Volume 86 — New York Appellate Division Reports

Appeal by the National Citizens’ Bank 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 its motion to vacate an order made by a justice of the Supreme Court on the 13th day of March, 1902,' for the examination of - the defendant Toplitz, a judgment debtor in supplementary proceedings, and also to vacate an order made by a justice…

Appeal by the defendant, George W. Bushnell, 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 28th day of June, 1901, convicting him of the crime of sodomy, and also from an order denying the defendant’s motion for a new trial and in arrest of judgment.

Appeal by The People of the State of New York * from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the. 26th day of March, 1903, sustaining writs of habeas corpus and certiorari theretofore allowed in behalf of the relator,' and discharging him from the custody of the warden of the city prison.

<p>Negligence—bursting of a gas receiving tank — when both the gas company and the contractor arc liable to a person injured thereby—where a complaint is framed' and a trial is conducted on the theory of negligence the action will not, on appeal, be considered as based on trespass—doctrine of res ipsa loquitur —error in charge as to liability for the injury.</p> <p>In an action brought against the Consolidated Gas Company, William J. Logan ■ and Frank J. Logan, to recover damages for personal injuries sustained, in consequence of their alleged negligence, by the plaintiff, it appeared that the-defendant gas company, through its engineering department, prepared plans for the erection, on premises owned- or leased by it, of a gas holder; guide frame and steel tank;- that it contracted with the defendants Logan for the construction thereof pursuant to the plans and specifications and" “ under the direction of the chief engineer of. the owner.”</p> <p>The specifications provided that the tank should not “be accepted until it has been proven watertight, after being filled with water-to its full height and has so remained for thirty days.”</p> <p>The tank was one hundred and. seventy-eight'feet in diameter and was forty-two-deep, twelve feet thereof being below the ground. Its capacity was 1,000,000 cubic feet of water weighing over 60,000,000 pounds.</p> <p>Upon the completion of the tank the gas company, at the request of the defendant contractors, filled the tank with water for the purposes of the test. A few hours after the process of filling the tank had been completed, it burst, and the plaintiff, who was employed in an adjacent factory, was injured by thee rush of water.</p> <p>The material of which the tank was constructed was suitable for the purpose, and if the plans and specifications had been followed, the tank would have: been able to withstand three times the pressure under which it collapsed.</p> <p>The specifications for the tank provided that the rivet holes in the plates constituting the lower portion of the tank should be drilled. The plaintiff gave evidence tending to show that by direction of the chief engineer of the gas company these holes were punched instead of being drilled; that on account of the thickness of the plates in question it was improper to punch the rivet holes therein; that the effect thereof was to diminish the resisting power of the tank to such an extent that it was unable to withstand the weight, of the water.</p> <p>There was no evidence of any external violence to the tank, nor of any fact tending to account for the accident, except unskillful and improper construction.</p> <p>Upon an appeal from á judgment in favor of the plaintiff against all of the: defendants,</p> <p>Held, that, as the complaint had been framed and the action tried upon the-theory of negligence, the question whether the defendants were liable upon the theory of a trespass should not be determined;</p> <p>That the evidence was sufficient to justify a finding that both the gas. company and the defendant contractors were guilty of negligence;</p> <p>That the fact that the gas company had committed the work of constructing the: tank to reputable and independent contractors did not, under the circumstances disclosed by the evidence, relieve the"gas company from liability;</p> <p>That the fact that the contractors had built the tank in accordance with the. specifications of the gas company, as modified by the latter’s chief engineer, did not relieve them from liability as they had held themselves out to be competent builders of work of such character and would, therefore, be presumed to-know the effect of punching the rivet holes, instead of drilling them;</p> <p>That the court properly charged the jury that the doctrine of res ipsa loquitur was applicable to both the gas company and the contractors; that it was applicable to the gas company on account of its ownership, its possession of the premises and its supervision of the work, and that it was applicable to the contractors because they constructed the tank, participated in filling it with water and were in charge of the work;</p> <p>That the court erred in charging, “The jury may take into consideration .the fact that experience teaches that water tanks, if properly constructed, do not break without adequate cause". If the jury find that there is no evidence of external violence or other adequate cause,,the fair presumption is that the breaking of the tank occurs through some serious defect in its condition, which could scarcely have escaped the observation of the persons in control thereof; and the jury may infer negligence on their part,” as the effect of the charge was to instruct the jury that the presumption of negligence on the part of the defendants was conclusive notwithstanding the evidence offered by the defendants to show proper workmanship and inspection; that the charge was also erroneous in its statement that the defect “ could scarcely have escaped the observation of the persons in control thereof.”</p>

