Volume 85 — New York Appellate Division Reports

Appeal by the defendants, Edward J. Moloughney and another, as surviving executors, etc., of Michael Moloughney, deceased, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 3d day of July, 1902, upon the report of a referee.

<p>Testimony as to transactions with a decedent—how far the giving of testimony by the executrix qualifies a claimant to testify in respect thereto — her statement on cross-examination not considered.</p> <p>In an action brought by Elizabeth Motz, as executrix of her husband, Jacob Motz, against her son, George Motz, and his wife, Mary Motz, to recover moneys which, the defendants were alleged to have received from the testator, the plaintiff testified that the defendant Mary Motz delivered to the testator, in her presence, the following writing:</p> <p>“ College Point, L. I., Sept. 27, ’99.</p> <p>“We the undersigned certify that we received from Mr. Jacob Motz §800 for one house and §1,500 for the other, making a total of §1,800, paying 4 per. cent interest.</p> <p>“ GEORGE MOTZ.</p> <p>“MARY MOTZ.”</p> <p>The plaintiff also testified that the said Mary Motz then said that the writing, which was-found among the testator’s papers after his death, was for “the §1,800 at four per cent.”</p> <p>The plaintiff further testified that she heard a conversation between her husband and the defendant George Motz about a mortgage, and testified thereto as follows: “My husband said that George Motz should make a mortgage for the §1,800 at 4 per cent. * * * He said he had no money, but as soon as he had money” — to pay for drawing the mortgage— “he would make it ”</p> <p>On cross-examination she testified without objection that she knew of moneys that her husband gave to the defendant George Motz, and was always present when such moneys were given; that she could not remember the exact occasions, but that these transactions were always in her presence, at her home.</p> <p>Held, that it would have been competent for the defendant George Motz, on his direct examination, to testify in relation to the conversation between himself and the deceased wherein the matter of drawing the §1,800 mortgage was discussed, but that, as this was the only transaction between the deceased and the defendant Georgs Motz, to which the executrix testified on her direct examination, it was incompetent for the said George Motz, upon his direct examination, to answer the following questions: “ Did you have any money transactions with your father? ” “ Did your father, in the presence of yoür mother, hand you moneys as she testified to?” and also, “Was she present on any occasion when your father handed you any money?"</p> <p>That the testimony given by the executrix in respect to the transaction referred to in the last two questions, having been given upon cross-examination, could not be said to have been in her own behalf, within the meaning of the exception contained in section 829 of the Code of Civil Procedure.</p>

Appeal by the defendant, The Prudential Insurance Company of .L America, from a judgment of the City Court of the city of Yonkers in favor of the plaintiff, entered in the office of the clerk of the said court on the 17th day of September, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of September, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>An assignee for creditors, who takes possession of premises demised to Ms assignor becomes liable for the rent while he occupies them — although the assignment is void, he is estopped to assert it.</p> <p>Where a lessee assigns his whole estate without providing for any reversion to himself, there is thus created, as between the assignee and the lessor, a privity of estate entitling the lessor to maintain an action for the rent directly against the assignee.</p> <p>An assignee for the benefit of creditors of a lessee may elect whether or not he will accept the lease. If the assignee, with the knowledge and consent of the lessor, enters into the possession of the demised premises, he is liable individually for the value of the use and occupation of the premises during the time he remains in possession thereof, notwithstanding that the assignment has been declared void ah initio; in such a case the assignee is estopped from asserting the invalidity of the assignment.</p>

Appeal by the plaintiff, John S. Decker, from a judgment of the-Supreme Court in favor of the defendant, the Erie Railroad Company, entered in the office of the clerk of the county of Orange on. the 12th day of June, 1902, upon the dismissal of the complaint, as-to said defendant, by direction of the court after a trial at the-Orange Trial Term.

Appeal by the defendants, Thomas Sturgis, as fire commissioner of the city of New York, and another, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of March, 1903, granting the relator’s motion for a peremptory writ of mandamus requiring the defendants to employ the relator in some position in the fire department of the city of New York, not requiring active service as a…

<p>negligence — rule as to equality of rights between vehicles and street can's at street intersections — not applicable where the vehicle simply crosses at such intersection from one side to the other of the street upon which it .and the car are both traveling.</p> <p>A man driving a wagon along an avenue in which a street railway was operated, when he reached a point where the avenue was intersected by a street, attempted to drive across the tracks for the purpose of stopping at a house on the other side of the avenue. While-so engaged his wagon was struck by a. street car and he was injured.</p> <p>Held, that the rule that at intersecting streets the rights of a street car and of a crossing vehicle are equal had no application, and that the driver’s conduct was to be considered just as though there had been no intersecting street at the point where he attempted to cross the tracks.</p>

Appeal by the plaintiff, John Langley, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of' the clerk of the county of Queens on the 2oth day of June, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from ah order-entered in said clerk’s office on the llth day of July, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the relator, Emma Bita Auwell, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1903, denying.her application for a peremptory writ of mandamus.

Appeal by the defendants, George Mole, Sr., and others, composing the Board of Audit of the Town of Hempstead, from a final order of the Supreme Court, made at the Nassau Trial Term and entered in the office of the clerk of the county of Nassau on the 2d day of October, 1902, as resettled on the 14th day of January, 1903, granting the relator’s motion for a peremptory writ of mandamus, commanding the appellants to reaudit the bill of the relator for services claimed to have…

<p>Detachment of interest coupons from bonds&emdash;it does not deprive them of the security of the mortgage&emdash;action to foreclose the mortgage because,• of their non-payment &emdash; •when the trustees of the mortgage may sue without any action on the pa/rt of the bondholders &emdash; demand not necessary where the place specified therefor no longer exists&emdash;extra allowance beyond §200 pi’oper in a difficult and extraordinary mortgage foreclosure suit.</p> <p>The detachment of interest coupons from bonds secured by a trust mortgage does not deprive the holders of the coupons of the security of the mortgage.</p> <p>A trust mortgage given to secure an issue of bonds having interest coupons attached thereto contained the following clauses:</p> <p>‘' Mfth. In case default shall be made in the payment of any half year’s interest or* any of the aforesaid bonds at the time and in the manner in the coupon issued therewith provided the said coupon having been* presented and the payment of the interest therein specified having been at the place where it is payable as herein provided and such default shall continue for the period of six months, then, and in such case such trustee upon the request in writing of the owners of one-half of the said bonds hereby secured then outstanding," may elect to and can thereupon by such election makefile principal sum secured by all said bonds to become and be immediately due and payable anything contained in the said bonds or herein to the contrary notwithstanding," and,</p> <p>“ Seventh. ín case of default as hereinbefore defined the said Trustee may adopt any legal or equitable method for foreclosing this mortgage and enforcing the trusts herein contained or for collecting the principal and interest of the bonds secured hereby and may have appointed a Receiver of all property, real and personal, covered by this mortgage who shall have and exercise the powers by law provided for Receivers of railroad Corporation.”</p> <p>Held, that the provisions of the 7th section conferred ample power upon the trustee to sue for the foreclosure of the mortgage and compel the sale of the mortgaged premises to the extent necessary to pay interest represented by unpaid coupons detached from the mortgage, although a majority of the bondholders had not set the trustee in motion as provided for in the 5th section of the mortgage;</p> <p>That, assuming that a demand for the payment of the coupons in question was necessary, such demand would have to be made at the place where the interest was payable by the terms of the mortgage, to wit, at the office of the mortgagor corporation, and that as it appeared that such company had not maintained any office since the year in which the coupons were detached from the bonds, the trustee was under no obligation to make a demand of payment;</p> <p>That interest was allowable upon the coupons from the time that they were detached from the bonds and passed into separate ownership, thus becoming distinct negotiable instruments.</p> <p>Prior to 1898 section 3253 of the Code of Civil Procedure provided as follows: “ In an action brought to foreclose a mortgage upon real property, or for the partition of real property, or in a difficult and extraordinary case, where a defense has been interposed * * * the court may also, in its discretion, award to any party a further sum, as follows: 1. In an action to foreclose a mortgage, a sum not exceeding two and one-half per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars. 2. In any other case or special proceeding specified in this section, a sum not. exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved.”</p> <p>In 1898 the section was amended by substituting for the words “other case”' contained in the 2d subdivision, the word “ action.”</p> <p>Held, that the effect of the amendment was to permit the court in' a difficult and extraordinary action to foreclose a mortgage upon real property to grant an extra allowance of five per cent upon the sum due upon the mortgage, even though the amount of the extra allowance exceeded the sum of §200.</p>

<p>Appeal by the defendant, Thomas F. Hayes, from an order of the Supreme Court, made at tim Kings County Special Term and entered in the office of the clerk of the county of Kings on the 31st day of December, 1902, granting the plaintiff’s motion for judgment on the ground that said defendant’s answer was frivolous, and directing the entry of judgment against said defendant.</p>

Appeal by The Brooklyn Teachers’ Association and others from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of February, 1903, denying said appellants’ motion for a peremptory writ of mandamus.

