester, 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 20th day of April, 1903, upon the decision of the court, rendered after- a trial at the Monroe Special Term, granting-a perpetual - in junction restraining the defendant from interfering with the plaintiff in laying water pipes through certain streets in the city of Rochester.

Appbal by the defendant, the Town of Victor, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of Ontario on the 20th day of November, 1902, pursuant to an interloóutory judgment entered in said clerk’s office on the 29th day of October, 1902, upon the decision of the court, rendered after a trial at the.

<p>State tax sale — constitutionality of section 133 of the Tax Law, making the sale conclusive at the end of one yearr.</p> <p>The provision of section 133 of the Tax Law (Laws of 1896, chap, 908), limiting the right to apply or bring an action for the cancellation of a tax sale had prior to 1895 and of the conveyance executed thereon, to one year from the-passage of the act, is constitutional.</p> <p>If the application or action is not" brought within the time limited by the act, the title acquired by the grantee in the tax deed becomes absolute, notwithstanding the fact that the taxes, for the non-payment of which the State-assumed to sell the land, had in fact been paid.</p>

Appeal in each of the above-entitled actions by the defendant, the Schenectady Railway Company, from a judgment of the Supreme Court in each action in favor of the plaintiff therein, bearing date the 24th day of December, 1902, and entered in the office of the clerk of the county of Schenectady upon the decision of the court, rendered in each action after a trial at the Montgomery Special Term, enjoining the defendant from operating its railroad in front of the premises of…

Appeal by the plaintiffs, The Penrhyn Slate Company -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 Washington on the 28th day'of October, 1902, upon the décision- of the court, rendered after a trial at the Saratoga Special Term, dismissing the plaintiffs’ complaint upon the merits.

<p>Jfistoppel—a co-operative fire insurance company, which has undertaken to insure property in a county in which it was not authorized to do business — the insured may refuse to pay an assessment.</p> <p>In an action brought by a co-operative fire insurance company, organized for the purpose of doing business in the county of Saratoga, and which has attempted ~ to qualify itself to do business in the county of Warren, to recover an assessment levied by it upon the holder of a policy of fire insurance issued by it covering property in the county of Warren, the defendant, who-has received no benefit from the policy, is not estopped from asserting that the plaintiff’s attempt to qualify itself to do business in Warren county was ineffective, and that the policy was, consequently, void under the statute. -</p>

Appeal by the defendant, Thomas F.. Byrnes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on -the 21st day of October, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office oh the 17th day of October, 1902, denying the said defendant’s motion for .a new trial made upon.the minutes. ■

<p>Appeal by the plaintiff, John M. Murphy, from a judgment of the County Court of Rensselaer county in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the ,3d day of December, 1902, reversing a judgment of a justice of the peace of the town of North Gréenbush in favor of the plaintiff.</p> <p>This action was brought in a Justice’s Court to recover the balance due for one-half barrel of whisky, sold by the plaintiff, through his agent, to the defendant.</p> <p>The defendant was a hotelkeeper, living in the city of Rensselaer, and in January, 1901, purchased the whisky under the. following agreement: The whisky was to be delivered to him at Rensselaer, at the price of sixty-one dollars and eighty-eight cents, and he was to pay one-half in cash and the other half in horse hire to the plaintiff’s agent. Nothing was said as to when or where the horses were to" be furnished. At that time the defendant, was running a livery stable in connection with his hotel, and the plaintiff’s agent was in the habit of traveling to Rensselaer and the adjacent neighborhood in his business of selling whisky for the plaintiff. The defendant paid one-half or more of such purchase price in cash. About April 1, 1901, the defendant removed to Eagle Mills, which is about eleven miles from Rensselaer and about four miles from Troy the nearest railroad station, and there continues to keep a hotel and livery stable. Of the other half there was twenty-four dollars and ninety-four cents unpaid when he so removed, and this action is brought to recover that amount. The plaintiff recovered before the justice. The County Court, on appeal, reversed such judgment, without costs, and ordered a new trial before the same justice. From such judgment of reversal this appeal is taken. Further facts appear in the opinion.</p>

<p>Appeal by the defendant, T, Henry Dnrnary, from a final judg, ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Greene on the 15th day of August, 1902, pursuant to an interlocutory judgment entered in said clerk’s office on the '5th day of July, 1902, upon the decision of the court, rendered after a trial at the Albany Special Term, sustaining the plaintiff’s demurrer to the defendant’s answer, and also from said interlocutory judgment.</p> <p>The facts are stated in the dissenting opinion herein. The corporation of which the plaintiff is the receiver is a West Virginia corporation. Its assignor was a Hew Jersey corporation.</p>

Appeal by the defendants, Clark M. Smith 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 Chemung on the lfah… Held: under their supervision, an interstate fair. One -of the attractions at said fair was tvhat is called “ The Slide for Life ” performed by Mr. and Mrs. Sclimick. The apparatus in use in this performance consisted of u rope which was attached to abeam in the back of the grand stand.

<p>Appeal by the defendant, Frank M. Hewitt, as administrator, etc., of Christopher Hewitt, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 20tli day of October, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Defendant’s intestate died upon the llth day of September, 1900, at the age of eighty-eight years, He left no widow, and some nephews and nieces as his sole next of kin. For eight years prior to his death this plaintiff had been his general servant, taking practically the sole care of him in sickness and in health. She had not only done the household work but she had taken care of a horse, of a cow and of some pigs, and work generally done by a man servant. At periods of his sickness she nursed him faithfully, although at times such service was of a character far from agreeable. He had, sometime prior to his death, made a will in which he had left her the sum of $200; and upon the 5th day of October, 1898, he executed a codicil to his will in which he gave her the sum of “ Five hundred dollars, to be in full of all claims, dues and demands which she lias or may have against me at the present time, to wit, the date of this codicil, and in case she presents any bill or claim against my estate for services prior to this time, then she shall forfeit said legacy of Five hundred dollars, and in case I shall not pay her for future service, $60 per year, she shall present claims for said amount.” Thereafter, upon the 11th day of August, 1900, he executed a note of which the following is a copy:</p> <p>“ Saratoga Springs, N. Y., August 11th, 1900.</p> <p>“ On demand I promise to pay Honora Cunningham four hundred ($400.00) dollars for value received.</p> <p>“CHBISTOPHEB HEWITT.”</p> <p>Upon the thirteenth day of September he executed and delivered to the plaintiff a bill of sale of substantially all of his personal property, which amounted to between $400 and $500. Upon September fifteenth, two days before his death, he called for his will and burned the same. The codicil, however, for some reason, was not destroyed. At the same time he executed a paper of which the following is a copy:</p> <p>' ' “ Saratog, Sept, the 15, 1900.</p> <p>“I hereby give to Honoria Cuningham all my real estate and personial property when I am done with it, for this is my wish and last will and testament.</p> <p>“(Signed) CHBISTOPHEB HEWITT.</p> <p>“ Witness,- Polly A. Smith.”</p> <p>The plaintiff made claim for $6,000 for services for eight years for which she worked for the defendant’s, intestate. Upon the trial she surrendered the $400 note as being, as she claimed, a part payment for such services, and recovered a judgment for $1,000. From this judgment, and from the order denying a motion for a Hew trial defendant has appealed.</p>

Appeal by the plaintiffs, Augustus S. Fitch and others, as executors, etc., of George W. Fitch, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Delaware on the 24th day of February, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Delaware Trial Term.

Appeal by the defendants, James Matthias and others, as assessors of the town of Amsterdam, Montgomery county, Hew York, from a judgment of the Supreme Court in favor of the relator, entered in the office .of the clerk of the county of Montgomery on the 19th day of August, 1902, upon the report of a referee, as amended by an order entered in said clerk’s office on the 10th day of October, 1902.

Appeal by the defendant, John Wright Olmstead, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 15th day of August, 1902, upon the decision of ■ the court rendered after a trial at the Fulton Trial Term without a jury, granting plaintiff damages and restraining defendant from interfering with certain fences, etc., in Saeandaera Park.

Appeal by the' defendants, William B. Le Roy and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 24th day of July, 1902, upon the report of a referee. ' • ' The plaintiffs obtained a judgment against the defendants William B. Le Roy, Amelia L. White, R. Nicholas Vandervoort and Minnie A. Becker on the 3d day of December, 1897, for $17,723.97 upon promissory notes given by said judgment…

Appeal by the defendant, William H. Arnold, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Montgomery on the 10th day of February, 1903, adjudging said defendant in contempt of court and imposing a tine upon him.