<p>Appeal by the defendants, the United States Directory Company and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the-county of New York on the 18th day of May, 1903, appointing a temporary receiver of the defendant corporation and authorizing him to take possession of its property and effects and to complete the directory in process of completion and issue the same as contemplated by the corporation, and directing the Manhattan Storage and Warehouse Company, which is not a party defendant, to deliver to the receiver all papers and books of the corporation- deposited with it in a certain box by the secretary and treasurer of the company, and requiring the defendants Henry L. and Béuláh M. Giles-to deliver to the receiver all vouchers, contracts, books, papers, printing matter or. other property belonging to the company, and enjoining them from selling, assigning, transferring or in any manner interfering with any of the property of the company or contracting any obligation in its name, and enjoining all debtors of the company from delivering any of its property or paying any of its funds to any person other than the receiver.</p>

<p>Appeal by the plaintiff, Michael Donnelly, 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 26th day of October, 1899, upon the decision of the court, rendered after a' trial' at the New York Special Term, dismissing the complaint upon the merits.</p> <p>The action is brought for the dissolution of a copartnership, for an accounting, and to. have a bill of sale of the plaintiff’s interest in the firm to the defendant, executed on the 7th day of November, 1889, declared abandoned, rescinded and adjudged to have been taken as security for the firm’s indebtedness to the defendant.</p> <p>On the 27th day of April, 1887, the parties verbally agreed to form a copartnership for the purpose of dealing in scrap iron and similar' articles, under the firm name of M. Donnelly & Co., and no time was specified for its continance. The. appellant was to manage the business and give his entire time thereto, while the respondent was to contribute all the capital. The respondent was to receive six per cent interest on the capital invested, and the appellant was to. draw twenty-five dollars a week and two dollars per day in addition for expenses. The profits' and losses were to be shared and borne equally. The ■ respondent had previously conducted and thereafter continued a separate business of the same nature at Buffalo and Albany, and he resided in the latter city. The appellant had conducted a, similar business in the city of New York in partnership with one Dempsey. The parties had been friends since 1874, and in 1884 became brothers-in-law, having married sisters, and after that intimate family relations followed. The respondent had considerable property and states that he went into partnership with thé appellant to help him along; the appellant claims that the respondent frequently said that all he wanted out of the business was what he had invested and interest; and respondent admits that to have been his position, but denies having so stated.</p> <p>At the outset, the appellant, according to his'own-evidence, contributed $500, and other sums subsequently, but this is contradicted by the respondent. There was no specific agreement as to the amount of capital the respondent was to invest. He furnished capital from time to time as the necessities of the firm required, and then payments on account of the firm’s indebtedness to him were made as' the receipts of the business permitted. The firm had measurably increased its business, which was large and growing at the time in question. The bill' of sale recited that the partnership theretofore existing. between the parties was thereby dissolved ; that the appellant, in consideration of one dollar, sold and trans^ferred all his interest in the business and assets of the firm; that appellant had contributed no capital or money to the firm; that appellant agreed that Stephen J. McArdle should take charge of tile business, and to transfer to him all of the bank books, check books, money, drafts and notes belonging to the firm, and to account to respondent for any money, checks, drafts or notes belonging to the respondent that might come into his hands.</p> <p>Both parties agree that respondent was dissatisfied with appellant’s management of the business in the summer and fall of 1889, and talked with him concerning it every time they met. The appellant testifies, however, that the first mention of the bill of sale was made by the respondent’s wife on a visit to his house the day before its execution; that she then said that her husband had sent her down , to close up the • business ; that he. was losing money — would lose $20,000 — and had lost confidence in appellant; that he said to her in answer to this: “ I have not lost confidence in him, and to show that everything is all right in this business, I will sign everything over for one dollar as security until.such time as I can sell enough stock to pay him off, let him go to Albany where he belongs.; ” that she considered this very fair and said she would send for her lawyer and respondent to come down and fix the matter up. In his testimony as to what took place at this interview, appellant is corroborated by the testimony of his wife and niece. The appellant further testifies that, the next morning the respondent’s son, Stephen McArdle, mentioned in the bill of sale, then seventeen years of age, and Mr. Kelly, a member of the Albany bar, came to his place of business and said they were sent by the respondent; that the son informed him the respondent was going to give him another chance; that appellant referred them to the respondent’s wife, who was stopping at his house, saying that she would tell them what he was going to do to satisfy the respondent ; that they departed and returned in about an hour and arranged to go to the law office of McCall & Arnold at No. 38 Park row, where he signed the bill of sale in triplicate without reading it or having it read to him at the time, he then supposing it was the security he had offered to give; that Mr. Kelly commenced to read it to him, but he stated that was unnecessary, and that his own attorneys were in the same building, but he did not consult them.