<p>A single objection, ruling and exception covers all like evidence — exception to evidence going to the merits in an equity case — a party cannot impeach his own witness.</p> <p>A single objection, ruling and exception upon a question of evidence is sufficient, although not repeated, to cover all of the same class of evidence introduced upon the trial.</p> <p>An exception to a ruling upon a question of evidence, which, goes to the merits of the case, cannot he disregarded, even though the action he one in equity.</p> <p>Upon the trial of a judgment creditor’s action, the plaintiff called certain of the defendants as witnesses and offered in evidence their depositions taken in supplementary proceedings. The court admitted the depositions as evidence of admissions hy the parties making them, but, in disposing of the case, treated the depositions as evidence competent to impeach the testimony given by the parties making them after their depositions had been placed in evidence. .</p> <p>Held, that the depositions were not competent for the purpose for which they were considered by the court.</p>

<p>Appeal by the defendant, the Long -Island Investment and Improvement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 4th day of December, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, decreeing the specific performance of a contract for the sale of real estate.</p>

Appeal by the plaintiffs, Howard Cohen and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of March, 1903, granting the defendant’s motion for a change of venue.

<p>Mechanic's lien — a personal judgment is not proper where no lien could heme been . acquired.</p> <p>In an action to foreclose a mechanic’s lien, in which it is determined that the plaintiff never had, and never could have acquired, a valid mechanic’s lien, the ■ court has no power under section 8413 of the Code of Civil Procedure to grant the plaintiff a personal judgment against the defendant.</p> <p>Semble, that if section 8413 of the Code of Civil Procedure authorized the rendition of.a personal judgment in such a case, it would he unconstitutional.</p>

<p>Exemption from, taxation — land used for cháritcible and benevolent purposes by the Missionary Bisters of the Third Order of Bt. Erancis held to be exempt.</p> <p>A number of sisters of a voluntary unincorporated religious order organized a corporation known as “Missionary Sisters of the Third Order of St. Francis,” pursuant to chapter 316 of the Laws of 1848. The business of the corporation, as set forth in the articles of incorporation, was to “instruct the ignorant, particularly the poor, tend the sick, visit hospitals and prisons when called upon to do so; to shelter, guide and instruct orphan children and to do other kindred offices of charity and benevolence as occasion may require.”</p> <p>The corporation conducted a school for children and young women. Pupils who-could afford to do so paid a substantial fee for tuition, but others paid no-tuition fee. The corporation used all the revenue of the school in its support • and maintenance, and the institution was not self-supporting, the deficiency being met by contributions from the unincorporated religious order. Some of the employees of the school were paid a reasonable compensation for the services rendered by them, but, in addition to these, there were twenty sisters, of the unincorporated religious order who rendered services without any pecuniary compensation.</p> <p>The corporation owned two parcels of land, separated by a highway, which, had been purchased with money, most of which had been supplied by the unincorporated religious order without security of any kind for its' repayment. Upon the larger of these two parcels was situated the school building, and also-several other buildings connected with the school. Vegetables and other-produce, all of which were used to supply the needs of the school, were grown, on this parcel. The parcel was also used as a recreation ground for the exclusive. use of the pupils of the school.</p> <p>The corporation made no use of the smaller parcel except to take lumber therefrom for the purpose of improving the other portions of its grounds.</p> <p>Held, that the larger parcel was exempt from taxation by virtue of the Tax Law (Laws of 1896, chap. 908, § 4, subd. 7, as amd. by Laws of 1897, chap. 371) which provides that .“The real property of a corporation or association organized exclusively for the moral or mental improvement of men or women or for religious, bible, tract, charitable, infirmary, educational * * * purposes- * * * or for two or more of said purposes and used exclusively for carrying out thereupon one or more of such purposes * * * shall be exempt from taxation; ” '</p> <p>That the smaller parcel was not used exclusively for educational purposes or for educational purposes at all, and was, consequently, not exempt from taxation under that statute;</p> <p>That the evidence did not substantiate the claim, that the main purpose of the-corporation was to enable the sisters of the unincorporated association, residing; at the school, to lead a passive life of religious meditation, and that the primary purpose of the school was to afford rüental relaxation to such sisters by-furnishing them with a congenial occupation.</p>

<p>Replevin — the court cam, direct a party to be brought in only in an equity case—a third party filing a claim, to the property can be brought in only on his own application.</p> <p>The 1st paragraph of section 452 of the Code of Civil Procedure, which provides, “The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must direct them to be brought in,” is only applicable to equitable actions.</p> <p>Under the 2d paragraph thereof, which provides, ‘ ‘ And where a person, not a party to the action, has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, or in real property for injury to which the complaint demands relief, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment,'' the application must be made by the party to be brought in.</p> <p>When, after the commencement of a replevin action and the levy under the writ, a third party files a claim to the property with the sheriff, the plaintiff is not entitled, over the objection of the third party, to have the third party brought in as a party defendant.</p>

Appeal by the defendant, The Brooklyn Heights 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 Kings on thé 18th day of January, 1902, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 30th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the…

Appeal by the defendant, Noah Loder, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the, 26th day of March, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the ljth day of March, 1902, denying the defendant’s motion for a new trial made upon the minutes. '

<p>Pleading—separate defenses which might be proved under a general denial stricken out — defense that a town incorporated into the Greater New York had, before that event, against public policy, increased the pay of one of its employees.</p> <p>The complaint in an action brought against the city of New York alleged that prior to January 1, 1898, the time when the Greater New York charter (Laws of 1897, chap. 378) took effect, the plaintiff was a regularly appointed clerk of one of the villages incorporated into the city of New York at an annual salary of §1,200; that, pursuant to section 1536 of the Greater New York charter, he was on or about the 1st day of December, 1897, assigned to duty in the office of the city clerk of the city of New York; that he performed work in that office in connection with the records of the village of which he had formerly been the clerk from January 1, 1898, to March 29, 1898; that there was owing to him for such services the sum of §293.67; that he had presented his claim to the comptroller, but that it had not been paid.</p> <p>The defendant denied all the allegations of the complaint, except its incorporation and the presentation and non-payment of the claim. It alleged as a first and separate defense that the office of village clerk of the village mentioned in the complaint was on January 1, 1898, abolished, and that the plaintiff was not • assigned or transferred, as alleged in the complaint, and did not in any way become an employee of the defendant.</p> <p>For a second and separate defense, the defendant alleged that the plaintiff never reported for duty or entered upon the discharge cf the duties of the position mentioned in the complaint.</p> <p>For a third separate and partial defense, the defendant alleged that if the plaintiff was appointed village clerk it was at the salary of §200 per annum, and that the attempt to fix the salary at §1,200 was null and void and against public policy and a fraud upon the city of New York, and that the village officers when fixing the salary at that amount neither intended to nor did really act for the village, but for the city of New York, for which they had no power to act.</p> <p>Held, that the matter set forth in the first and second separate defenses could be proved under the general denial, and that such defenses were properly stricken out as irrelevant and redundant;</p> <p>That the third separate and partial defense was properly pleaded, for the reason that the defendant would not be permitted to give evidence tending to show that the contract was against public policy and, therefore, illegal, without an allegation to that effect.</p>

Appeal by the relator, David Havron, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 18th day of November, 1901, dismissing an alternative writ of mandamus theretofore issued in the proceeding.

Appeal by the defendant, Robert L. Eorris, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 5th day of March, 1902, upon the report of a referee. The defendant had been the guardian for the plaintiff during her minority, and had in his possession certain moneys belonging to her.

Appeal by John S. Smith, as executor, etc., of Obadiah Chase, ■ deceased, from a decree of the Surrogate’s Court of the county of Schuyler, entered in said Surrogate’s Court on the 19th day of November, 1902, determining that certain moneys belong to J-Monroe Palmer, as executor, etc., of Elizabeth Farrington, deceased, and refusing .to compel him to account therefor to the appellant.

<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 defendant, Clinton H. Pierce, from a judgment of the County Court of Montgomery county, entered in the office of the clerk of the county of Montgomery on the 12th day of March, 1902, affirming a judgment of the Court of Special Sessions of the city of Amsterdam, rendered on the 21st day of October, 1901, convicting the defendant of a violation of a city ordinance of the city of Amsterdam.

Appeal by the defendant, Salem Twist, from a judgment of the-County Court of Tompkins county, entered in the office of the clerk of the county of Tompkins on the 6th day of January, 1903, upon the decision of the court rendered after a trial before the. court without a jury.

Appeal by The Board of Home Missions of the Presbyterian Church in the United States of America and others, residuary legatees named in the last will and testament of Sophia M. Beers, deceased, from portions of a decree of the Surrogate’s Court of Otsego county, entered in said Surrogate’s Court on the 27th day of March, 1903.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, as lessee of the Boston and Albany Rail-toad, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 27th day of October, 1902, upon the verdict of a jury for $4,000, •and also from an order entered in said clerk’s office on the 24th •day of October, 1902, denying the defendant’s motion for a new trial made upon the…

<p>Appeal by the defendant, Edward B. Buell, from so much of art order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Delaware on the 26th day of April, 1902, as denies the defendant’s motion for an ■ order requiring the plaintiff to separately state and number the causes of action alleged in the. complaint.</p> <p>This action was commenced against the defendant to recover penalties for an alleged violation of the Agricultural. Law. .The "" 3d paragraph of the complaint is as follows: “ Upon information and belief that the defendant on or about the 15th day of October, 1901, at Miller’s Station, in the county of Delaware, hi. Y., did expose for sale, offer for sale, and sell, a quantity of impure and adulterated milk, to wit, five cans of milk, in violation of sections ■ 20, 22 and 23 of Chapter 338 of the Laws of 1894* and the amendments thereto.”</p> <p>The complaint demands judgment against the defendant for $500. This motion was made by the defendant to require the plaintiff to file an amended complaint wherein should be separately stated and numbered the causes of action set forth in the complaint. The motion was denied.</p>

Certiorari issued out of the Supreme Court and attested on the 26th day of April, 1902, directed to Nathan L. Miller, Comptroller of the State of New York, commanding him to certify and return to the office of -the clerk- of the county of Albany all and singular hie-proceedings, decisions and actions in refusing to allow- the claim -of Essex county filed with him July 31, 1901. The relator is a municipal corporation and one of the political divisions of the State of New York.