<p> Liability, of director's of a corporation for a failure to file an annual report—what discontinuance of business by the corporation does not make it unnecessary to file a report. </p> <p>The mere fact that a stock corporation ceases doing business does not relieve its directors from the necessity of filing an annual report. In order to have that effect, the abandonment of the business must be certain and final and such as to place the corporation beyond the possibility of resuming business.</p> <p>The Cattaraugus Water Company, organized in 1890, transacted business until 1894, when the village of Cattaraugus erected an opposition plant. From the latter part of 1894 the company had no receipts and did no business. It subsequently brought an. action against the village of Cattaraugus relating to the water supply. The action was tried in July, 1895, and resulted favorably to the defendant. .</p> <p>In March, 1896, an action to foreclose a mortgage upon the company’s property and franchises was commenced, which resulted in a sale' thereof July 28, 1896. The corporation was insolvent during the years 1895 and 1896, but no action was ever brought by, or against, it for its dissolution Or for the distribution of its assets among its creditors.</p> <p>Held, that the abandonment of the company’s business during the years 1895 and 1896 was merely temporary, and that the directors of the corporation were no’t relieved from the consequences of the failure of the corporation to file annual reports during those years.</p>

Appeal by the plaintiff, George 0. Banta, from a judgmént of the Supreme Court in favor of the defendant, entered in the office of the clerk of the connty of Saratoga on the 13th day of December, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term. The parties to this action are brothers, the defendant being about seventy-seven years of age and the plaintiff about sixty-foür years of age.

■ Appeal by the petitioner, Laurence McCabe, as administrator of the estate of James A. McCabe, deceased, from an order of the Surrogate-s Court of Broome county, entered in said Surrogate’s Court on the 21st.day of October, 1902, denying the petitioner’s application to revoke letters of administration theretofore issued to John McCabe upon the estate of James A. McCabe, deceased, with notice •of an intention to bring up for review upon such appeal an intermediate order…

Appeal by the defendant, the Utica Trust and Deposit Company, from an order of the Supreme Cburt, made at the Albany Trial Term and entered in the office of the clerk of the county of Albany on' the 9th day of December, 1902, denying the said defendant’s: motion for a new trial made upon the minutes. The trial before the court and á jury resulted in a verdict for the plaintiff by direction of the court,' and judgment was thereupon' entered.

<p> Legacies charged on veal property “to the extent of one-half the value thereof remaining-at the price, estimated, of fifty dollars per acre, after deducting from the total . value thereof at that price" a widow’s support—amount of the charge,, houj ■ascertained. </p> <p>Ferdinand Nugent died in 1876 leaving a will, by which he devised a farm to his son Thomas, subject to the support of his widow and to the following• legacies: To his son Terrence §500, to his daughter Susan $300 and to his son Owen ■ $200. The will provided that the legacies should be a charge on the farm, which contained fifty-nine acres, “ only .to the extent of one-half the value thereof remaining, at the - price, -estimated, of fifty 'dollars per acre, after deducting from the total value thereof at that price the value and amount con--; tributed to the support and maintenance of * * * my (his) wife.”</p> <p>The testator’s, widow died in 1884 before any of the money legacies had been. paid. • •</p> <p>Held, that the -extent to which" the money legacies were a charge' on the farm should be calculated in the following manner, viz., the value of the farm should be calculated at the rate of fifty dollars an acre as directed by the will,. although the actual value of the farm was only about thirty dollars an acre; that from the value of the farm, as thus ascertained, the value of the suppprt furnished to the testator’s widow should be deducted; that one-half of the sum remaining would constitute the extent to which the three money legacies were a charge on the farm, and that, measured by this sum, each legacy was a charge on the farm in the proportion that the amount thereof bore to the total amount of all the legacies.</p>

Appeal by Ruth Hunt, as executrix, etc., of Thomas Hunt, ■deceased; from an order of the Surrogate’s Court of Rensselaer county, entered in said Surrogate’s Court on the 1st-day-of October, 1902, requiring said executrix to file a supplemental account. Thomas Hunt, the husband of Ruth, died in 1889 leaving a will' which was proven in December of that year.

Appeal by the defendant, James F. Kelly, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome on the 30th day of J une, 1902, upon the decision of the court rendered after a trial at the Broome Special Term, setting aside a confession of judgment and a chattel mortgage given by the defendant James J. Kelly to his father, the defendant James F. Kelly.

Cebtioeaki issued out of the Supreme Court and attested on the 28th day of June, 1902, directed to Hathan L. Miller, as Comptroller of the State of Hew York, requiring him to certify and return to the office of the clerk of the county of Albany all' and singular his proceedings had in denying the application of the Attorney-.

Certiorari issued out of the Supreme Court and attested on the 12th day of July, 1902, directed to Nathan L. Miller, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in denying the relator’s application for a revision and readjustment of an assessment of a franchise tax against the said relator, a domestic corporation, for the year ending June 30, 1901.

Oertiobabi issued out of the Supreme Court and attested on the 8th day of May, 1902, directed to Kathan L. Miller, as Comptroller of the State of Kew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing a franchise tax against the relator, a domestic corporation, for seventeen years, ending June 30, 1899.

.Appeal by the plaintiff, Izidore Friedman, from a judgment of the County Court of Schenectady county in favor of the defendants, entered in the office of the clerk of the county of Schenectady on the 29th day of October, 1902, reversing a judgment of the City Court of the city of Schenectady in favor of the plaintiff.

Appeal by James Dick and others, individually, from a judgment of the Supreme Court in favor of the relator, entéred in the' office of the clerk of the county of Tompkins on the 10th day of February, 1903, upon the decision of the court, rendered after a trial at the Broome Special Term, pursuant to the verdict of a jury reñ- • dered by direction of the court after a trial of the issues of fact at the Tompkins Trial Term, directing that a peremptory writ of mandamus issue to…

<p>Appeal by the defendant, F. Wayland Ayer, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 2d day of December, 1902, upon the decision of the court, rendered.' after a trial at the Broome Special Term, overruling said defendant’s demurrer to the plaintiff’s complaint.</p>

<p>Trustee in bankruptcy of a corporation—he may maintain an action to recover subscriptions unpaid on capital stock— he cannot enforce the stockholders’ statutory liability for debts—the latter liability is penal in its nature — the right to enforce it is ‘vested in the creditors — what complaint by such trustee for unpaid subscriptions is not demurrable—call for subscriptions, an order directing suit and a ' demand of payment, when unnecessary.</p> <p>The liability imposed by section 54 of the Stock Corporation Law (Laws of 1893, chap. 688, as amd. by chap. 354 of the Laws of 1901), which creates a liability on the part of stockholders of every stock corporation for the debts thereof where the whole amount of its capital stock has not been fully paid, is wholly statutory and in the nature of a penalty.</p> <p>The right to enforce such liability is vested in the creditors and not in the corporation, and does not pass to a trustee of the corporation appointed in bankruptcy proceedings.</p> <p>Unpaid subscriptions to the capital stock of .a corporation are debts belonging to the corporation which the corporation itself can collect, and are, therefore, assets of the corporation which pass to the trustee in bankruptcy.</p> <p>The complaint in an action brought by the trustee in bankruptcy of a corporation alleged that the corporation was organized with a capital stock of $500,000 divided into 5,000 shares of §100 each; that the certificate of incorporation fixed the amount with which the corporation should begin business at §500,000; that the corporation, after transacting business for some time, had been declared bankrupt and that the. plaintiff had been appointed trustee thereof; that the defendant Ayer subscribed for 800 shares and the defendant Baird for 60 shares of the stock; that the other subscribers were all non-residents and without the jurisdiction of the court except one Diven, who subscribed and paid for 1 share.</p> <p>The complaint further alleged that the defendants had failed to pay any part of their subscriptions to the capital stock of the corporation and had refused todo so, claiming that they had already paid their subscriptions; that claims against the corporation had been filed with the plaintiff in an amount which exceeded the assets in his hands by the sum of §106,000. Judgment was demanded against each defendant for a sum equal to the par value of the stock to which he subscribed.</p> <p>Eeld, that the failure of the complaint to allege that a call had been made for these subscriptions pursuant to section 43 of the Stock Corporation Law, which provides that subscriptions to the capital stock shall be paid at such times and in such installments as the board of directors may, by resolution, require, did not render it demurrable, for the following reasons: First, that it appeared from the terms of the certificate of incorporation that the subscriptions were to be paid before the corporation commenced business, and, second, that upon the corporation becoming insolvent, the right to call for unpaid subscriptions passed to the trustee in bankruptcy;</p> <p>That, assuming that the trustee in bankruptcy was only entitled to collect so much of the unpaid subscriptions as were necessary to pay the debts of the corporation, it was not necessary for him to obtain an order from the court levying an assessment on the unpaid subscriptions before commencing the action, for the reason that the complaint alleged that the unpaid debts exceeded the full amount of the unpaid subscriptions sought to be recovered in the action and that the subscribers, other than the defendants, were nonresidents and without the jurisdiction of the court;</p> <p>That the complaint sufficiently alleged a demand by the trustee of payment of the unpaid subscriptions, and that, even if it did not, the allegation of the complaint that the defendants claimed to have paid their subscriptions did, of itself, excuse the failure to make a demand;</p> <p>That from the allegation that the defendants claimed to have paid the amount of their subscriptions, there might be inferred a delivery of the stock, which would operate as a consideration for the defendants’ promise to pay their subscriptions, or a waiver of such delivery.</p>

Appeal by the defendants, Ernest E. Lorillard and others, as trustees of Jacob Lorillard, from an order of the Supreme Court, made at the New York Special Term bearing date the 13th day pf April, 1903, and entered in the office of the clerk of the county of New York denying said defendants’ motion to vacate an order theretofore made herein, bearing date tbe 19th day of February, 1903, for the examination of said defendants before trial.