</p> <p>The respondent claims that the bill of sale was intended to be absolute, and testifies that he, not his wife, first spoke to the appellant concerning it three days before its execution; that he had complained to appellant that the business was in an insolvent condition and that he could not afford to let his money, remain in this losing business, as he had a large family and could use the money to better advantage in Albany, and that at this interview, three days before the execution- of "the bill of sale, he said to appellant that he wished to.close out the business as he was-losing money there all the time and wanted a bill of sale of everything he had, which, the plaintiff agreed to give; that on his return to Albany' he instructed his attorney to draw papers so that the business would be turned over to him so that he would have full possession in case of any trouble; that nothing was said about the instrument being intended as security, and after its execution appellant’s connection with the business was that of a clerk at a salary of twenty-five dollars a week and two dollars a day for expenses, which is the same as it had been before. The respondent’s wife admits the visit to appellant’s house at the time specified, but denies the conversation attributed to her, and claims she had nothing to do with the giving of the bill of sale; but her evidence is conflicting, and she admits having talked With appellant at that time about giving her husband a bill of sale and some paper as security. The attorney testifies that he informed appellant that respondent “was dissatisfied the way the business * * "x" '.was being conducted, and he had said they had lost money from the time: they had started in business up to that date,, the 7th of November, and he wanted a dissolution and transfer of the business,” to which appellant replied “ all -right; ” that he then went to the law office -mentioned, prepared the papers and notified appellant, who came and signed them in triplicate and was paid one dollar. The respondent’s son corroboratés the attorney, but. says appellant’s reply was, “ If Mr. McArdle is dissatisfied with the management, why .1 am satisfied to dissolve the partnership.” Both the attorney and the respondent’s son deny that they had any interview with the respondent’s wife prior to the execution of the bill of sale. She denies any conversation with them- upon that subject, but- admits that they called upon her that morning.</p> <p>After the execution of the bill' of sale,- the'appellant, the respondent’s son and the attorney visited the People’s Bank, where the firm had an account. The appellant’s evidence is not clear as to what took place there, but the attorney and respondent’s son say that an official of the hank was informed of the dissolution of the firm and shown the bill of sale, and that the account was changed to respondent’s name. They also visited the Columbia Bank, where the firm had an account. The appellant says the transaction there consisted in leaving a power of attorney authorizing respondent’s son to draw checks, and he supposed that the firm account had been transferred to respondent’s name. The attorney and respondent’s son say the bill of sale was also exhibited there. A representative of the bank testified, however, that the account was not changed, but was continued in the firm name, and a power of attorney authorizing the respondent’s son to draw checks was subsequently, filed, and this is not controverted. No firm checks were drawn by appellant for six, weeks thereafter, and all checks in the firm business during that time were drawn by respondent’s son, w'ho came to New York to represent his father and resided with appellant. It appears without substantial controversy, however, that with these exceptions, the business was in the main conducted and managed by appellant the same after as before the execution of the bill of sale. He testified that on the day after the execution of the bill of sale he met respondent at the Gi;and Central Station and, after some friendly general talk about the execution of the papers the day before, respondent asked him if he needed any money, to which he replied that he could use a little, and then respondent said, “ You make me out a little note for whatever amount you want and I will give you a check for it,” and respondent gave him a personal check on an Albany bank for $614.19 to the order of the firm, for which appellant handed him a note made in the firm name. The appellant indorsed the firm name on the check, which also bears the indorsement, “ P. J. McArdle by S. J. McArdle, Atty.” The check was deposited to the credit of the firm and used in the firm business. The respondent does not deny this conversation.</p> <p>It appears that some five or six weeks thereafter the parties met again at the Grand Central Station, and appellant’s version of the conversation which then ensued between them is as follows: “ He came out to me and he said, ‘ Donnelly, go over and draw me $500 out of the Columbia Bank.’ I said, ' I did not "sign any checks since the time I signed that security paper for you.’ He said, ' That is all right, the account is changed to your name.’ I said, ‘ Yo, it is not.’ ííe said, ‘ I changed it back again the next day, go right on and draw me $500.’ I went ov.er and made out a check to the order of M. Donnelly, and signed it ‘ M/Donnelly & Co.’ and got $500 in cash, in bills, went over to McArdle at the Grand Central Depot ■ * * * and gave it to him.” The respondent says concerning this, “ There was no such conversation at all.” After this, and for about, nine months, the respondent’s son and the appellant both drew checks on the firm account and then' the former returned to Albany and the appellant alone subsequently drew the checks. The appellant continued to manage and- conduct the business until the 18th .day of March, 1891, when respondent took exclusive charge and excluded him therefrom, and on that day published a notice to the. effect that the copartnership that had theretofore existed between him and the appellant was dissolved. The appellant testifies that the day before he was excluded from the business respondent was displeased with his refusal to purchase a quantity of steel, the purchase of- which was strenuously advised by respondent, and charged him with. having said that he was. going to pay respondent off the first of the month, and that respondent thereupon at first insisted upon his paying him off then or next morning, but later, instead,, took posséSsión as stated. The respondent denies appellant’s version of what took place at this time and testifies: “ I recall wdiat took place about the 17th of March when I terminated the relation that I had there with him. I told him I was sick of the business and I would wind it up, close it up at once. That was about the substance of it — that I was sick óf the business and I wanted to wind it up; I did not want to continue it any longer, as I was losing money right along and 1 could not afford it.”