<p> .Specific performance—an oral agreement to give.a lease for twenty years to a eorpo-r ration made, by its president, the contract owner of the land—specifically enforced against his children to whom, he caused the property to be conveyed, </p> <p>■Charles F. Horstmann,, who, with a number of others,, had agreed to associate ■ themselves in the conduct of a lumber business, entered into a contract for the purchase of a parcel of real estate upon which the business should be conducted and. paid §509 on account of the purchase price, which was $8,000. Subsequently a corporation was organized and Horstmann agreed that he would lease the land to the corporation for a period of twenty years at six per cent on his investment. Horstmann was elected president of the corporation and at a meeting, at which all of the incorporators, including Horstmann, were present, a resolution was duly passed to the effect that the corporation leased the property from Horstmann for ten years, with a-privilege of ten more, at the rate of §480 per year, being six per cent on the investment of §8,000 and that the corporation would erect the necessary buildings thereon.</p> <p>The corporation entered into possession of the real estate,, filled it in and erected buildings and installed machinery thereon at an expense of §47,000. After the expenditure of this sum the premises were, at the instance of Horstmann, conveyed by the vendor to one of Horstmann's daughters. She subsequently conveyed an undivided one-half interest in the property to her sister. Subsequently Horstmann procured the buildings on the property to be insured in the name of the corporation and caused a statement to'be inserted in the policy to the effect that the insured buildings stood on leased land.</p> <p>Thereafter, at a meeting of the creditors of the corporation, an agreement, signed by Horstmann, was entered into extending the time for the payment of the corporation's indebtedness. This agreement contained the following clause: “It is especially understood and agreed, however, that the above provisions are null and void unless Charles Horstmann, a member of said corporation,' shall give, or cause to be given, a lease to said corporation of the lands and ■buildings occupied by said corporation for the period of ten years with the' privilege of ten more at the now existing rental which the said Horstmann agreed to do at once. * * * The consideration of the above provisions is the giving or the causing of said lease to be given by said Horstmann, Tie Timing originally agreed to give said lease to said corporation."</p> <p>The lease, not having been executed, the directors of the corporation began a proceeding for its voluntary dissolution, and the receiver appointed in that proceeding instituted an action to compel specific performance of the agreement to execute the lease.</p> <p>Meld, that the contract made between Horstmann and the corporation was binding upon him;</p> <p>That a director or officer of a corporation is not precluded from entering into contracts with it for his personal benefit, where the rights of the corporation are fully protected;</p> <p>That such contracts, especially where the. corporation is represented by a majority of the directors, exclusive of the party interested, are not void, but are simply voidable at the suit of the corporation or persons claiming through it;</p> <p>That, although section 324 of the Beal Property Law (Laws of 1896, chap. 547) provides that an oral lease of real property for a longer period than one year is void, the corporation having entered into and remained in the exclusive possession of the property and having expended large sums of money in permanent ■and substantial improvements upon the faith of the- oral agreement, the court had power, under section 234 of the Beal Property Law, to direct the specific , performance of such agreement;</p> <p>That, as it appeared that Horstmann’s daughters took title, with full knowledge of the expenditures made upon the property by the corporation, and with the understanding that the corporation was to have a lease of the property,, they were bound to carry out the agreement made by Horstmann with the corporation, notwithstanding that one of them was an infant.</p>

Certiorari issued out of the Supreme Court and attested-on the 29th day of October, 1902, directed to John T. McDonough, as.

Appeal by the defendant, Christopher J. Slauson, from a judgment of the Supreme Court, rendered on the 30th day of December, 1902, convicting him of a felony, and also from an order entered in the office of the clerk of the county of Albany on the 3d day of February, 1903, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence.

Appeal by the defendants, John E. Wallace and another, from a judgment of the County Court of Montgomery county in favor of the plaintiff, entered in the office of the clerk of the county of ■ Montgomery on the 12th day of March, 1902, affirming a judgment of the Court of Special Sessions'of the city of Amsterdam, bearing date the 17th day of. October, 1902, convicting the defendants of a misdemeanor.

Appeal by the plaintiff, Arvilla Grandy, from a final judgment of the County Court of St. Lawrence county in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 28th day of January, 1902, upon the decision of the court rendered after a trial at a Trial Term of said court, before the court without a jury, reversing a judgment of a justice of the peace of' the town of Hermon, St. Lawrence county, in favor of the plaintiff, entered on…

Appeal by the defendant, The Farmers and Merchants’ State Bank of Oneida, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 16th day of January, 1903, upon the report of a referee.

<p>Corporate franchise tax — average cash balance in banks, how arrived at.</p> <p>A domestic corporation organized under the Business Corporations Law was incorporated for the following purposes, “the construction, extension, repair, improvement, equipment of; and furnishing the motive power for railroads- and other works, and aiding any corporation or individual in such construction, extension, repair, improvement, equipment and furnishing of motive power.”'</p> <p>The certificate of incorporation contained the following provision: “The said corporation shall be authorized to purchase, acquire, hold and dispose of the stocks, bonds and other evidences of indebtedness of any corporation, domestic or foreign, and issue in exchange therefor its stock, bonds or other obligations.”'</p> <p>The corporation did. not have a salary list or payroll and did not own or operate a railroad, but it did own large amounts of the -stock óf numerous street railroad corporations and had furnished and was furnishing such street railroad, corporations with money for construction purposes. It also had a bonded indebtedness of $7,000,000 and it was necessary for it to have on hand money to pay the semi-annual interest on such indebtedness and money with which to. pay taxes and incidental expenses.</p> <p>In April, 1901, the corporation sold a quantity of bonds of another corporation, which it had acquired pursuant to a contract which obligated it to spend. $1,500,000 on the property owned by the corporation issuing the bonds. The bonds were sold for the purpose of obtaining money with which to carry out the contract and to further other purposes for which the corporation was organized. The proceeds of the bonds were distributed among several banks and portions thereof were used from time to time for the purposes contemplated at the time of the sale. No part thereof was ever separated and held as idle, uninvested or unemployed funds.</p> <p>Held, that in determining, for the purpose of assessing the franchise tax against the corporation, the average cash bank balance held by it, it was proper to treat the proceeds of the bonds as a part of the cash on hand.</p>

<p> Railroad company — liability of, for flooding land by a change in the course of surface water caused by its embankment'—competency, as evidence, of a letter written by one signing as superintendent of the railroad and having its name printed at the top. </p> <p>In an action brought against the Lehigh Valley Railroad Company to recover damages resulting from the flooding and washing out of the plaintiff’s vineyard and orchard, it appeared that the plaintiff’s farm and the defendant’s railroad embankment were upon a hillside, the farmbéing below the embankment; that prior to the construction of the railroad, the surface water worked gradually down from, the hillside toward the plaintiff’s premises and found its ■ way through a natural ravine into a lake; that in the construction of the railroad the defendant conducted the surface water from the hillside above the embankment along the upper side of such embankment through a waterway under its tracks into a small ditch which ran through intervening lands to a highway adjacent to the plaintiff's premises and thence along the highway to the ravine.</p> <p>Prior to the construction of the railroad embankment the ditch was sufficient to carry off all of the surface water which percolated into it, but' after the construction of the railroad embankment the increased volume of water diverted into the ditch enlarged its size very greatly and on one occasion an overflow occurred which caused serious damages to the plaintiff’s premises. The sluice-way, by which the water was carried across the highway, was constructed by the railroad company in conj unction with, or by the acquiescence of, the highway commissioner.</p> <p>Held, that the railroad company was liable for the damages caused by the overflow;</p> <p>That the authority conferred on a railroad corporation to construct and maintain its road does not authorize it to commit a nuisance to the injury of an individual, although the construction and operation of the railroad cannot be accomplished without such act;</p> <p>That a letter written to the plaintiff in reference to the injury done by the overflow, bearing the printed heading, “ Lehigh Valley Railroad * * * Office of ■ the Superintendent * * * O.O. Esser, Superintendent,” and signed, “O. O. Esser, Superintendent,” was not admissible, in the absence of proof that Esser actually was the superintendent of the railroad company and was authorized to act in its behalf.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the'clerk of the county of Ulster on the 30th day of April, 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Minerva Seoville, as administratrix, etc., of George R. Seoville, deceased, from an order of the county judge of Warren county, entered in the office of the clerk of the county of Warren on the 26th day of March, 1903, discharging the relator from the custody of the sheriff of Warren county under a writ of habeas corpus.