Appeal by the relator, Harry Rothschild* from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 16th day of April, 1903, denying the relator’s motion for a peremptory writ of mandamus.

<p>Negligence—a person intending to take a north-bound street aw killed by a southbound street aw while crossing the south-bound track — when the question as to■ contributory negligence should be submitted to the jury — verdict of §10,000 reduced.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s testator, it appeared that about midnight on January 7, 1899, the decedent and a companion stood at the southwest corner of Central -Park West and Sixty-ninth street in the city of New York, intending to take a north-bound car on the defendant’s street railway which ran through Central Park West;, that a north-bound car was seen at about Sixty-eighth street and that a southbound car was seen at the southerly side of Seventy-first street; that the-decedent and, his companion left the southwest corner of Sixty-ninth street, and signaled to those in charge of the north-bound car to stop; that it did stop, between the north and south lines of Sixty-ninth street; that they walked quite fast in a northeasterly direction toward the north-bound car; that the decedent’s companion, who was about four feet in advance of the decedent, reached the north-bound car in safety; that he turned and saw the decedent right behind. ‘ him in the center of the south-bound track with the south-bound car rapidly approaching him; that he called to the decedent to look out for the car and that the decedent attempted to avoid the car by a backward movement, but. that he was struck before he could leave the track and was killed.</p> <p>The evidence tended to show that the south-bound car was traveling at the rate- ■ of twenty or twenty-five miles an hour and that no warning was given of its, approach.</p> <p>Held, that the question whether the decedent was guilty of contributory negligence was properly submitted to the jury.</p> <p>McLaughlin and Ingraham, JJ., dissented.</p> <p>In an action to recover damages for the negligent killing of a successful' business man, seventy-three years of age, who left a widow and adult children, none of whom, except the widow, received any pecuniary aid. from him, a.verdict,of $10,000 is excessive and should he reduced, where the evidence does not establish the decedent’s income or the. amount which he contributed to his family or which his family might reasonably expect from him in the future.</p>

<p>Certificate of insurance in a mutual benefit insurance association — change of beneficiary —failure to surrender a certificate outstanding in the hands of the beneficia/ry when a new certificate was issued —payment of dues by the beneficiary — estoppel.</p> <p>June 19, 1894, John Brophy, who was a member of a mutual benefit life insurance association, procured from it a benefit certificate for §2,000 in which his daughter Honora Dalton was designated as the beneficiary. The certificate was given to the said Honora Dalton, who kept it in her possession until her father’s death, which occurred April 20, 1900. December 13, 1894, the said John Brophy applied to the association for, and obtained, a duplicate of the certificate issued to Honora Dalton, alleging that such certificate had been lost or destroyed. Subsequent to the issuance of the duplicate certificate Brophy surrendered the same and obtained a new one which provided that his daughter Catherine should receive §1,200, his daughter Honora §500 and his son John $300.</p> <p>The by-laws of the association in force at the time the last-mentioned certificate was issued provided as follows: “ A member may at any time change, alter or amend the designation of person or persons to whom the beneficiary named in his certificate is payable, by surrendering said certificate, after having filled or caused to be filled, the blank which shall be provided for that purpose on the back of the same, providing for new designation, and attach his signature to it. * * * Upon the receipt of the same by the supreme recorder, he shall issue a new certificate in accordance with such change of designation."</p> <p>So far as appeared, the by-laws in force at the time when the duplicate certificate was issued contained no provision relating to the' issuance of a certificate in place of one that had been lost or destroyed. It was not shown that any contract existed between John Brophy and his daughter Honora, that she should continue to be the beneficiary of the certificate delivered to her or that any fraud had been perpetrated upon her.</p> <p>Held, that the benefit association was liable upon the certificate last-issued by lit; That the certificate held by Honora Dalton, and which- her father declared had been lost or destroyed, could not be enforced against the association unless the association was in some manner estopped from denying liability thereon, and that proof that payments of dues and- assessments had been made by the daughter Honora, not accompanied by proof that the benefit association was aware of it, was insufficient to establish such an estoppel;</p> <p>That the provision of the by-laws, requiring the surrender of an outstanding' certificate as a condition precedent to the issuing of a new certificate, was for the benefit of the association, and might be and had been waived by it.</p> <p>Hatch, J., dissented as to costs.</p>

<p>Vacation of a judgment entered upon the forfeiture of a recognizance — the Supreme Court may so direct under section 1482 of the New Tork City Consolidation Act — the certificate of the district attorney is not a 'condition precedent thereto — the exercise of the power given by that section and by sections 597 and 598 of the Code of Criminal Procedure is discretionary —it is reviewable by the Appellate Division — after the lapse of sixteen years it should not be exercised.</p> <p>Section 1482 . of the Consolidation Act, authorizing the Court of Common Pleas to vacate a judgment, entered upon the forfeiture of a recognizance because of the failure of the surety to produce the principal in compliance with the terms thereof, upon the production: of a certificate by the district attorney to the effect that the People have lost no rights by reason of the surety’s failure to produce the principal, and that by reason of the principal being produced the People are in as good a position to prosecute said principal as when the failure occurred, is still in force, and the authority thereby conferred upon the Court of Common Pleas is now vested in the Supreme Court. -</p> <p>The production of the district attorney’s certificate is not a condition precedent to the exercise by the court of. its power to remit the forfeiture, particularly where the district attorney in office at the time the forfeiture was declared is d ead.</p> <p>The authority to remit the forfeiture of a recognizance, conferred by section 1482 of the Consolidation Act and sections 597 and 598 of the Code of Criminal. Procedure, is a discretionary power, the exercise of which may be reviewed by the Appellate Division.</p> <p>Upon an application for the remission of a forfeiture and the repayment to ¡the surety of the money paid in satisfaction of the judgment entered thereon;, it ■appeared that the application was not made .until sixteen years after the pay- • ment of the judgment entered thereon, although the defaulting principal had returned to the jurisdiction of the court twelve years previous to that time. During the interim the money paid in satisfaction of the judgment had been applied to. county purposes. The sole explanation of the delay was a statement by the applicant in his affidavit that he. failed to apply for the relief sought because he was in ignorance of his exact rights in the premises.</p> <p>Held, that the granting of the application constituted an improper exercise of the discretionary power vested in-the court. :</p>

<p>Appeal by the defendants, Charles A. Baudouine and another;as trustees, etc., of Charles A. Baudouine, deceased, from an .interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rew York on the 17th day of February, 1903, upon the decision of the court, rendered after a trial at the Rew York Special Term overruling the defendants’ demurrer to the plaintiff’s complaint.</p>

<p>Appeal by the defendant, The ¡New York Steam 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 23d ■day of October, 1902, upon the verdict of a jury for $2,000, and •also from an order entered in said clerk’s office on the 30th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Charles H. Pond, 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 15th day of April, 1903, restraining the defendant from prosecuting an action instituted by him in the City Court of the city of New York against the plaintiff herein, until the final determination of -the above-entitled action, or until the further order of the court.

Appeal by the plaintiff, Jessie Torrence Magoun, from an interlocutory 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 24th day of July, 1902, upon the decision of the. court, rendered after a trial at the New York Special Term, sustaining a demurrer, to the plaintiff’s complaint interposed by the. original deféndant, George B„ Magoun.

Appeal by the petitioner, Camille Wéidenfeld, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of April, 1903; denying the petitioner’s motion for a peremptory writ of mandamus.

Appeal by the relator, The Standard Water Meter Company, 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 December, 1902, denying the relator’s motion for a peremptory writ of mandamus.

'Appeal by'the defendant, Peter'R. Dreyer, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York oh the 27jth day'of January, 1903, resettling an order entered in said clerk’s office on the 16th day of January, 1903, appointing a referee to take and state the account between the plaintiff and the defendant. | ■

Appeal by the defendant, the Western Electric Company, 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 4th day of February, 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 20th day of February, 1902, denying the defendant’s motion for a new. trial made upon the minutes.