</p> <p>It appears without controversy that from the time the bill of sale was executed down to the 18th day . of March, 1891, respondent caused his Albany bookkeeper to forward accounts from time to time of the indebtedness of the firm of M. Donnelly & Go. to him, and the bookkeeper of the latter firpa made monthly statements to respondent of his account with it. On the 20th day of June, 1890, respondent wrote a letter to one of his customers in which he referred to appellant’s connection with the business as follows:</p> <p>“In regard to Mr. Donnelly and the Steel Tires I will state to you that since Mr. Donnelly started , in business in Yew York I have never sold a pound of stock for his account to anybody unless he was with me. Now I cannot sell you any stock that is in New York as I have never done a dollar’s worth of business either buying or selling for Hr. Donnelly as he is a very peculiar man, and if I began to do business for the New York House he would think that all the authority was taken out of his hands and would feel very bad about same. You know your brother Mr. Perkins would do no business from your house except from your orders. Now you very well know any time that either Mr. Donnelly or myself have any stock that you want to buy we are only too willing to sell it to you.”</p> <p>On the ninth of July, the same year, respondent wrote the same firm a letter in which he said: “ Your kind letter of the 7th inst. is received and I will state to you that I am very much surprised at its contents. That is, in the first place you sold me these beams at $18.75 with the proviso that I was to give you a lot of stock from M. Donnelly’s yard when you knew I could not do anything in regard to Mr. Donnelly’s business.”</p> <p>On the 6th day of January, 1891, respondent wrote M. Donnelly & Co. as follows: “ Your very kind letter of the 5th inst. is received, stating that I can draw on you at 30 days’ time. I am sorry that you could not help me out. If I* got into a tight hole you know I would help you out. What I expected to see this morning in the mail was a nice big check for about $5,000.00. I had to pay about $40,000.00 to one customer and I had to call on all my friends to help me. I expected you to be the first to respond. However some • of the others came to my rescue so it is all right. Hoping that this is satisfactory to you, I am,” etc.</p> <p>On the 3d of March, 1891, he also wrote M. Donnelly & Co. as follows: “ I am very much surprised at you Mr. Donnelly that you did "not wire me as I requested as I sent you a despatch so that you-would have no bother last night. You know the fix I have' been and am in here for money as I explained it to you thoroughly yesterday and showed you how the Central was pushing me. Now-kindly wire me on receipt of this letter if you have received any money. ’ If you have I hope you have sent it to me by mail to-night. If you did it is all O. K. and you need not wire me. Trusting that the above is satisfactory and that you will comply with my request, I am,” etc.</p> <p>The appellant also showed by the testimony of seven witnesses, all of whom appear to have been business men .and appear to have been disinterested, with the possible exception of one who was related to him,'that respondent at different times throughout the period between the execution of the bill of sale and the 18th day of March, 1891, stated to them that the appellant was his partner. These statements were made in many instances to customers and in all instances in connection'with the firm business. This testimony is controverted by respondent, but it is overwhelming and fairly establishes the fact.</p> <p>During the year 1889 the firm’s indebtedness to respondent was gradually decreased from $35,031.38, on the first of April, to $31,544.42 on the first of November, and on the date of the bill of sale the. firm books showed it to be $28,862.14. After that it decreased to $25,175.18 on the 1st of January, 1891, but was increased to $54,754.41 on the 1st of February, 1891, and on March 1, 1891, to $62,737.68. The respondent claims that the firm sustained losses of from $16,000 to $20,000 during the year 1889, and that when he took the bill of sale he intended to close up the business as rapidly as possible, but that it was necessary to wait for a favorable opportunity to avoid selling at a sacrifice; that it was more convenient to continue the business in the old firm name, and at his request appellant consented to that course, but it is not pretended that any certificate was filed as required by the Copartnership Law(Lawsof 1854, chap. 400, as amd. by Laws of 1888, chap. 142). It appears, however, that nothing was done towards closing out the business. Purchases were made and the stock was replenished from time to time as usual, and as appears above respondent himself contributed largely to the stock after the execution of the bill of sale and allowed the firm’s indebtedness to him to increase more than .two-fold. During the period after the execution of the bill of sale appellant overdrew his weekly allowance and disbursements the sum of $5,736, and this was charged up to his account on the firm books.</p> <p>The appellant claims that respondent frequently stated in substance that all he wanted out of the business was the amount owing to him and interest and that he would accept a check therefor at anytime. Respondent admits that his object in forming the firm was to enable appellant to make money, and that he would have been satisfied at any time with the amount owing to him and interest, but denies having so stated.</p>