<p>Principal and agent—when an agent earns his commission although the contract is not in writing and not, therefore, enforaible against the purchaser — an exception to. the direction of a verdict is sufficient— the party excepting need not ask for judgment or’ to go to the jury.</p> <p>An agent employed to sell automobiles on commission, who effects a sale of an automobile to a responsible party for §2,000, the price stipulated by his principal, upon terms satisfactory to the principal, is, in the event of the refusal of ' his principal to perform the contract of sale by delivering the automobile and accepting the purchase price, entitled to receive his commission for effecting the sale, notwithstanding that the contract was not in. writing and that the vendee might, on that account, have refused to accept the automobile when-tendered to him.</p> <p>Where, upon the trial of an action before a jury, the defendant moves for the direction of a verdict, the plaintiff,, by neglecting to make a motion for the direction of a verdict or for leave to go to the jury, does not thereby consent to allow the court to pass upon the issues involved in the action without the aid of the jury.</p> <p>In such a case an exception taken by the plaintiff to the direction of the verdict in favor of the defendant entitles the plaintiff to review upon appeal the propriety of the-ruling. ' ,</p>

Appeal by the defendant, the Schenectady 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 Albany on the 19th day of December, 1902, upon the verdict of a jury-for $300 ; also from so much of an order entered in said clerk’s office on the 6th day of December, 1902, as imposed upon the defendant the payment of costs as a condition of granting a new trial, and also from an order enteréd in said…

<p>Appeal by the plaintiff, Patrick J. Murtagh, from a judgment of the County Court of Franklin county in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 4th day of February, 1903, and also from an order entered in said clerk’s office on the 4th day of February, 1903, reversing, upon appeal, a judgment of a justice of the peace.</p>

Appeal by George Bradbury and another from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Chenango on the 23d day of January, 1903, setting aside the report of commissioners appointed in condemnation proceedings and ordering a rehearing before the same commissioners, unless the defendants, appellants, stipulate to reduce the award made herein to the sum of $350, on the ground that the award was excessive.

<p>franchise tax — it is payable by a corporation which has been in business only six days before the close of the fiscal year.</p> <p>Under section 181a of the Tax Law providing, “Every trust company incorpo-. rated, organized or formed under, by or pursuant to a law of this State * * * . shall pay to the State annually for the privilege of exercising its corporate franchise or carrying on its business in such corporate or organized capacity, an annual tax which shall be equal to one per centum on the amount of its-capital stock, surplus and undivided profits,” a trust company in existence at the close of the fiscal year must pay the full tax imposed thereby, notwithstanding that it has been in business only six days prior to the close of such fiscal year.</p>

Appeal by the defendants, Edwin H. Ellsworth 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 Schuyler on the 31st day of December, 1902, upon the report of a referee.

<p>. Appeal by the Town of Warrensburgh and others from an order of the County Court of Warren county, entered in the office of the clerk of the county of Warren on the 16th day of March, 1903, denying the appellants’ motion to vacate and set aside the decision of commissioners appointed herein and denying said appellants’ request that said motion be heard upon its merits.</p>

<p>Appeal by the defendant, Joseph H. Clark, as trustee in bankruptcy of Frank H. McKinnon and another, from an interlocutory judgment of the Supreme Court in favor of -the plaintiff, entered in the office of the clerk of the county of Chenango on the 28th day of November, 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 original and supplemental complaints.</p>

<p>Action to recover on quantum meruit for services rendered by a relative of the defendant’s intestate wliile a member of the intestates household — a promise to pay for them must be clearly established—charge as to the measure of compensation, based • on the intestates, wealth.</p> <p>In an action brought to recover on quantum meruit for services rendered by the plaintiff to the defendant’s intestate as “ housekeeper, secretary and companion, and in-nursing and caring for” him, in which it appears that’the plaintiff was a grandniece of the intestate, and that the services for which she sought to recover were rendered by her while living in the intestate’s household,' the plaintiff is not entitled to recover, unless she establishes, by a preponderance of evidence convincing and satisfactory, the making by the intestate .of a promise to compensate her for her services.</p> <p>Evidence, given by a third party, of a- declaration made Try a physican in the plaintiff’s presence, to the effect that the services which the latter was rendering were too laborious and were injuring her health, is hearsay and not admissible, particularly Where it does not appear that the intestate heard the physician’s declaration.</p> <p>' In such a case, particularly where it does not appear: that, the plaintiff ever- acted as.the intestate’s,,business manager, it is error for the court to charge, “ And you have a right to take into consideration in. measuring these damages the circumstances of the deceased; that' is, the amount of property which he owned, his' financial condition, because a man having large financial interests, banking interests, real estate,' tenement' .houses and mortgages, should pay more reasonably , and liberally for services of this kind than a poorer person would. You have a right to. take into consideration those facts in making up your minds how much money she is entitled to,' if she is entitled to anything.”</p>

<p>■Cancellation of a liquor tax certificate—uihat constitutes a use of property as a hotel March 23, 1896 — what evidence establishes a subsequent abandonment of the use of the premises for hotel purposes — consents of property owners required.</p> <p>Tn a proceeding for the cancellation of a liquor tax certificate, one of the issues involved was whether the premises were, on March 23, 1896, occupied as a hotel within the meaning of section 31 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312, § 22).</p> <p>Upon this point it appeared that the building was built in 1892 by one Cummings, and was occupied by him until May, 1896; that during all this period there was.a sign on the building designating it as a boarding house; that, although most of those who occupied the house were boarders at agreed prices by the week or month, Cummings received and cared for every traveler or transient guest that applied; that the building had the requisite number of rooms, and that no persons permanently dwelt therein other than Cummings’ family and servants.</p> <p>During this period no liquor was sold upon the premises, and during a portion thereof Cummings maintained a grocery store upon the first floor.</p> <p>Meld, that it could not be said that the building was not regularly kept open “for the feeding and lodging of guests; ”</p> <p>That evidence that subsequent to March 23, 1896, Cummings leased a portion of the premises, not containing the requisite number of rooms, for hotel purposes and leased the rest of the premises, with the exception of the part which was occupied by himself, for general tenement purposes, established an intention on the part of Cummings to abandon the use of the premises as a hotel;</p> <p>That, in consequence of such abandonment, a certificate authorizing the liquor traffic to be carried on in the building could not be granted without the consents of property owners required by the Liquor Tax Law.</p>

<p>Trespass — measure of damages where land of a riparian owner is flooded by the raising of a dam — the fact that the dam owner agreed, before flooding, to fill in the land does not make the action one for breach of contradi ■</p> <p>The owners of a dam across a stream, being about to raise the same, purchased from an upper riparian owner a strip of land bordering on the stream. As a further consideration for the conveyance, the dam.owners agreed with the lot owner to fill in the balance of his lot so that he would not be bothered with the back flow of the water resulting from the raising of the dam. - They further agreed that the filling should be done before the water should be flowed back.</p> <p>The dam owners proceeded to fill in the balance of the lot, but, upon the lot owner objecting to the character of the filling, they ceased operations and subsequently raised the dam and flooded the lot.</p> <p>In an action brought by the lot owner against the dam owners to recover the damages thus sustained, it was</p> <p>Held, that the cause of action averred in the complaint was not one for breach of contract, but was to recover damages for trespass;</p> <p>That, considered as an action of trespass, the proper measure Of damages was the difference in value between the lot owner’s lot as it-was and as it would have been had the dam owners filled it in in the manner required by their contract, unless the reasonable cost of repairing the injuries caused by the trespass was less than the diminution in the market value of the land.</p>

<p>An unrecorded release of part of mortgaged, premises is ineffective as against an assignee of the mortgage in good faith and for value — occupation by a purchaser of the part released is not notice.</p> <p>One Thomas, after executing a bond and mortgage to F. R. Gilbert upon certain premises, conveyed a portion of the' mortgaged premises to a railroad corporation and also obtained from the owner of the mortgage a release of the premises thus conveyed. The deed and release were both delivered to the railroad company, which at once went into and continued in possession of the premises. It recorded the deed, but neglected to record the release.</p> <p>Thereafter the mortgage was assigned to a party who paid full value therefor, without any knowledge, actual or constructive, that any part of the mortgaged premises had been released from the lien of the mortgage, except such as was imputable to him by the fact that the railroad company occupied the premises in question. His assignment was duly recorded.</p> <p>Held, that the rights of the assignee of the mortgage were superior to those of the railroad company;</p> <p>That the railroad company’s occupation of the premises, not being inconsistent with the existence of the mortgage lien, was not such as would suggest to a prudent man that it claimed by a title adverse to the mortgage.</p> <p>Smith, J., dissented.</p>

<p>Town — action against, for unliquidated damages for breach of contract —what contract by'water commissioners is authorized by chapter 451 of the Laws of WOO — a complaint alleging a contract broader than authorized, and that the town has not performed it, does not state a cause of action.</p> <p>An action cannot be maintained against a town to recover unliquidated damages resulting from a breach of contract.</p> <p>Assuming that the water commissioners of a water district in a town became offi- ■ cers of that town by virtue of chapter 451 of the Laws of 1900, such commissioners had no authority to bind the town to any greater obligation than was imposed upon it by the act.</p> <p>The commissioners, when contracting for the construction of a water works system in the district, might covenant, for and on behalf of the town, that the town would issue the bonds provided for in the statute, and would, to the best of its ability, negotiate them upon the terms therein required, and that the moneys obtained from the-sale thereof should be applied towards paying for the work done. They might further agree that, if the money were so obtained, payments would be made to the contractor every two weeks during the progress of the work at stipulated rates, but they had no authority to impose upon the town an absolute duty to make such payments, irrespective of whether or not the proceeds of the bonds were sufficient for that purpose.</p> <p>Where the contract made by the commissioners is much broader than they had authority to make, a complaint alleging that the ’ contract has not been per- . formed by the town does not state a cause of action against it.</p>