<p>Bes adjudicata—action for fees upon a contract which, in a former action between the same pa/rties for Wee fees, has been adjudged to be invalid—subsequent decision, in another case, that the contract is valid.</p> <p>Where a demurrer to the complaint in an action brought to recover fees under a contract is sustained upon the theory that the contract is invalid and a judgment, from which no appeal is taken, is entered dismissing the complaint upon the merits, such judgment is res adjudicata against the right of the plaintiff to maintain a subsequent action to recover other fees alleged to: be due under the same contract, notwithstanding, that it appears from a decision • of the Court of Appeals rendered in an action between third parties that the contract in question was not invalid.</p>

<p>Assignment for creditors — a creditor, who attaclcs it but obtains no benefit from so doing, is entitled to sha/i'e in the assigned properly. ■</p> <p>An attack upon an assignment for the benefit of creditors made by a judgment creditor of the assignor, which, although successful as to a' portion of the property transferred to the assignee, resulted in no benefit to the judgment creditor, does not destroy the latter’s right to share yw rata with the other creditors in the proceeds of the property in the hands of the assignee which was not affected by the judgment in the creditor’s action.</p>

Appeal by the defendants, Gustavus C. Weber and another, from so much of an order of the Supreme Court, made at the Hew Work Special Term and entered in the office of the clerk of the county of Hew York on the 11th day of February, 1902, as directs the defendants to serve a bill of particulars of the counterclaim set up in their answer.

<p>Appeal by the petitioner, William H. Corbin, as sole executor, etc., of Julia A. Anderson, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 9th day of February, 1903, granting an open commission to take the testimony of witnesses in the States of Colorado and Utah.</p>

Appeal by the defendant, Charles W. Drake, 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 10th 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.

<p>Will — where the beneficiary and a third person are appointed trustees and the latter refuses to qualify the former is incóriipetent to execute the trust or a power of sale giren for the purposes thereof. ’</p> <p>The will of a testator provided as follows : “4. The remainder of all my property, real and .personal, and wheresoever situated, I give, devise and bequeath, to my executors hereinafter named and the survivor of them, in trust, nevertheless, for the following purposes, to wit :</p> <p>“Mrst. To collect, receive and pay over the income thereof to my wife, Anna Fredericka, during her natural life, for the support and maintenance of herself and our children, with the right and power to use so much of the principal thereof as my said executors may from time to time deem necessary and proper, in their discretion, for the purposes of said trust,” with the further direction to pay the unexpended balance of the principal and income in hand at the time of the death of his wife to his surviving children, and the issue of any deceased child, share and share alike.</p> <p>The 6th clause of the will provided: “For the purposes of the trust hereby created, I hereby authorize and empower my said executors and trustees and ■the survivor of them to sell and convey any and all property which may come into their hands as such executors or trustees.”</p> <p>The testator’s widow and a third party were nominated as executors, but the widow alone .qualified.</p> <p>Meld, that the trust created by the will was valid, notwithstanding that the widow, who was the sole beneficiary of the trust, had alone qualified as trustee; That the widow, however, was incompetent to execute the trust and had no power to execute the power of sale contained in the 6th clause of the will;</p> <p>That, upon the refusal to qualify of the trustee who was competent to act as such, the trust vested in the Supreme Court, to be executed by a new trustee to be appointed by the court, or by the court itself.</p>

Appeal by the plaintiff, Alfred D. Zeigler, 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 2d day-of April, 1903, directing the plaintiff to serve a bill of particulars»

Appeal by the defendant, the Rough Rider Horseshoe Company, 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 17th day of January, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the21st day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Jordan J. Rollins, 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 21st 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>Appeal by the defendant, The Fidelity and Casualty Company of Hew York, 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 15th day of January, 1903, 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 31st day of December, 1903, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>Bond—given upon, the granting of a liquor tas» certificate — its condition is violated by the use of the premises for immoral purposes, although the principal named in the bond has withdrawn from the actual management of the business.</p> <p>A bond, given, in order to enable the principal therein to secaré a liquor tax certificate, which is conditioned that the principal will not “suffer or permit” the premises in which the traffic is carried on to become disorderly, imposes upon the principal the obligation, as long as liquors are sold under the authority of the certificate, of seeing that the premises do- not become disorderly.</p> <p>If the principal withdraws from the actual management of the business, without surrendering the certificate or transferring it to his successors, and the latter, . during the life of the certificate, permits the premises to become disorderly, both 'the-principal and the surety are liable upon the bond.</p>

<p>Liability of a director of a corporation for an indebtedness created in excess of its paid-up capital stock — it must be shown that it is “ not secured by mortgage.”</p> <p>In an action brought against the directors of a corporation to enforce the liability . imposed upon them by section 34 of the Stock Corporation Law (Laws of 1890, chap. 564, as amd. by Laws of 1893, chap. 688), which provides, “Kb stock corporation, except a monied corporation, shall create any debt, if thereby its total indebtedness not secured by mortgage shall exceed the amount of its paid-up capital stock, and the directors creating or consenting to the creation of any such debt shall be personally liable therefor to the creditors of the corporation,” it is not sufficient for the plaintiff to show the existence of an indebtedness in excess of the paid-up capital stock, but he must show, in addition thereto, that such indebtedness is not'secured by mortgage.</p>

Appeal by the -defendantj The Industrial.Federation of America, 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 Ne;w York on the 16th day of April, 1903, denying the defendant’s motion to vacate á judgment theretofore entered.herein.

<p>Action to compel an accounting — a complaint is not demurrable because the plaintiff is not entitled to the particular relief asked for, provided he is entitled to any relief.</p> <p>The complaint in an action alleged that in pursuance of two contracts which were made a part of the complaint, the defendant entered the employ of the plaintiff, and, while acting in that capacity, did certain business and collected various sums of money, for which he refused to account, and that the plaintiff had no means of ascertaining the amount of business done or the money collected.</p> <p>The contracts in question provided that the plaintiff would pay to the defendant a specified commission on certain business obtained through the defendant’s efforts, and that the defendant would keep true and accurate accounts of all negotiations and transactions and give daily reports as to the progress of prospective deals and earnings. Both of the contracts contained provisions to the effect that books should be kept, which, together with all correspondence, etc., should belong to the plaintiff.</p> <p>The relief demanded was an accounting and a judgment against the defendant for whatever sum might be found due to the plaintiff thereon, and that the defendant should be required to deliver to the plaintiff all the books, papers, etc., kept by the defendant in relation to the.plaintiff’s business..</p> <p>Held, that the complaint was not demurrable;</p> <p>That, even if the plaintiff was not entitled to the relief demanded, it was entitled to some relief by virtue of the allegation of the complaint that the defendant had, while in the employ of the plaintiff, collected various sums of money for it which he refused to turn over.</p> <p>Semble, that the complaint presented a proper case for the exercise of the equitable power of the court to compel the defendant to render an account.</p> <p>A complaint is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action, if the facts alleged show that the plaintiff is entitled to any relief, either legal or equitable.</p> <p>A party will not be turned out of court simply because he has made a mistake in demanding relief to which he is not entitled.</p>

Appeal by the plaintiff, Moses King, from an interlocutory 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 9th day of April) 1903, upon the decision of the.court, rendered after a trial at the New York Special Term, sustaining the defendant’s , demurrer to the plaintiff’s complaint. ■

Appeal by the City of New York, successor to. the mayor, aider-men and commonalty of the city of New York, 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 22d day of March, 1900, confirming the report of commissioners of estimate and assessment, as confirms the awards for damage parcels Nos. 23A. 23B. 230, 23E and 23F.

Appeal by the plaintiffs, Jonathan McCoy and others, as executors, etc., of Mary F. King, deceased, 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 9th day of March, 1903, vacating an order theretofore made in. the aboveéntitled action for the examination- of certain officers of the defend-' ant before trial.

Appeal by the defendant, Joseph Romano, from a judgment of the Court of General Sessions of the Peace in and for the county of New York, entered on the 7th day of March, 1902, convicting the defendant of the crime of robbery in the second degree.

Appeal by the plaintiff, William' Weidrnan, 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 loth day of January, 1902, 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>

Appeal by the relator, The Bibb Manufacturing Company, 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 March, 1903, dismissing a. writ of certiorari theretofore issued herein, and • also; as stated in the notice of appeal, from the judgment entered, thereon in said clerk’s office on the 25th day of March, 1903.

Appeal by the' defendant, James ÍT. Stout, from an interlocutory 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 3d day of March, 1903, upon- the decision of the court, rendered after a trial at. the ÜSTéw York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint. ' The complaint alleges- that the following, written agreement' was made between the parties :■ “ Bruce Price…

Appeal by the defendants, Ernst Thalmann and another,, compos^ ing the firm of Ladenburg, Thalmann & Company, from an inter, looutory 3 udgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the plaintiff’s amended complaint.

Appeal by: the plaintiff, Brian G. Hughes, 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 19th day of Ho v ember, 1902, upon the verdict of a jury.

Appeal .by Adolph Teitelbaum 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 12th day of March, 1903, adjudging the appellant guilty of a criminal contempt, and also from an order entered in said clerk’s office on the 27th day of March, 1903, denying the appellant’s motion to vacate the first-mentioned order.