Appeal by the relator, the Edison Electric Illuminating Company of Brooklyn, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of January, 1903, dismissing the writ of certiorari granted herein, which sought to review the action of the commissioners of taxes and assessments in assessing the valuation of real estate.

<p>Appeal by the United States Fidelity and Guaranty Company of Baltimore, Maryland, surety upon the official bond of Robert H. Slocum as general guardian of Mabel Fardette, an infant, from a decree of the Surrogate’s Court of Onondaga county, bearing date the 16th day of January, 1903, and entered in said Surrogate’s Court, upon a final accounting of .the proceedings of said general guardian, in and by which it was adjudged that said Slocum had in his hands, unexpended and unadministered, of money received by him as such general guardian, the sum of $1,970.42, and that said sum be paid by him to Frank Fardette, his successor as general guardian of said infant.</p>

Appeal by the plaintiff, The South Buffalo Railway Company, from a final order of - the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 16th day of June, 1902, as amended and resettled by an order entered in said clerk’s office on the 1st day of July, 1902, confirming an award made- by commissioners duly appointed in condemnation proceedings.

Motion by the defendant, The Traders’ Insurance Company .of Chicago, Illinois, for a new trial upon a ease, 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 Seneca'Trial Term.

Appeal by the defendant, Frank L. Myers, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered, in the office of the clerk of the county of Steuben on the 16th day-of October, 1902, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 22d day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes-The action was commenced on the 16th day of April,-1902, to recover for work,…

Appeal by the defendant, Wilbur F. Smallwood, from a judgment of the Supreme Court in favor óf the plaintiff, entéred in the-office of the clerk of the county of Erie on the 20th day of October, 1902, upon the verdict of a jury, and also from an order entered iit said clerk’s office on the 20th day of October, 1902, denying the said defendant’s motion for a new trial made upon a case containing exceptions.