<p>Mandamus — an order to show cause requiring the production of a ballot before the court, and its examination by the court, without objection made— it presents only a question of law —failure to pi'oduce the ballot on appeal from an order directing that the ballot be counted.</p> <p>An order to show cause why a peremptory writ of mandamus should not he granted, requiring a hoard of town canvassers to count a ballot which they had rejected as void, contained a clause directing the ballot box to be produced before the court at which the order to show cause was returnable. Upon the return day the justice opened the ballot box and examined the ballots, and thereupon made an order directing the board of canvassers to reconvene and count the ballot in question.</p> <p>No motion was made to strike out the clause contained in the order to show cause directing the ballot box to be produced before the Special Term, nor was any objection made upon the argument of the motion to the action of the judge in inspecting the ballot.</p> <p>Upon an appeal from the order directing the ballot to be counted, it was</p> <p>He Id, that, as the ballot in question was before the court at Special Term, all questions of fact upon the affidavits as to what was the form of the ballot were immaterial and did not raise an issue requiring the granting of an alternative writ, the only question being one of law as to what were the rights of the parties in regard to the ballot before the court;</p> <p>That, as the ballot in question or a copy thereof had not been produced before the Appellate Division, that court was powerless to determine whether or not the judge at Special Term properly decided that the ballot was valid, and that the appeal should, for this reason, be dismissed.</p> <p>Parker, P. J., dissented. ■</p>

Appeal by the defendants, George Unger and others, acting board of'inspectors and canvassers of the town of Arietta, Hamilton county, N. Y., and another, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the. offices of the clerks of the counties of Fulton and Hamilton on the 21st day of May, 1901, vacating and setting aside an' alternative writ of mandamus theretofore granted herein upon the application of one Lee N. Foote, and also…

<p>Private park — what must be done to create one—power of the Legislature over fishing in non-navigable streams — its right to make hunting and, fishing in private parks a misdemeanor and impose exemplary damages'—effect of the stocking of such streams by the State as regards the right of the public to fish therein — consent of the owners necessary — limitation on the right of the State to confer special fishing privileges in public waters.</p> <p>The State of New York, through the Legislature thereof, may exercise the same power which, previous to the Revolution, could have been exercised by the King of Great Britain alone or by him in conjunction with Parliament, sub- . ject only to the restrictions which have been imposed by the New York State Constitution and the United States Constitution.</p> <p>The proprietors of the soil through which non-navigable streams flow have, independent of statute, the exclusive right of fishing therein.</p> <p>Section 212 of the Fisheries, Game and Forest Law (Laws of 1893, chap. 488, as amd by Laws of 1896, chap. 319) provides: “ A person owning or having the exclusive right to shoot, hunt or fish on lands, or lands and water; desiring to devote such lands or lands and water to the propagation or protection of fish, birds or game shall publish in a newspaper, printed in the county within which such land or lands and water are situate, a notice, once a week, for a term not less than four weeks in the county where the lands so described are situated, substantially describing the same and containing a clause declaring that such land or lands and water will be used as a private park for the purpose of propagating and protecting fish, birds and game. Provided, however, that all waters here-</p> <p>' tofore stocked by the State or which may hereafter be stocked by the State from any of the hatcheries, hatching stations, or by fish furnished at the expense of the State, shall be and remain open to the public to fish therein the same as though the private park law had never existed. But nothing herein contained shall be construed as affecting any rights now existing of persons owning lands or holding leases of private grounds, waters or parks prior to the passage of this act."</p> <p>Held, that the stocking by the State of .streams and waters, the b.eds of which and the adjacent lands are owned by an individual or corporation, does not' confer upon the public the right to fish therein as against one who has complied with the statute in establishing a private park unless such stocking was done with the consent of the owner or of one having a right of fishery in the stream;</p> <p>That, even if the stocking was done with the consent of such parties, only the particular stream, lake or pond thus stocked, and not the streams to which it may be tributary, is thus made public;</p> <p>That the stocking of a stream .by the State and the- upper or lower riparian owners does not have the effect of opening to the public that part of the stream situated on lands of an owner who has not consented to such dedication;</p> <p>That, in order to constitute a private park within the meaning of the section, it is not necessary to prove that fish and game are actually bred and propagated therein; it is sufficient to show that they are afforded therein a degree of protection which allows natural propagation;</p> <p>That it was competent for the Legislature, by section 215 of the Fisheries, Game and Forest Law, as amended by section 203 of the Forest, Fish and Game Law, to make fishing and hunting upon private parks, in violation of the statute, a misdemeanor, and to allow a recovery of exemplary damages therefor.</p> <p>Semble, that although the State of New York has power to regulate the right of fishing in the public waters of the State, a grant by it to any individual or association of the exclusive right to fish in any of such waters would be in the nature of an exclusive privilege or franchise and would, therefore, be . prohibited by section 18 of article 3 of the Constitution.</p>

<p>Appeal by the petitioner, George Jones, 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 6th day of November, 1902, denying the petitioner’s motion for a peremptory writ of mandamus to compel the Village of Fonda to consider the claim for injuries to property claimed to have been sustained by reason of the closing of a highway.</p>

Appeal by the. defendant, St. Regis Paper Company, from am order of - the Supreme Court, made at the Franklin Special Term, and entered in the office of the clerk of the county of Franklin oñ, the 13th day of February, 1903, vacating and setting aside a judgment in favor of the plaintiffs, and authorizing the plaintiffs to repay to the defendant the amount paid in satisfaction thereof and consolidating the action in which' said judgment was obtained with another action. .

Appeal by the defendant, Stephen Staples,, 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 20th day of October, 1902, upon the decision of the court, rendered after a trial at the Ulster Trial Term, adopting as part of it a special verdict on submitted questions after a dismissal of the complaint by direction of the court as to the defendant Cornelia H. Staples, and also from an order entered…

Appeal by the defendants, Frank H. McKinnon and another, from an order of the Supreme Court, made at the Broome Special ■Term and entered in the office of the clerk of the county' of Chenango on the 2d day of December, 1902, striking out the 2d subdivision of the supplemental answer of said defendants.

. Appeal by the Town of Ithaca and others from an order of the County Court of Tompkins county, entered in the office of the clerk of the county of Tompkins on the 27th day of March, 1903,-confirming the decision of commissioners, appointed on the application of the respondent, to determine upon the necessity of a: highway and to assess the damages therefor.

Appeal by the defendant, The American Union Life Insurance Company, from a judgment of the Supreme Court in favor-of the plaintiff,, entered in the- office of the clerk of the county of Rensselaer on the 9th day of January,. 1903, upon the decision of the court, rendered after a trial at the Rensselaer Trial Term, a-jury having-been dismissed.

Appeal by the defendants, The Cooperstown and Charlotte Valley Eailroad Company and another, from an order of the Supreme Court, made at the Otsego Special Term and entered in the office of the clerk of the county of Otsego on the 12th day of March, 1903, granting to the plaintiff a temporary crossing over the tracks of the defendants’ railroad, with notice of an intention to bring up for review upon such appeal certain intermediate orders made herein.

Certiorari issued out of the Supreme Court and attested on the 2lst day of August, 1901, directed to William J. Morgan, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the'eounty of Albany all and singular his proceedings had in denying the application of Anson R. Flower and another, relators herein, to redeem lands from a sale by the respondent for unpaid taxes.

'Cross-appeals by Sarah J. Snyder and others, and by Henry A_ Howard, as administrator, etc., of Haney Holland, deceased, from, portions of a decree of the Surrogate’s Court of Warren county,,,… Held: used and disposed-of by the said trustees in the manner hereinafter provided for the disposition of the principal of the said trust fund to be designated for my son. . “ Eighth.