<p>Negligence — evidence that the decedent’s salary^ would probably have■ been increased — when too conjectural — capitalization of the decedent’s earning power is not' a. ■proper basis of a verdict. ■</p> <p>In án action.brought.'to recover damages for the negligent, killing of the plaintiffs intestate, it is error to permit; a member of the firm hy which the intestate was employed at the time of his death to state that there was a reasonable expectation that the intestate’s salary would, if tie had' lived, have been increased from time to time tO' a certain- figure, where it appears -that this . expectation, was based upon the hypothesis that the business of the firm would continue to be prosperous, and,that its prosperity .was dependent upon con-. ditions of peace or war prevailing in-a South American republic in which the ' firm did business’ •'</p> <p>Such a witness should only he permitted to state the nature of the- business; the character of the services which .the intestate rendered, , the amount which-was paid for such services, the conditions of the business and the usual rate paid employees, considering the length of their employment, their skill and faithfulness. From these facts it is for the jury to determine what would he, within reasonable prospect, the earning power of the decedent.</p> <p>In such an action the jury is not permitted to capitalize the earning power of the decedent, and award the plaintiff a sum of money which, at the rate of interest earned by trust funds, would produce the equivalent of such earn- : ing power.</p>

Appeaú by the .defendants, Violet Ingram and another,, from , an . interlocutory judgment of the Supreme Court in favor of '.the .plain.; tiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ separate demurrers to the plaintiff’s second cause of action, as stated in the complaint.

<p>' Appeal by Edward M. Grout, ah comptroller of the city of New York, from, ah: 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 March, 1903, directing that a peremptory writ of maiidamns issue directing said appellant to pay to the flesp'ondents herein a certain sum for incidental'expenses incurred by them in defending a prisoner charged with murder- in the first degree. ■' '</p>

Certiorari issued out of the Supreme Court and attested on the 20th day of December, 1902, directed to Thomas L. Hamilton, as county clerk of the county of Hew,York, and another, requiring them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings had in removing the relator from the position of docket comparing clerk in the office of the clerk of the county of Hew York.

<p>Appeal by the defendant, the Manhattan 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 26th day of September, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, restraining the defendant from maintaining and operating an elevated railroad in front of the plaintiff’s property unless within a certain time it pays the plaintiff certain damages.</p>

Submission of a controversy upon an agreed statement of facts,, pursuant to section 1279 of the Code of Civil Procedure. An agreement Was entered .into by and between Alonzo T, Decker, doing business under the firm name of A. T. Decker &.

Appeal by the plaintiff, Dora Schulsinger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 21st day of February, 1903, upon an order, made at the Hew York Special Term and entered in said clerk’s office on the 30th day of January, 1903, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 12th day of January, 1903, dismissing the plaintiff’s…

Appeal by the plaintiff, Theodore Bauméister, 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 14th day of March, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging that the plaintiff did not have a good and marketable title to the premises described in the complaint in the above-entitled action.

Appeal by the plaintiff, Horace T. Rowley, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 14th day of May, 1902, denying the plaintiff’s motion to punish the respondent for contempt of court for his refusal to comply with an order theretofore made herein, bearing date the 24th day of March, 1902, and entered in said clerk’s office, directing him to pay the referee herein a certain…

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

<p>Recovery on quantum meruit for breach of a contract to pay a fixed' compensation for services— the agreed compensation is evidence of their value—what knowledge-concerning similar, but not the same kind of, service qualifies a witness to testify .as an expert.</p> <p>A party, who enters into a contract to render certain services to the other party "thereto for a compensation fixed "by the express terms of the. contract, may, in the ¿vent of the other party repudiating the contract after he has performed the services, rescind it and sue on a quantum meruit to recover the value of his services.</p> <p>In such a case the compensation fixed by the contract is competent evidence of the value of the services.</p> <p>In an action to recover the value of services rendered by the plaintiff,, in procuring a loan to be invested"™ various enterprises in the United.States of Colombia,, a lawyer who had an extensive general knowledge concerning" the promotion of enterprises in Central and South America, including the United States of Colombia, and of the compensation paid to persons employed to procure capital for investment therein, is competent to testify as to the fair and reasonable value of the services rendered by the plaintiff, although he has no personal knowledge of the compensation paid to persons procuring capital to be invested in the particular kind of business to which the plaintiff’s contract related.</p>

<p>Appeal by the Home for Incurables from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the -23d day of March, 1903, confirming- the report of commissioners of estimate .and assessment.</p>

Appeal by the defendant, the Manhattan Trust Company, 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 2d day of April, 1903, granting said defendant’s motion to make Walter Kirkpatrick Brice, as administrator de bonds non of Calvin S. Brice, deceased, and JEtna Powder Company parties defendant, provided they voluntarily appear and adopt the answer of the Manhattan Trust Company, and,…

Appeal by the plaintiff, Robert D. Kent, from an interlocutory 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 14th -day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.

<p>Poof of the value of corporate stock — it may be shown by proving the value of the corporate property — not by the entry in the corpm'ate minutes of an expert’s report as to such value—the minutes are evidence of corporate action.</p> <p>The value of the property of a corporation is competent evidence upon the question of the value of its stock, but the minutes of the corporation upon which the report of an expert, employed by it to report upon the value of property which was subsequently purchased by it, is set out in full, are not competent evidence of the value of such property.</p> <p>The records of a corporation are competent evidence of corporate action.</p>

<p>Appeal by the plaintiff, Susie Frances Rockwell, from an order-of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York bn the 17th day of April, 1903, granting the defendants’ motion to strike out as irrelevant certain portions of the plaintiff’s complaint.</p>

<p> Discontinuance of a proceeding by mandamus to compel the payment of additional salary to a detective sergeant in the city of-Hew York—a clause that it was “ without prejudice to the right of the relator to sue ” is improper. </p> <p>Several patrolmen- of the city of New York,- who claimed to have been made detective sergeants by virtue of the Greater New York charter (Laws of 1897, chap. 378), instituted mandamus proceedings to compel the city to pay to them the additional salary to which they would be entitled if their claim was correct. One of the proceedings, which was made a test case, resulted in a final order dismissing the alternative writ of mandamus issued therein.. The Appellate Division affirmed the order upon the ground that, inasmuch as no appropria? tion had been made for the payment of the additional salary claimed, mam damns would not lie. It inserted in the order of affirmance a clause stating that the affirmance was “without prejudice to the right of the relator to sue.”</p> <p>Held, that this clause was inserted in the order of affirmance, not for the purpose of saving any cause of action that the relator.might have from the bar of the, Statute of Limitations, nor for the purpose of preventing the city from interposing that statute as a defense, but solely for the purpose of showing that the decision was not made upon the merits and was consequently not a bar to any action which the relator might bring;</p> <p>■ That the relator in a similar proceeding, who, after the decision in the test case, elected to discontinue the proceeding instituted by him, was not entitled to have inserted in the order of discontinuances provision that the discontinuance was “without prejudice to the right of the relator to sue,” as there having been no decision rendered in the proceeding, there would be no ground for any claim that the commencement thereof would be a bar to any action that the relator might bring.</p>

Appeal ■ by the defendants, Philip Horowitz 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 Hew York on the 30th day of January, 1903, upon the decision of the court rendered after a trial at the H ew York Special Term in an action' brought to fore close a mechanic’s lien.

<p>Appeal by the defendant, Nathan E. Clark, from a judgment of the Supreme Court in favor of the defendant Hobart D. Betts, as assignee, etc., of The Armstrong & Bolton Company, entered in the office of the clerk of the county of New York on the 28th day of November, 1902, upon the decision of the court rendered after a trial at the New York Special Term, except in so far as said judgment dismisses the complaint against the defendant Clark and awards judgment in favor of the plaintiff against The .Armstrong & Bolton Company.</p>

<p>Street opening in Sew Yorlc city, of a street ab'eady delineated on a private map— right to an award of abutting owners whose deeds refer to the map—what question, as to easements of other owners having been lost through adverse possession, cannot be raised by lot owners not appealing from the award —what award is substantial and not nominal — amaunt of award, how determined.</p> <p>In a proceeding to open-a street in the city of Hew York, it appeared that the street to be opened coincided with a street delineated upon a private map filed . in 1851. Lots abutting upon this street had been conveyed to various parties by deeds which referred to the map, and which conveyed the land to the center of the street, ‘ ‘ subj ect to the use thereof by all the owners of the lots laid down on said map and by the public generally as public avenues or streets according to said map.”</p> <p>The street was never dedicated to the public nor was it ever used as a means of ingress to or egress from the abutting lots. Many of the abutting owners erected fences across the street and others erected sheds and other buildings thereon.</p> <p>In the report of the commissioners of estimate and assessment appointed in the proceeding, the abutting owners were allowed one dollar and twenty-five ■ cents per lineal foot as the value of their interest in the land within the street and as damages to the abutting land.</p> <p>Some of the abutting owners filed objections to the report and the Special Term decided that the street in question never became a public highway, but that the abutting owners whose deeds referred to the map had private easements over the street; that consequently the objecting lot owners were not entitled to damages on the theory that they owned the absolute fee of the street, but that they were entitled to substantial damages and that they had not been awarded substantial damages; that they were also entitled to compensation for the buildings erected on the land sought to be taken. He accordingly sent the report back to the commissioners with directions to revise it as to objecting lot ‘ pwners, in accordance with this decision.</p> <p>Upon an appeal- taken by the city from the order remitting the report to the commissioners for revision, it was</p> <p>Held, that the respondent owners, not having appealed, were not entitled to raise the question whether the private easements in the street had been lost by adverse possession;</p> <p>That the awards made by the commissioners to the objecting property owners were substantial,, as distinguished from nominal awards, and that ■ the. Special ' Term was hot justified in declaring them inadequate;</p> <p>That the city should make compensation for the buildings located upon the parcels ownéd by the respondent' lot owners, but that in determining the amount of such compensation, the commissioners "should take into consideration the right of the other lot owners to compel their removal, and if such a right</p> <p>existed, the probability or improbability of the exercise thereof.</p>

Appeal by the defendant, Clarence L. Lowther, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 8th day of May, 1903, denying the defendant’s motion to vacate an attachment theretofore issued in the above-entitled action. The action, was brought to recover $75,000 damages for the alienation of the affections of the plaintiff’s wife.