<p>Motion by the defendant, The -¿Etna. Life Insurance Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance upon the verdiet of a jury rendered by direction of the court after a trial at the Monroe Trial Term.</p> <p>The action was commenced on the 29th day of March, 1902, to recover the amount of a twentieth century combination accident policy issued by the defendant to the plaintiff’s intestate. At the close of the plaintiff’s evidence the defendant made a motion for a nonsuit, which was denied and an exception was duly taken. The defendant then moved for the direction of a verdict in its favor, which was also denied and defendant excepted. The plaintiff then moved for the direction of a verdict in her favor, which was granted, and an exception to such direction was' taken by the defendant. The defendant then made a motion for a new trial, and the court directed that such motion be heard on a cáse containing exceptions at the Appellate Division in the first instance.</p>

<p>Insurance — answers made warranties — their falsity, whether material or not, avoids the policy — when the question as to the falsity of answers in regard to attendance by a physician should be submitted to the jury.</p> <p>Where the answers contained in the application for a policy of life insurance are, by the terms of the policy, made warranties, the falsity of such answers will avoid the policy independent of whether the answers were material to the risk or not.</p> <p>In an action upon such a policy, it appeared that in the application for the policy the insured stated that it was about two years since he had last been attended by a physician or had consulted one, and that the name of such, physician was Dr. G. C. Prichard. The evidence tended to show that, within a year prior to the issuing of the policy, the insured suffered from a slight indisposition and that, without his knowledge or consent, his wife called a physician named Dr. Burt to attend him. So far as appeared the insured did not hold any conversation with Dr. Burt as to his ailment or the proper course of treatment. The physician asked no questions of the insured, but made some suggestions as to the remedies which should be applied and the course of diet which should be followed. It did not appear whether the medicine prescribed was taken or whether the suggestions as to diet were followed.</p> <p>Held, that it could not be said, as a matter of law, that the insured answered falsely in reference to his having been attended by a physician, but that, at most, the question of the falsity of the answers was one of fact which should have been submitted to the jury.</p> <p>Williams, J., dissented.</p>

Appeal by the defendant, Frederica Studeman, from a judgment of the Supreme Court in favor of the' plaintiff, entered in the office of the clerk of the county of Chautauqua on the 2d day of October, 1902, upon the report of a referee awarding possession of a certain parcel of land to the plaintiff.

<p>Appeal by William Furniss and others from a decree of the Surrogate’s Court of the county of Seneca, entered in said Surrogate’s ■Court on the 28th day of September, 1902, settling the accounts oí John Furniss as one of the executors of Mary Ann Bostwick, ■deceased.</p>

Appeal by the defendant, The H. Remington & Son Pulp and Paper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 29tli day of January, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 27th day of January, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — expert testimony as to whether a trench should be braced or sheathed—• when an opinion on the precise question the jury is to pass on is allowable— a city is not obliged to establish rules respecting the work to be done in its water department.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff while engaged in digging a water trench for a municipality, in consequence of the caving in of the bank of such trench, it appeared that the sides of the trench were braced, and the negligence charged against the defendant was that the trench should have been sheathed rather than braced.</p> <p>Witnesses were called to explain and describe the difference between bracing the walls of a trench and sheathing them, and from the description thus given it was an easy matter for the jury to determine which of the two methods was the safer.</p> <p>Held, that it was error to permit an expert witness to testify that it would not be safe to work in the trench in question unless it was sheathed;</p> <p>'That an expert witness will be permitted to express an opinion upon the precise question which the jury is ultimately to determine only when, from the nature ■of the case, the facts cannot be stated or described to the jury in such a manner as to enable them to form an accurate judgment for themselves, and that the present case was not of this character;</p> <p>■ 'That it was also error to allow the superintendent of the" defendant’s water department to testify, over the defendant’s objection, that the water department had no rules or regulations governing its employees with reference to the sheathing or shoring of trenches, as it is no part of the duty of a municipality to formulate and enforce rules respecting the performance of labor upon its public works.</p> <p>Spring and Hiscook, JJ., dissented.</p>