Appeal by the defendant, Chester Chapman, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 27th day of October, 1902, upon the decision of the court, rendered after a trial at the Oneida Special Term, sustaining the plaintiff’s demurrer to the 4th and 5th paragraphs set up in the defendant’s answer, and also from an order entered in said clerk’s office on the 7th day of January,…

<p>Appeal by the defendants, Luther Craig and others, from so-much of a judgment of the County Court of Erie county in favor of the plaintiff, entered in the office of the clerk of the county of Erie-on the 15th day of November, 1902, upon the decision of the court, rendered after a trial before the court without, a jury, as adjudges-that each of the appellants was liable to pay a portion of the deficiency after the sale in foreclosure of premises described in the complaint.</p>

<p>Interpleader—action to recovera bond and mortgage and assignment thereof—a delivery of the assignment into court where the defendant has delivered the bond and mortgage to another claimant does not entitle him to interplead such claimant— such claimant should be made .a party defendant.</p> <p>In an action brought to compel the defendant to deliver to the plaintiff a bond and mortgage and an assignment thereof, it was alleged that the instruments were delivered to the defendant, as agent and trustee of the plaintiff, by the mortgagee, who was the plaintiff’s father, with instructions to deliver them to the plaintiff, to whom the assignment ran, upon the mortgagee’s death.</p> <p>The complaint further alleged the death of the plaintiff’s father and the wrongful refusal of the defendant to deliver to the plaintiff the bond, mortgage and assignment, and asked that the plaintiff be permitted to recover the value thereof if the defendant was unable to deliver the same.</p> <p>The defendant submitted an affidavit claiming that he had delivered the bond and mortgage to another daughter of the mortgagee at the latter’s request and under circumstances which, if true, indicated a delivery-to him. The affidavit further averred that the executor of the mortgagee was in possession of the bond and mortgage and claimed that they constituted part of the mortgagee’s estate.</p> <p>The court thereupon ordered that the executor of the mortgagee be substituted in the place of the defendant and that the latter be discharged from all liability upon delivering to the county treasurer the assignment of the mortgage.</p> <p>Held, that the order should be reversed;</p> <p>That, under the allegations of the complaint, the plaintiff had a right to challenge the validity of the return of the bond and mortgage to the mortgagee;</p> <p>That the order was not justified by section 820 of the Code of Civil Procedure,, as the defendant was not directed by such order to deliver to the county treasurer all the property which the plaintiff sought to recover, but only the assignment;</p> <p>That the order of interpleader was also improper, for the reason that the defendant did not admit liability to any one for the bond and mortgage;</p> <p>. That the mortgagee’s executor should, however, be made a party defendant;</p>

Appeal by the plaintiff, John Heidenreioh, 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 29th day of April, 1903, directing the plaintiff to serve a bill of particulars. The action was brought to recover moneys which the defendant was alleged to have collected while acting as the plaintiff’s agent, and which it was claimed that he converted to his own use.

Motion by the defendant, Charles E. Sampson, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Trial Term.

<p>Partition—power of the court in 1869 to entertain an action topdrtiiion real property devised to executors in trust — appointment therein of a guardian ad litem for an infant defendant under fourteen yean's of age who was served with the summons in the State of Virginia — effect of the appearance of the guardian ad litem — necessity of service on the infant.</p> <p>Michael O’Donoghue died in 1860, leaving a will by which he gave his residuary estate to his executors in trust to sell all the real estate and to divide the personal estate and the proceeds of the real estate into eight shares; to apply the income of one of such shares to the use of each of the testator’s eight children during then- respective minorities and, upon each of the children attaining his or her majority, to pay over to such child his or her share.</p> <p>The will contained provisions concerning the disposition of the share of any child dying previous to the division and.also a provision for disposing of the accumulation of the share of a child during infancy over and above the amount required for education and support.</p> <p>A codicil to the will revoked the direction and authority of the executors to sell all the testator’s real estate and confined such power to three specific pieces of property.</p> <p>In 1869 one of the testator’s children brought an action for the partition of real property which passed under the residuary clause, but which was not included in the specific pieces of property which the executors were authorized to sell. One of the testator’s daughters, who was a defendant in the action, was then under the age of fourteen years. Upon the petition of her mother, the latter was appointed guardian ad litem of the infant. An affidavit was pre-' sented to the court, at the time the guardian ad litem was appointed, to the effect that service had been made upon the infant, but it did not state when or where such service was made. At the time the partition suit was commenced the infant was in the State of Virginia and service had been made upon her there.</p> <p>After her appointment, the guardian ad litem appeared in the suit and it proceeded to a decree of partition and sale.</p> <p>Held, that the court had jurisdiction to entertain the partition action;</p> <p>That, under the statutes in force at the time the partition action was brought (Code Proc. § 4.48; R. S. pt. 3, chap. 5, tit. 3, §§ 1, 3), the defects, if any, in the appointment of the guardian ad litem were not jurisdictional defects, and that the appearance of the guardian ad litem in the action was equivalent to an appearance by the infant and rendered the decree binding upon her.</p> <p>Semble, that, unless otherwise provided, a guardian ad litem cannot be appointed for an infant defendant, unless previous service of the summons has been made upon the infant.</p>

<p>Appeal by the plaintiff, Alonzo M. Woolsey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Yew York on the 5tli day of March, 1903, upon the decision of the court, rendered after a trial at the Yew York Special Térm, dismissing the plaintiff’s complaint upon the merits.</p>

<p>Appeal by the defendant, the Bank of Mansfield, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of May, 1903, denying the defendant’s motion to vacate a warrant of attachment granted herein.</p>

Motion by the defendants, Henry Haumann and others, for a new trial upon a case containing exceptions, ordered to be heard at the General Term, in the first instance, upon the verdict of a ¡jury,, rendered by direction of the court after a trial at the New York Circuit Court. .

<p> Statute exempting a corporation from any assessment levied for a stated time—when an assessment is levied—modification of such an assessment on appeal—what must he shown to justify it. </p> <p>Section 1 of chapter 618 of the Laws of 1896, which provides, “ The real estate owned by any religious corporation actually dedicated and used by such corporation exclusively as a place of public worship in the twenty-third and twenty-fourth wards of the city of New York shall be exempt from all assessments for public improvements which are now levied and assessed against such real estate, or which may hereafter be levied and assessed against such real estate during three years from January first, eighteen hundred and ninety-six,” cannot be construed as granting an exemption from assessments for such public improvements as were authorized and begun during the three years from 1896, but only as granting an exemption from such assessments for local improvements as were actually levied within that period.</p> <p>Consequently, where street opening proceedings were instituted and the title to the lands taken in the proceeding vested in the city during the period covered by the exemption, but the assessment was not actually levied until after the expiration of the exemption, a religious corporation, entitled to the benefit' of the act, is not relieved from the obligation of paying an assessment levied upon it in the proceeding.</p> <p>An assessment levied in such a proceeding can, in no event, be deemed'to have been levied prior to the signing of the preliminary estimates of the commissioners of estimate and assessment, and it is doubtful whether it can be regarded as legally assessed and levied prior to the signing of the final report.</p> <p>Upon a motion to confirm the report of commissioners of estimate and assessment appointed in a proceeding to open a street in the city of New York, the Special Term is not justified in reducing the amount of an assessment, unless it appears upon the face of the report that there is a manifest error, or that the commissioners have fixed an amount which, as compared with that imposed upon the other property, is clearly excessive.</p> <p>A comparison of the parcel in question with other parcels not shown to have been similarly situated, is not sufficient to show that the assessment imposed oh the parcel in question is excessive.</p>

Appeal by the plaintiff, John Ferguson, from a judgment of the Supreme Court in favor of the defendant, Ann Arbor Railroad Company, entered in the office of the clerk of the county of New York on the 15th day of October, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p> Exclusive jurisdiction of the superintendent of buildings in New York, city overfire escapes on factory buildings—the New York Building Gode has the force of a statute. </p> <p>A special statute providing for a particular class of cases is not repealed by a subsequent statute, general in its terms, provisions and application, unless the Intent to repeal it is manifest, although the terms of the general act are broad enough to include the cases embraced in the special law.</p> <p>The Labor Law (Laws of 1897, chap. 415), which was passed nine days after the Greater New York charter (Laws of 1897, chap. 378), was not designed to take . from the superintendent of buildings of the city of New York the exclusive jurisdiction theretofore'residing in him to require the erection of fire escapes on factory buildings in the borough of Manhattan and to transfer such jurisdiction to the Factory Inspector of the.State of New York.</p> <p>The exclusive jurisdiction which the building department of the city of New York had, up to the enactment of the Greater New York charter (Laws of 1897, chap. 378), was continued by section 647 of that charter, which provides: “ The several acts in effect at the time of the passage of this act concerning, affecting or relating to the construction, alteration or removal of buildings or other structures in any of the municipal and public corporations included within the city of New York as constituted by this act are hereby continued in full force and effect in such municipal and public corporations respectively, except in so far as the same are inconsistent with or are modified by. this act; provided, however, that the municipal assembly shall have power to establish, and, from time to time, to amend a code of ordinances to be known as the ‘building code/ providing for all matters concerning * * * the construc- ' tion, alteration or removal of buildings or structures erected or to be erected in the city of New York'as constituted by this act. * * * The provisions of such ‘ building code ’ shall be in conformity with and be subject to all general laws of the estate {sic) concerning, affecting or relating to buildings or classes of buildings or other structures.”</p> <p>The provisions of such section, with respect to the enactment of the Building Code, do not establish an intention on the part of the Legislature that the jurisdiction of the superintendent of buildings of the city of New York, with respect, to fire escapes on factories, should terminate when the Building Code was enacted.</p> <p>The Building Code of the city of New York, as enacted, continued the jurisdiction residing in'the superintendent of buildings of the city of New York over fire escapes, and, inasmuch as the Building Code was confirmed by section 407 of the revised charter (Laws of 1901, chap. 466), it may be given, within .the corporate limits of the city, the force of a statute passed by the Legislature.</p>

Appeal by the plaintiff, The T. B. Clark Company, from a judgment .of the Supreme' Court in favor of the plaintiff, for nominal damages, entered in the office of the clerk of the county of New York on the 14th 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 24th day of February, 1903, denying the plaintiff’s motion for 'a new trial made upon the minutes.

Appeal, by the plaintiff, George D. Farrar, as executor,, etc., of Sarah Ellen Theall, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Mew York on the 26th day of June, 1902, upon the report of a referee.

<p>Appeal by the defendant, Jacob A. Zimmermann, 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 9th day of December,' 1902, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 11th day of April, 1903, denying said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Press Publishing 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 11th day of May, 1903, denying the defendant’s motion to compel the plaintiff to accept service of an amended answer.