Appeal by the defendant, Wolf Sheinker, 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 5th day of December, 1902, vacating an order theretofore made in the above-entitled action, dated the 7th day of November, 1902, requiring security for costs and permitting the plaintiff to sue as a poor person.

Appeal by the defendants, Myron H. Oppenheim and another, from an order of the Supreme Court, made at Chambers, and bearing date the 4th day of March, 1903, permitting the plaintiff to file a note of issue and placing the cause upon the general calendar for trial.

Appeal by the plaintiff, Julia S. Boyd, 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 15th day of May, 1903, denying the plaintiff’s motion to amend the summons and complaint herein by striking out in the caption the words 1 “ as substituted trustee under the will of Matthew Byrnes, deceased,” after the words “United States Mortgage and Trust Company.”

Appeal by the defendants, Edward P. Barker and others, commissioners of taxes and assessments of the city of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 7th day oí January, 1898, vacating an assessment against the capital and surplus of the relator, a domestic corporation, for' the purposes of taxation for the year 1897.

Appeal by the plaintiff, the McRoy Clay Works, 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 13th day of March, 1903, granting the defendants’ motion to .strike out certain portions of the plaintiff’s amended complaint as redundant and evidentiary. The facts are fully presented in the opinion of Hatch, J.

Appeal by the plaintiff, Walter S. Weldon, 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 14th day of April, 1903, referring the issues in this action to a referee to hear and determine.

Appeal by the defendant, the American Surety Company 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 21st day of February, 1903, 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 27th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Action by a contractor against a sub-contractor for the latter's failure to perform the sub-contract — the direction of the contractor authorizes a departure from the contract — evidence incompetent as hearsay — clear proof required, to establish a waiver of the provisions of a written contract—when the waiver is a question for the jury-—charge that if a witness is believed the jury must find that the waiver is established.</p> <p>Where a contract for the performance of certain work in the construction of a bank building provides that the work shall be done to the satisfaction of the architect employed by the bank, and the contractor sublets a portion of the work under a contract containing a similar provision, if the principal contractor gives the sub-contractor specific directions as to the precise manner in which the work shall be performed, and the sub-contractor performs the work in accordance with those directions, the fact that the work does not comply with the principal contract or the sub-contract, and is rejected by the architect, will not entitle the principal contractor to sue the sub-contractor for a breach of the contract.</p> <p>In such an action evidence, given by a witness called by the sub-contractor, to the effect that he visited the office of the principal contractor with the sub-contractor and that the witness there said to the principal contractor, “I know it is a first-class job,” is incompetent.</p> <p>It is error to permit the sub-contractor .to testify to statements made by the architect’s superintendent to the effect that the failure of the sub-contractor to perform a satisfactory job was due to the principal contractor’s ignorance of the kind of a job the bank people wanted, as such statements are the declarations of a stranger, and the evidence is hearsay and incompetent.</p> <p>Where the oral evidence relied upon to establish a waiver of the provisions of a written contract is disputed and contradicted by a greater number of witnesses, of at least equal standing with him who asserts the claim, and where there is no inherent improbability in the statements made by such witnesses, the claim of waiver of the written contract must be regarded as not established, and a verdict founded upon such testimony should be set aside as being, against the clear weight of the evidence.</p> <p>When the question of waiver is a question of,fact for the jury, and when it is . error for the court to charge the jury that if they find that the testimony of a certain witness was true they must, find that the waiver was established, considered.</p>

Appeal by the plaintiff, William D. Cole, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the loth day of May, 1903, granting the defendant’s motion to vacate a 'warrant of attachment granted herein.

<p>Contract for repairs to a steamboat — distinction between extra work and additional work — written orders for the latter not required.</p> <p>A contract, made by the city of New York for the repair of a steamboat belonging to it, provided that the city should appoint an inspector of repairs and supplies, . whose duty it should be to inspect the work of repairs daily. The contract ' also contained the following provisions: “ The Inspector of Repairs and Supplies reserves the right, at any time during the progress of the work to order any addition thereto or omission or deviation from the works as laid down in these specifications, and the contract shall not be invalidated thereby, but a fair allowance will be made for the value of such addition or deviation, as the case may be;’’that “no extra work will be allowed or paid for unless the. same is done upon a written order of the Inspector of Repairs and Supplies; ” that “ any work not particularly described in these specifications, but unintentionally omitted, or any work reasonably implied and evidently necessary to the complete finishing of- all the' work; is. to be done by the-contractor, without extra charge or compensation, the same as if it were herein specified; ” that “ the Inspector of Repairs and Supplies shall in all cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof, and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive upon said contractor.”</p> <p>Another provision of the contract required the contractor, before bidding, to visit the vessel and “satisfy himself by personal examination of the location of the proposed work, and by such other means as he may prefer, as to the accuracy of the specifications as relating to the character and quantity of the materials to be used and the alterations and improvements thereof, and shall not at any time, after the submission of his proposal, dispute or complain of such specifications, nor assert that there was any misunderstanding in regard to the character or amount of work to be done.”</p> <p>In an action brought by the contractor to recover for work done pursuant to orders given by the inspector of. repairs and supplies, which was conceded by the parties not to have been extra work and which the contractor claimed was additional work, it was</p> <p>Held, that the distinction between extra work and additional work was, that the former was work arising outside of, and entirely independent of, the contract and not required in its performance, while the latter work was necessarily required in the performance of the contract, not unintentionally omitted from the contract and not reasonably implied and evidently necessary to the completion of the woilt;</p> <p>That, in order to entitle the contractor to recover for additional work ordered by the inspector of repairs and supplies, it was not necessary that such orders should have been given in writing.</p> <p>What items of the plaintiff’s claim would and what items thereof would not come within the category of additional work, considered.</p> <p>Van Brunt, P. J., dissented.</p>

<p> Alleged agreement by a husband to leave his entire estate to his widow—rules applicable to actions foi’specific performance rigidly applied—an action for dower is inconsistent with it but does not create an estoppel—the right to recover money advanced by the wife to the husband protected where specific performance is refused. </p> <p>In an action brought by the wife of a decedent against his heirs at law, devisees and legatees to compel the specific performance of an agreement, by which the decedent was alleged to have agreed, in consideration of certain services performed for him by the plaintiff and of certain.moneys advanced to him by her, that upon his death he would leave to her all the property of which he might die seized and possessed, the ordinary rules of law which govern actions for the specific performance of contracts will be rigidly applied.</p> <p>The fact that the plaintiff, for whom no provision had been made in the will, brought and successfully prosecuted to judgment an action to recover dower in her husband’s estate, while it may not estop her from prosecuting other claims against the estate, is entirely incompatible with the existence of a contract under which she is entitled to all of the decedent’s property at his death.</p> <p>Where the evidence given in the action, although insufficient to justify the court in directing specific performance of the contract, does establish that the plaintiff advanced to the decedent a certain sum of money, a judgment dismissing the complaint upon the merits should contain a provision that the dismissal was without prejudice to the right of the plaintiff to maintain an action against the estate to recover the advances.</p>

<p>Bonds of .foreign corporations, owned by a non-resident and at his death in 1888 on deposit in the State of New York and which pass to non-residents, are not subject to inheritance tax.</p> <p>Bonds of corporations foreign to the State of New York, owned by a resident of the State of South Carolina and which, at the time of his death in 1888, were on deposit at a bank in the city of New York and passed under his will or under statutes of distribution to non-residents of the State of New York, were not subject to a collateral inheritance tax under chapter 483 of the Laws of. 1888 or under chapter 713 of the Laws of 1887, which amended the act of 1885.</p> <p>Patterson and O’Brien, JJ., dissented.</p>

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 20th day of December, 1902, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 23d day of December, 1902, denying the defendant’s motion for a. new trial made upon the minutes.