<p>Appeal by the plaintiff, Frank E. Freeman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Onondaga on the 18th day of February, 1903, upon the report of a referee, and also from an order-entered in said clerk’s office on the 7th day of March, 1903, vacating; an injunction theretofore granted herein.</p> <p>The plaintiff and the defendant J. Irving Freeman were formerly-engaged as copartners in the retail clothing business at the city of" Syracuse, in this State, and carried on such business under the firm, name of Freeman & Freeman.</p> <p>On the 27th day of August, 1901, they, as individuals and also as. copartners, filed a petition in bankruptcy. Shortly thereafter they were duly adjudged bankrupts, and subsequently received their-discharge. In the course of the proceedings a trustee was duly-appointed, who took into his possession all the assets of every name: and description, not exempt by law, of the partnership as well as of the individual members thereof, and thereafter sold the same to one: George Shaffer at public sale. Notice of this sale was given in due-, form, in which notice it was stated that the property to be sold was. the *c assets of said bankrupts’ estate, and excepting only the debts-due on open accounts or other choses in action, * * * being the personal property of said bankrupts, consisting of the store fixtures and furniture used by them upon the premises lately occupied by said bankrupts as a store at No. 122 South Salina street, in said city of Syracuse, and the merchandise and stock in trade, consisting of ready-made clothing, cloth, hats and gentlemen’s furnishing goods.”</p> <p>Such notice further stated that “ All of said property will be sold subject to any and all incumbrances thereon, the intent being to dispose solely of whatever interest said bankrupts had in said property at the date of adjudication.”</p> <p>Upon the trial it was conceded that the defendants, as copartners, subsequently, by certain mesne transfers, succeeded to the ownership of all the property of the bankrupts which was sold by the trustee to Shaffer, and that upon obtaining the same they engaged in the retail and merchant tailoring business at the place formerly occupied by the firm of Freeman & Freeman, viz., No. 122 South Salina street, and that at the time this action was commenced they •were conducting their business under the firm name of “ J. Irving Freeman & Go.” ■</p> <p>The plaintiff alleges that in the conduct of such business the ■defendants advertised themselves in the newspapers as successors to Freeman & Freeman, and also used the old sign of that firm, with a ■smaller sign placed directly over the same on which appeared the words, “ J. Irving Freeman & Co., Successors. to,” so that the sign ■actually read : “ J. Irving Freeman & Co., Successors to Freeman & Freeman,” and it was to restrain them from such use of the old firm name that this action was brought.</p> <p>The defendants admitted the allegations above mentioned, but .asserted that they had the light to advertise themselves as successors to the old firm, and the issue thus joined was duly tried before a referee who decided in favor of the defendants, and it is from the judgment entered upon his report that this appeal is brought.</p>

Appeal by the defendant, The Hartford Fire 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 Lewis on the 9th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29tli day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Michael Kohles, from a judgment of 'the County Court of Onondaga county in favor of the plaintiff, ■entered in the office of the clerk of the county of Onondaga on the "Ttli day of February, 1903, affirming a judgment of the Municipal -Court of the city of Syracuse, entered on the 10th day of September, 1902, and also affirming an order of said Municipal Court, '■entered in the office of the clerk of said court on the 29th day of ;September, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Wharf on a navigable river—if constructed without authority from the State it eannotbe used by a steamboat company without the owners consent—if constructed under-letters patent reciting a grant for the purpose of promoting commerce the owner cannot give to one steamboat company an exclusive privilege to use it—remedy inequity —effect of the omission from letters patent of conditions contained in prior letters. </p> <p>Where the owners of property in the State of New York, abutting on the St.Lawrence river, construct docks extending into the bed of the river, the fact, that such docks were constructed' without the express authority, of the State-of New York does not entitle a steamboat company to land its steamboats at-such docks without the consent of the owners.</p> <p>Where, however, the abutting owners procured patents from the State of New York of the lands on which the docks were built, reciting that the letters were-granted “for the purpose of promoting the commerce of our said State and. for no other object or purpose whatsoever, and with the reservations arid upon the conditions hereinafter mentioned,” one of which conditions was that if the-grantees should not “within five years from the date hereof actually appropriate and apply the above described premises to the purposes of commerce by erecting a dock or docks thereon, and filling in the same,” then said presents, and everything therein contained should “ cease, determine and become void,” the abutting owners, by the acceptance of the letters patent, thereby dedicate-the docks and so much of the uplands as is necessary for that purpose to the-use of all people engaged in general public commerce on the river, subject to-proper regulations and the payment of a reasonable compensation.</p> <p>If the abutting owners assume to execute to a steamboat company a lease of the. exclusive privilege of using such docks, the court will not lend its aid to an attempt by the lessee to exclude another steamboat corporation from landing at the docks in question.</p> <p>The fact that letters patent, subsequently granted by the State of New York to. the abutting owners, contained no statement of the purposes or conditions for, and upon which, the prior letters were granted,, will not he construed as-intended to relieve the abutting owners from the obligations created by the-acceptance of the prior letters patent.</p>