Appeal by the defendants, James L. Wells, president, and others, commissioners, composing the board of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the ■ 5th day of February, 1903, granting the relator’s motion for a peremptory writ of mandamus.

Appeal by the defendant, Henry Pierre Kingsland, 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, denying' the defendant’s motion to vacate á warrant of attachment granted herein. The motion to vacate the warrant of attachment was made on the papers on which it was granted.

<p> fads appearing in the record on appeal in another case—when they cannot be used in deciding a motion—service of a summons on the former president of a corporation who has resigned in bad faith. </p> <p>In deciding a motion made at Special Term, the judge who presides thereat has no right to consider facts appearing in the record presented to the Court of Appeals in an entirely different litigation, where such record is not presented nor the facts set forth therein established on the hearing of the motion.</p> <p>Semble, that a motion, made by the receiver of a corporation, to vacate a judgment rendered against the corporation, upon the ground that service of the summons in the action was made upon the former president of the corporation after he had resigned, should be denied, where it appears that the resignation of the president was tendered in bad faith and for the purpose of throwing the corporation into the hands of a receiver.</p>

<p>Appeal by the defendant, Albert J. Adams, 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 April, 1903, •convicting him of a violation of section 344a of the Penal Code, and -also, as stated in the notice of appeal* from an order entered in said ■clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, Joseph Green and another, from, an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of the county of New York on the 28th day of April, 1903, affirming a judgment of a city magistrate of the city of New York convicting the defendants on the charge of posting advertising bills upon a fence around vacant property in the city of New York.

<p>Appeal by the relator, James S. Lehmaier, 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 June, 1903, denying his application for a peremptory writ of mandamus.</p>

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

<p>Corporation — liability of a director of a foreign corporation, in an action brought in the State of New York, under section 60 of the Stock Corporation Law, because of dividends paid out of the capital of the corporation.</p> <p>A stockholder of a New Jersey corporation, which transacts business in the State of New York (having obtained a certificate from the Secretary of State authorizing it so to do), may, under section 60 of the Stock Corporation Law (Laws of 1892, chap. 688, added by Laws of 1897, chap. 384), maintain, in the State of New York, an action on behalf of himself and all other stockholders of the corporation similarly situated, to compel a director of the corporation, who participated in declaring dividends on the stock of the corporation out of the capital thereof, in violation of section 30 of the General Corporation Law of the State of New Jersey, which is similar to section 23 of the Stock Corporation Law of the State of New York, to restore to the corporation the amount of the dividends thus unlawfully declared and paid, where it appears that the • corporation has refused to bring such an action.</p> <p>Qumi-e, whether independent of the provisions of section 60 of the Stock Corporation Law, the courts of the State of New York would entertain the action.</p> <p>Semble (per Ingraham and McLaughlin, JJ.), that the courts of the State of New York will not entertain an action to enforce a liability imposed by a statute of another State, if the liability thus imposed is penal; or, even though it is not penal, if the liability thereby imposed is not contractual in its nature or founded upon the principles of the common law.</p>

Appeal by the defendants, James L. Wells and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of May, 1903, denying the defendants’ motion to quash the writ of certiorari issued to review an assessment for taxation of the relators.

Appeal by the plaintiffs, Isidor Straus and another, composing ■ the firm of R. H. Macy & Company, 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 27th day of January, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendants’ demurrers to the plaintiffs’ complaint.

Appeal by the defendants, Seth Low, as mayor of the city of Yew York, and others, from an order of the Supreme Court, made at the Yew York . Special Term-and entered in the office of. the clerk.of the county of Yew York on the 2d day of June, 1903, granting the plaintiff’s motion for an injunction ¡pendente lite.

Appeal by the defendant, the Hamburg-American Steamship 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 24th day of December, 1902, upon the verdict of a jury for $12,500, and also from an order entered in said clerk’s office on the 20th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review…

<p>Devise — trust to pay rents to the testatrix’s husband 'and daughter, and, in case of their payment of a •■mortgage on the pi’operty, to allow them to occupy it— right of the trustee to testify, in an action to recover one-half of the amount of the- ■ mortgage paid, by the daughter, as to statements made by the husband-, then deceased, ■ in reference to the payment of the mortgage.</p> <p>" Sarah E. Theall died 'June 9, 1898, learning a will, by which she devised* a house, upon which' there was a purchase-money mortgage to her executor .in trust, “ for the following uses and purposes: to let and rent the same for and during the joint lives of my said husband and daughter, and after deducting from the rent thereof all sums necessary to he paid for interest, taxes or assessments, insurance and repairs, to pay over the rents, issues and profits to my said husband and daughter equally during their joint lives. But I do further order and direct that my said husband and daughter shall pay (one-half thereof each) the sum due on the mortgage now upon said house and lot, and upon their so doing, and upon their paying (equally) all taxes, insurance and repairs, then and in that case, instead of. letting and-rentmg.said: house, my said executor is hereby directed to permit my said husband and daughter jointly to occupy said house so long as they shall jointly agree so to do.”</p> <p>The will further provided: “ Upon the decease of my said husband or daughter, as the case may be, I give and devise said house and lot to the survivor of them at once and absolutely.”</p> <p>At the time of her death the testatrix was living with her husband and daughter in the house referred to. After her death the husband and daughter continued to reside in the house for several days, when the husband went away for a short time. He died on August 22,1896, prior to his return. Subsequent to his death the daughter paid the mortgage.</p> <p>The daughter then brought an action against the executor of the testatrix’s husband to recover one-half of the amount paid in satisfaction of the mortgage, upon the theory that the testatrix’s husband, with knowledge of the terms and conditions of the will, expressly accepted its provisions and occupied the house jointly with the plaintiff from the time of the testatrix’s death until his own death.</p> <p>Upon the trial the plaintiff called as a witness the executor of the testatrix, wholes tified that, after the death of the testatrix, he read the will to the testatrix’s husband and had a conversation with him in reference to it. The witness was then asked the following questions: “ Q. Will you state what that conversation was?” (2) “Q. In that conversation did Horace Theall state to you whether or not he accepted the provisions of the will?” (3) “Q. Did Horace Theall state whether or not he would pay one-half of the mortgage on the Twenty-first street house?” (4) “ Q. Did he make any statement relative to his intention as to his living in the house or paying a part of the running expenses thereof, or paying for the repairs thereof, or paying one-half of the mortgage?”</p> <p>Held, that the testimony sought to be elicited from the witness was not incompetent under section 829 of the Code of Civil Procedure;</p> <p>That it could not be said that the answers to the questions would have been irrelevant or immaterial;</p> <p>That, under the will of the testatrix, if her husband and daughter assumed and agreed to pay the mortgage and taxes, insurance and repairs, they were entitled to occupy the house instead of receiving the rent.</p>

<p>Interpleader — right thereto, df one asking to pay into court commissions claimed, by each of two real estate brokers.</p> <p>Where, in an action brought by a broker to recover commissions alleged to have been earned by him in effecting an exchange of real property for the . defendant, the latter admits liability for the commissions, and alleges that the commissions in question have been claimed by a firm of real estate brokers who had assisted in the negotiation of the exchange, and who claimed that the plaintiff had agreed with them that the commissions due from the defendant should be paid to them instead of to the plaintiff, the court is justified in substituting the members of the firm of brokers as defendants in the place and stead of the original defendant, upon the latter paying into court the amount of the commissions due from her.</p>

<p> Right of an indorser to intervene, where his rights are likely to he prejudiced hy the settlement of an action to which he is not a party. </p> <p>■ In an action brought to rescind,- upon the ground of fraud, a contract for the sale of stock by the plaintiffs to the defendant corporation, the defendants interposed an answer denying fraud on their part and alleging fraud upon the part of the plaintiffs, and asking for a rescission of the sale. Before the trial of the action the corporation became insolvent and a receiver of its property was appointed. The- receiver was substituted as a defendant in place of the corporation. Thereafter the receiver entered into .an agreement. with the plaintiffs, by which the plaintiffs were to pay him §10,000, and-he was to transfer the stock in suit to the plaintiffs and a judgment was to be entered adjudging that neither party was entitled to rescind the sale.</p> <p>As a part of. the purchase price of the stock the corporation had delivered to the plaintiffs certain promissory notes, §10,000 of which remained unpaid, upon which one Beecher, who was a large stockholder in the corporation, was liable as indorser. The result of the settlement was that the plaintiffs obtained the stock which they sold to the corporation and retained §20,000 of the purchase price over and above the sum paid to the receiver, together with the claim against Beecher as. indorser.</p> <p>Held, that Beecher was entitled to intervene in the action.</p> <p>Laughlin, J., dissented.</p>

Appeal by the plaintiffs, William Coverly and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 12th day of March, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, James A. McCafferty 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- New York on the 19th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of December, 1902, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by Gilbert W. Minor 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 January, 1903, directing him, as the purchaser at a foreclosure sale, to complete his. purchase.</p>

<p>Appeal by the plaintiff, Edgar H. Rosenstock, as ancillary executor, etc., of Levi Jacobs, deceased, from a judgment of the Supreme Court, in favor of the defendants, entered in the office of the clerk of the county of New York on the 26th day of January, 1901, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, as amended by an order entered in said clerk’s office on the 21st day of February, 1901.</p>

Appeal by the • relator, George A. Gress, from an order of the-Supreme Court, made at the New York Special Term and entered, in the office of the clerk of the county of New York on the 22d day of IVIay, 1903, denying the relator’s application for an order-directing the special deputy commissioner of excise to issue to him. a liquor tax certificate and dismissing a writ of. certiorari theretofore issued to review the action of the said special deputy excise-commissioner.