<p>Appeal by the defendants, C. Amory Stevens, executor, and another, executrix, etc., of Calvin Stevens, 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 26th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the' 30th day of December, 1902, denying the defendants’ motion for á new trial made upon the minutes, and also from an order entered in said clerk’s office on the 30tli day of December, 1902, denying the defendants’ motion for leave to renew said motion for a new trial.</p>

<p>Street opening in New York city — damages for change of grade — the notice of an intention to change the grade must be clear—delay of seventeen years after giving such notice — effect of a failure of a properly owner to file a claim with the commissioners of estimate and assessment.</p> <p>The right of an owner of property abutting upon a street in the city of New York to recover damages done to the buildings erected upon his premises, in consequence of the grading of the street, cannot be successfully challenged' upon the ground that the buildings were erected with notice of the intention to grade the street, unless the proof of the facts charging the property owner with such notice is clear and conclusive.</p> <p>Where the city takes no proceedings towards grading the street for a period of seventeen years after giving notice of such intended grading, it cannot successfully contend that abutting owners are not entitled to recover damages done to buildings erected on their premises during the interval.</p> <p>The failure of an abutting owner to file his claim for damages with the commissioners of estimate and assessment appointed in the proceeding, at the time when the notice published therein required such claims to be presented, does not estop the landowner from subsequently objecting to the confirmation of the report of the commissioners in the event of their failure to make an award to him.</p> <p>In such a case the- duty devolves upon him of showing that he is aggrieved by the action of the commissioners, and that they have not properly performed their duties.</p>

Appeal by the plaintiff, Edwin V. Brendoñ, by permission, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 22d day of January, 1903, reversing a judgment of the Municipal Court of the city of New York,, borough of Manhattan, in favor of the plaintiff, entered on the 9th day of October, 1902, upon the verdict of a jury.

Appeal by the plaintiff, John H. Parks, 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 21th day of June, 19.02, upon the ¡decision of the court, rendered after a trial at the Hew York- Special Term, dismissing ¡the plaintiff’s complaint upon the merits.: '

<p>Seal estate conveyed in trust to apply the profits to the me of the grantor — the beneficiary may mortgage her interest by a mortgage simply describing the land by metes and bounds.</p> <p>In 1889 Laura A. Harris, who was the owner of a parcel of real estate which ■ was then subject to a §500 mortgage, conveyed the real estate to a trustee “upon trust to receive the issues, rents and profits of the said premises and apply the same to the use of said Laura A. Harris during the term of her natural life, and after the death of the said Laura A. Harris to convey the same ■ by deed to her children.”</p> <p>In 1898 the said Laura A. Harris, for a valid Consideration, executed a bond and mortgage for §1,000 upon the premises, which mortgage described the real estate by metes and bounds and was drawn in the form which would have been proper had the mortgagor been the owner of the fee and was not in terms limited to the mortgagor’s life interest in the rents. In 1900 three judgments' were recovered against Mrs. Harris. . In the same year an action was brought to foreclose the. §500 mortgage which resulted in a surplus applicable to Mrs. Harris’ life interest not sufficient to pay in full the outstanding $1,000 mortgage and the judgments.</p> <p>Meld, that Mrs. Harris’ interest in the rents was alienable and mortgageable, and that, although the mortgage purported to cover the land and not the rents, equity would treat.it as covering the rents;</p> <p>That the surplus money applicable to Mrs. Harris’ life interest should be applied to the payment of the mortgage and the judgments in the order of their creation.</p>

Appeal by the John N. Robins Company from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 16th day of January, 1903, vacating an order of said court, hearing date the 13th day of September, 1901, authorizing the administratrix- herein to settle an action brought by her against the said appellant.

<p>Surety upon the bond of a defaulting trustee—he can be cited under section 2728 of the Code of Oivil Procedure only on a voluntary accounting — under section S605 the trustee may be cited to account although letters testamentary to him have not been revoked — an order of removal is a revocation of the letters — the accounting binds the surety although he is not a party thereto.</p> <p>A person who had heen appointed executor and trustee under a will was duly-discharged from all liability as executor by a decree of the Surrogate’s Court. He continued to act as testamentary trustee for some time thereafter and until he was removed by an order of the Surrogate’s Court, and another person was appointed testamentary trustee in his place. No order ■ was ever entered expressly revoking the letters testamentary granted to him.</p> <p>Upon the application of the substituted testamentary trustee the removed trustee rendered an account, by which it appeared that he had converted to his own use the whole amount of the trust fund. The surrogate thereupon made a decree directing him to pay the amount of the trust fund to the substituted trastee.</p> <p>Upon an appeal from, this decree taken by the surety upon the removed trustee’s bond, who was not made a party to the accounting proceeding, it was</p> <p>Held, that section 3728 of the Code of Civil Procedure, providing that the sureties upon the official bond of an executor or administrator may be cited to attend a settlement of his accounts, only applies to a voluntary accounting by the executor or administrator;</p> <p>That the surrogate, under section 2605 of the Code of Civil Procedure, had authority at the instance of the substituted trustee to require the removed trustee to render an account, even though there had been no express order revoking the letters issued to the removed trustee;</p> <p>That the order of removal operated in substance and effect as a revocation of such letters;</p> <p>That the fact that the decree was made without notice to the surety did not prevent it from being binding upon him.</p>

Appeal by the defendant, the Erie 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 Orange on the 3d day of March, 1902, upon the decision of the court, rendered after a trial at the Orange Special Term, enjoining the defendant from the maintenance of a culvert, except upon certain conditions. '

<p>Master and servant — contract for five years, shortly before the expiration of which period the master expresses a hope that their relations would continue for many years—a contract from year to year presumed from continued service—pleading amended to conform to facts — the bringing of a suit held not to justify a discharge.</p> <p>In an action brought to recover damages arising out of the plaintiff’s wrongful discharge on August 21, 1900, from the defendant’s employ, the complaint alleged the making of a contract under which the employment was to continue for a period of five years from January 1, 1898.</p> <p>Upon the trial it appeared that the plaintiff had been employed by the defendant under a contract for a period of five years expiring January 1, 1898; that in 1897 the plaintiff interviewed the president of the defendant, told him that the contract was about to expire and requested that he be seasonably notified if there was to be any modification thereof; that in response to this the president replied that he hoped the plaintiff and himself would continue their business relations for many years to come; that the plaintiff continued in the employ of the defendant until August, 1900, when he was discharged without cause.</p> <p>Held, that the evidence did not establish a renewal of the previous contract for a further term of five years, but that it was sufficient to support a finding that the plaintiff had been employed from year to year under the terms of the previous contract;</p> <p>That in order to sustain a judgment rendered in favor of the plaintiff upon the latter theory, the Appellate Division would deem the pleadings amended in accordance with the proof;</p> <p>That the fact that the plaintiff, during the continuance of his employment, acting in the honest belief that the defendant had unlawfully interfered with his rights under the contract of employment by placing a subordinate in charge of a portion of the department managed by him, brought an action against the defendant to obtain an injunction restraining the alleged unlawful interference, did not amount to insubordination justifying his discharge.</p>

Appeal by the defendant, John T. Rowland, 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 19th day of June, 1902, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

<p>Trust to pay the income of a fund to three children and, upon the death of two, to pay the corpus to the survivor ■—it cannot he terminated hy a release hy the beneficiaries to themselves as remaindermen.</p> <p>A testatrix devised her residuary estate to trustees, “in trust nevertheless for the .benefit of my children, William J. Thall, Jennie Thall and Mamie S. Andre-sen, the income of said estate to be paid to them during their life; should either one of them die before the other then his or her share of the income of my estate is to go to those surviving and uron the death of two of them then the said trust shall cease and the whole of my said estate is to go to the swvivor for his or her own sole use and benefit forever. The income, however, is to be paid to my said children share and .share alike.”</p> <p>The testatrix was survived by the three children designated, and they, together with' a granddaughter, were the only persons who, at the time of the testatrix’s death, answered the description of heirs at law.</p> <p>After the testatrix’s death, the three children of the testatrix conveyed the residuary estate derived by them under the will to one Paynter, and the latter, on the same day, reconveyed such estate to them.</p> <p>Thereafter the children of the testatrix and the trustees named in the will assumed to convey to the beneficiaries all the residuary estate, for the purpose, as stated in the conveyance, of merging the trust estate in the remainder. The attempt to merge the trust estate in the remainder was made pursuant to section 83 of the Real Property Law (Laws of 1896, chap. 547) and section 3 of the Personal Property Law (Laws of 1897, chap. 417) which provide in substance that whenever a person beneficially interested in the income of a trust created for the receipt of the rents and profits of lands or the income of personal property, shall or may be or become - entitled in Ms own right to the remainder in the principal fund so held in trust, it shall be lawful for such person to make and execute a conveyance nr release whereby such person shall convey or release to himself all his right, title and interest in and to the income of such trust estate, and thereupon the estate of the trustee as to the principal fund so held in trust shall cease and determine, and the trust estate shall he and become forthwith merged in such remainder.</p> <p>Meld, that the court would not compel a party, who had entered into a contract with the testatrix’s three children to purchase a portion of the residuary real estate, to specifically perform his contract;</p> <p>•That the statutes authorizing the merger of trust estates only apply to an expectant estate to which the remainderman is so far “entitled” that his interest is beyond the possibility of being lessened or defeated in the future;</p> <p>That the interest of the testatrix’s three children in the remainder was not of such a nature, as, if all of them or the two last survivors should die simultaneously, a contingency remote but not impossible, the provision for survivor-ship would be defeated and the remainder would pass by inheritance.</p>