<p>Appeal by the plaintiff, The New Jersey Steel and Iron Company, from so much of a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 13th day of February, 1902, upon the report of a referee, as adjudges that the defendants Barr, Thaw, Fraser and The American Exchange National Bank are entitled to a lien prior to the plaintiff’s lien.</p>

<p>• Appeal by the plaintiff, James M. Mason, from an interlocutory j udgment of the Supreme Court in favor of the defendant, entered in- the office of the clerk of the county of New York on the llth day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the plaintiff’s demurrers to the first and second defenses contained in the defendant’s answer.</p>

<p>Pier property in the North river conveyed by New York city — effect of a reservation of certain streets in the deed thereof—effect of a conveyance in fee upon covenants contained in prior deeds — adverse possession does not run against the covenants— injunction to restrain the city from, causing bulkheads to be built pursuant to such covenants — the title is held by the city upon a public trust and cannot be conveyed in contravention thereof.</p> <p>In 1850 the city of New York executed two deeds to one Lindsley, conveying prop7 erty bounded on the north by the center line of Forty-third street, on the south by the center line of Forty-second street, on the west by the westerly line of Thirteenth avenue and on the east by the line of high-water mark in the North river. Bach deed contained the. following clause: “ Saving and reserving from and out of the hereby granted premises so much thereof as per said map annexed forms part or portions of Twelfth and Thirteenth avenues and Forty-third street, for the. uses and purposes of public streets, avenues and highways as hereinbefore mentioned."</p> <p>The deeds further provided that Lindsley should receive all the wharfage accruing from the premises granted, except from that portion of the premises which was included within the lines of Forty-second and Forty-third streets, the right to receive the wharfage accruing from which was reserved to the city. The deed also contained a covenant on the part of Lindsley, his heirs and assigns, to construct, upon request of the city, at his own expense, a number of bulkheads, wharves, streets or avenues which should form so much of Forty-second and Forty-third streets and Twelfth and Thirteenth avenues as should fall within the limits described in the deed and would forever keep them in repair and that such streets and avenues should always remain public streets; that, in case Lindsley should make-default in carrying out the covenants, the city might, perform them at Lindsley’s cost.</p> <p>The deeds were accompanied by maps which showed the existence of Forty-second and Forty-third streets extending to the high-water mark of the river, also the existence of Twelfth and Thirteenth avenues and the proposed bulkheads or piers to be erected on the land covered by the grant. In addition to this, such streets and avenues appeared as existing streets upon a map filed pursuant to chapter.182 of the Laws of 1837.</p> <p>At the time the grants to Lindsley were made, Forty-second and Forty-third streets were in actual existence and use to the extent shown upon the maps, the parts under water being used as approaches to the parts above water and viee versa.</p> <p>In 1852 the city granted Lindsley a pier situated at the foot of Forty-third street in the North river by a deed containing the-folio wing description: “ Beginning at the point formed by the intersection of the northerly side of Forty-third Street with the easterly line or side of the Twelfth Avenue; running thence southerly along the easterly side of the Twelfth Avenue to the northerly side of said pier; thence westerly two hundred and eleven feet three inches; thence southerly forty feet five inches; thence easterly two hundred and twelve feet two inches to the easterly side of the Twelfth Avenue, and thence southerly to a point where the southerly side of Forty-third Street intersects the said Twelfth Avenue. * * * Subject to the right of the parties of the first part to order said pier extended into the river at the expense of the said party of the second part w’henever and in whatever way they may see fit, reserving to the party of the first part to extend said pier at the expense of the corporation of the City of New York, or to grant the right to do so to other parties, if the said party of the second part fail or neglect-to extend said pier when ordered so to do, in which case the right to wharfage, etc., at the portion of the pier extended shall belong to the parties at whose expense the extension shall be made.” This pier subsequently decayed and became dangerous and was finally abandoned by Lindsley’s successor in title.</p> <p>Subsequent to 1870 a new bulkhead line was established much further out in the river than the bulkhead line in existence when Lindsley took title.</p> <p>Seld, that the clause above quoted, appearing in the deeds of 1850, had the effect of excepting from the operation of the deeds the streets laid down upon the maps annexed to the deeds, and dedicated them to the use of the public;</p> <p>That, assuming that the deed executed in 1852 conveyed, not only the pier, but the fee of the land covered by the pier, it did not destroy the force and effect of the covenants contained in the deeds executed in 1850 requiring the streets appearing upon the map to be kept and maintained as public streets and entitling the city to compel the building of such bulkheads as the city might direct;</p> <p>That if it was the purpose of the deed of 1852 to convey the lands .described therein in fee simple absolute, relieved from the covenants contained in the deeds of 1850, the deed would be void, as the city held the title to the lands included in the streets impressed with a public trust and could not, without legislative authority, convey title in contravention thereof;</p> <p>That a mesne grantee of the pier property, having entered under a qualified title, was estopped from asserting any other claim and could not acquire title to the property by adverse possession;</p> <p>That the city having, after the pier liad been abandoned, assumed to exercise the rights reserved to it under the deeds of 1850, by directing the owner of the lots lying between Forty-second and Forty-third streets to construct a bulkhead in front thereof, which bulkhead would cut off access to the pier as it had theretofore existed, the owner of the pier property was not entitled to an injunction restraining the construction of the bulkhead,, but should be remitted -to his legal remedy, if any.</p>

<p>Appeal by the relator, Consolidated Telegraph and Electrical Subway 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 25th day of May, 1903, denying-the relator’s motion for a peremptory writ of mandamus directing: the defendants to issue to said relator unconditional permits to opens streets in the borough of Manhattan for the purpose of constructing ducts for electrical conductors.</p>

<p>Appeal by the defendants, Title Guarantee and Trust Company of New York City and others, as executors, etc., of James Jennings McComb, deceased, and by Jennings Scott McComb, individually, 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 15th day of May, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, construing a portion of the will of James Jennings McComb, deceased.</p>

Appeal by the defendant, Ohauncey W. Walker, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 10th day of December, 1902, convicting him of grand larceny in the first degree, and also from an order denying his motion for a new trial and in arrest of judgment.

<p>Appeal by the defendants, The Board of Education of the .City of New York and others, from an order of theSupreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of May, 1903, denying the said defendants’ motion for an order declaring that as to them the defendant Steinson had waived his right to appeal.</p>

Appeal by the defendant, Hyman Ensler, from an interlocutory 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 21st day of January, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, awarding the plaintiffs possession of certain premises in the city of New York.

Appeal by Samuel Lenox Tredwell, individually and as trustee, etc., of Seabury Tredwell, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 13th day of April, 1903, reviving a proceeding for an accounting by the executor of said decedent, which proceeding had abated.

Appeal by the defendants, Alfred H. Smith and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of June, 19,03, as denies said defendants’ motion to vacate an order for their examination to enable the plaintiff to frame his complaint.

Appeal by the plaintiffs, Frederick W. Lewis and another, comprising the copartnership of Fred W. Lewis & 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 7th day of Hay, 1903, granting the .defendant’s motion to Vacate an order of arrest theretofore granted herein.

v Aíppeaí by the plaintiff, Robert Bóyd, from a' judgment of ,thé Supreme Court in favor of. the defendant, Lizzie H. Daily, as executrix, etc., pf Henry -.Daily, Jr., deceased,-entered in the office of-.the clerk .of the noun ty.'of: Hew'York' on-the '29th': day-pf August, 1902, upon the'decision, of the' court,' rendered after a trial at the Hew. York .

Appeal by the defendant, the Third Avenue 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 New York on the 29th day of January, 1903, upon the verdict of a jury for $12,000, and also from an order entered in said' clerk’s office on the 4th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Default—failure to demand a copy complaint within twenty days—a motion . to require plaintiff’s attorney to serve a .copy complaint and accept -an answer .is improper — it should be to open the default and for leave to .serve a demand.</p> <p>'Where an action isbegun by the service of the summons only, if the defendants ■ .desire a copy.of the complaint,- they should, in accordance with, section. 47.9-of ■ the Code-of Civil Procedure, serve a written demand for the same upon the .plaintiffs attorney within twenty days after the service of the summons upon them.</p> <p>"If the defendants neglect to serve such demand within the prescribed time, their ■- remedy is to apply "to the court to open the default and to be permitted to serve the-demand; they have no standing, whilé the.default continues, to make a motion to require the plaintiff’s attorney to serve a copy of .the complaint upon them, and for leave to plead thereto.</p>

Appeal by the plaintiff, Charles- A. Steuerwald, 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 1st day of November, 1901, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the defendant, Henry B. Sire, from an order of the Supreme Court, made at the New York Special Term and entered-in the office of the clerk of the county of New York on the 20th day of Hay, 1903, denying his motion to amend the interlocutory judgment herein, and also from an order entered in said clerk’s office on the 26th day of May, 1903, denying his motion to resettle said order entered herein on the 20th day of May, 1903.