Appeal by the defendant, Peter Grimm, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of November, 1902, upon the. verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Pleading — what complaint alleges a specific contract of rental and not mere use and occupation — a recovery cannot he had under proof of the former where the latter ■ is alleged.</p> <p>A complaint alleged that the “ defendant is indebted to this plaintiff for the use and occupation of - a plot of ground with the building thereon erected, situate on the west side of Greenwood Avenue, between Jamaica and Lexington avenues in the Fourth Ward of the Borough of Queens from the 1st day of March, 1903, to the 1st day of May, 1903, at the monthly rent of fourteen dollars per month, payable in advance, no part of which has been paid.”</p> <p>Held, that the cause of action alleged was [not for use and occupation, but was upon a specific contract of rental.</p> <p>Semble, that in an action brought for use and occupation, a recovery cannot be had upon a specific contract of rental.</p>

<p>Appeal by the defendants, Edward F. Milliken and another, 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 21st day of May, 1902, upon the verdict of a.jury for $8,000, and also from' an order entered in said clerk’s office on the 17th day of May, 1902, denying the defendants’ motion for a .new trial made upon the minutes.</p>

Appeal by the plaintiff, Ira 0. Hunter, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 31st day of July, 1900.

Appeal by the defendant, Waburga Mehling, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 26th day of February, 1903.

Appeal by the defendant, James J. Powers, 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 13th day of December, 1900, upon the decision of the court, rendered after a trial at the Kings County Special Term, granting the plaintiff a legal separation from the defendant on account of cruel and inhuman treatment.

<p> Negligence—a person waiting newt' a street car track for a car struck by another car approaching from behind, —[when the questions as to negligence and contributory negligence are for the jury. </p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant, a corporation operating a street railway in the city of New York, it appeared that on the day of the accident the plaintiff stood facing northerly, near the defendant’s tracks, at a point where she expected that a south-bound car, which she intended to' board, would stop and start on its return journey; that while she was standing there a north-bound car, which had passed south beyond that point, approached her from behind without warning and struck her.</p> <p>It also appeared that until a month or six weeks prior to the accident the southbound cars stopped where the plaintiff was standing or twenty feet north of that spot, but that after that time their stopping point was located some distance south thereof. _</p> <p>The motorman of the car testified that he noticed the plaintiff standing close to the track, but supposed that she was far enough from the track to be out of danger. The fender and dashboard passed the plaintiff without touching her, but she was struck by the handlebar on the body of the car. The conductor testified that the handlebar projected no further than the dashboard, and it was argued from this that the plaintiff must have leaned toward the car after the fender and dashboard passed her. Two other witnesses, one of Whom was called by the defendant, testified, however, that she did not change'her position at all.</p> <p>Held, the questions of negligence and of contributory negligence were properly submitted to the jury, and that a judgment entered upon a verdict in favor of the plaintiff should be affirmed. .</p>

Appeal by the defendant,. David J. Stewart, 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 January, 1903, as denies the defendant’s motion for a bill of particulars.

<p>Appeal by the plaintiff, Christian Andres, from a judgment of the .Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 15th day of March, 1900.</p>

Appeal by the plaintiffs, Lizzie M. Palmer and others, from a judgment of the Supreme Court in favor of the defendant, Hickory Grove Cemetery, entered in the office of the clerk of the county of Westchester on the 10th day of December, 1902, upon the decision of the court, rendered after a trial at the Westchester Special Term, dismissing the plaintiffs’ complaint upon the merits.

<p>Appeal by the plaintiff, Isadore Schwartzman, an infant, by Joseph Schwartzman, 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 Kings on the 15tli. day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of December, 1902, denying the plaintiff’s motion for a new trial made upon the minutes. .</p>

Appeal by the defendants, James Stikeman and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 6th day of March, 1903, upon the verdict of a jury.

Appeal by the plaintiff, Charles Rosenthal, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendants, entered on the 28th day of January, 1903, upon the decision of the court dismissing the complaint.

<p>Negligence — injury to a wagon struck in the rea/r by a street car — questions of negligence and contributory negligence — the cost of removing the wagon, its storage, its repair and its usable value while under repair constitute recoverable damages.</p> <p>In an action brought against a corporation operating a street railway on Eighth avenue, in the city of New York, to recover damages for injuries done to the plaintiffs vehicle, it appeared that on the day in question the plaintiffs servant was driving the wagon southerly along the westerly side of Eighth avenue; that on approaching some vans which were drawn up against the west curb of the avenue he turned into the defendant’s south-bound or westerly track; that as he turned upon the south-bound track an approaching south-bound car, traveling at a speed of six to eight miles an hour, was between 100 and 125 feet away; that as the wagon got fairly straightened out in the south-bound track, the car crashed into it injuring it.</p> <p>It did not appear that there were any obstructions between; the car and the wagon, interfering with the view of either the motorman of the car or the driver of the wagon.</p> <p>Held, that the evidence was sufficient to warrant a finding that the motorman of the car was guilty of negligence, and that the driver of the wagon was free from contributory negligence;</p> <p>That the plaintiff was entitled to recover as damages the sum of ten dollars which he expended in- removing his broken wagon from the street to the storage room where he took it preparatory to sending it to the wagon maker’s for repairs; the sum of five dollars expended by him for the storage of the wagon; a charge of ninety-five dollars for the usable value of the wagon for ninety-five days, the time that was fairly consumed in rebuilding the wagon, and also the sum of one hundred and forty dollars which was charged and paid for' repairing the wagon, it appearing that all of such sums represented the reasonable value of the matters to which they respectively related.</p> <p>Bartlett and Jenks, JJ., dissented on the ground that the damages awarded were excessive. v ■ ■'</p>

<p> Default opened upon payment of costs—proceeding to a trial without taking, the objection that the costs have not been paid is a waiver thereof . </p> <p>Where, in an action brought in the Municipal Court of the city of New York, an order is made vacating a judgment rendered upon the defendant’s default upon condition that the defendant pay certain costs and disbursements, the plaintiff may refuse to proceed to the trial of the case until the defendant has complied with the conditions of the order, but, if he does not raise the objection that such conditions have not been complied with until after the trial of the action has been fairly begun and he has declared the jury drawn therein satisfactory to him, he will be deemed to have waived the objection.</p> <p>The parties to an action are at all times capable of waiving statutory or constitutional provisions made for their benefit, and may, by appearing in the action and omitting to object to the proceedings, waive a statutory requirement not jurisdictional.</p>

<p>Appeal by the plaintiff,. Lee S. Bair, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the defendant.</p>

<p>jShidence— identity of property converted with that seen and valued hy an expert — qualifications required of an expert— they a/re to be determined hy the trial judge¡ subject to review hy the Appellate Division.</p> <p>In an action brought’to recover damages for the alleged conversion by the defendants in December, 1899, of a number of oil paintings owned by the plaintiff, and which were then hung upon the walls of a certain building, an expert, who, in October, 1901, examined a number of oil paintings which were at that time hung upon the walls of the building in question, is not competent to testify as to the value oí the paintings alleged to have been converted, where there is no evidence connecting the paintings which the expert examined with the paintings claimed to.have been converted.</p> <p>Testimony given by a witness to the effect that he had been “ in the storage, teaming and auctioneering business in Cleveland, Ohio, and made a specialty of handling household goods of all .descriptions, and also art sales,” is insufficient to qualify him to testify as an expert as to the value of the oil paintings - alleged to have been converted.</p> <p>Semble, that a person seeking to qualify as an expert witness must have some special, particular or ■ practical knowledge in relation to the subiect to which his testimony will relate, and have had a course of previous habit and practice or of study so as to be familiar with it, and be skilled' enough therein to teach others. ■</p> <p>Semble, that while the question whether a witness offered as an expert has sufficient qualifications is generally one of fact to be decided by the trial judgé, the Appellate Division may reverse,a judgment if the trial judge erroneously . determines this issue of fact.</p> <p>Goodrich, P. J., dissented.</p> <p>Note.—The rest of the cases of this term will he found in the next volume, 85 App. Div.— [Rep.</p>