<p>Blander—eha/rge that the plaintiff, a supervisot-, “ is short six thousand dollars-in his accounts and ought to be behind the bars”—a justification thereof, that for other acts the plaintiff “ ought to be behind the bars ” is bad— the charge must-be proved, and the justification cover it, in its entirety.-</p> <p>Where the plaintiff in an action of slander charges the utterance of a single,, entire slander, he must prove the same as charged; if the defendant desires to justify such an alleged slanderous utterance, he must make his justification, coextensive with and as broad as the charge.</p> <p>Where the alleged slander consists of separate divisible charges against the-plaintiff, the defendant may deny one or more of such charges, and admit and justify the others.</p> <p>The complaint in an action of slander brought by one Stock, a former supervisor of the town of Cheektowaga, charged that the defendant, “ intending to accuse this 'plaintiff of having been dishonest and corrupt in public office, to-wit, while supervisor of the town of Cheektowaga * * * spoke these words: ‘ Stock is short $6,000 in his accounts in Cheektowaga, and if be had his just dues he would be behind the bars; * * also that defendant said to plaintiff’s son, referring to said plaintiff, “ ‘ His dad is short six thousand dollars in his accounts and ought to be behind the bars.’ ”</p> <p>The defendant, by his answer, denied that he said of the plaintiff that he was. short in his accounts, but admitted that he said of and concerning him that he ought to be behind the bars, and then set up, in justification of the last statement, that the plaintiff, while supervisor, had been guilty of various wrongful and dishonest acts. None of such acts pleaded in justification related to or constituted any shortage in the plaintiff’s accounts.</p> <p>Meld, that the slanderous statement alleged in the complaint to have been uttered by the defendant did not consist of two distinct and separable charges against, the plaintiff, to wit, that he was short in his accounts and that he should be behind the bars, but constituted a single, entire and indivisible charge, to the effect that the plaintiff was short in his accounts, and, for that reason, should be behind the bars, which charge the plaintiff was obliged to prove, and the defendant .justify, in its entirety;</p> <p>That the defense of justification interposed by the defendant was demurrable, for the reason that it did not embrace the entire slanderous charge, but simply that portion thereof which stated that the plaintiff ought to be behind the bars.</p>

Appeal by the defendants, William B. Morse and others, composing the firm of William B. Morse & Sons, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office o£ the clerk of the county of Monroe on the 16th day of March, 1903, upon the decision of the court, rendered after a trial at the Monroe Special Term, decreeing a sale in foreclosure of the property •described in the complaint, and adjudging the lien of plaintiff’s, respondent’s, mortgage…

Appeal by the defendant, Henry 0. Albee, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 21st day of October, 1902, upon the decision of the court, rendered after a trial at the Monroe Special Term, directing a reformation of the written assignment •described in the complaint.

<p>Negligence -— assumption by an employee of the risk involved in a rule that within the yard limits a flagman need not be sent bade to protect the train from rear end collisions.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the intestate was a freight conductor in the employ of the defendant railroad company, and that before daylight on the morning of March 6, 1900, he stopped his train, which was traveling east on track No. 4, on a curve within the defendant’s yards at West Albany; that while the train was stationary and the intestate was sitting in the caboose thereof, a freight train following on the same track crashed into the caboose and killed the intestate.</p> <p>The defendant had a rule which imposed upon those in charge of a train running within the yard limits of West Albany the duty to be on guard for a train ahead, instead of requiring each train crew to protect its train in the rear by sending back a flagman. The negligence charged against the defendant was that this rule was ineffective and improper, and the evidence was sufficient to warrant a finding that this was the case.</p> <p>It appeared, however, that the rule in question had been in force for many years and that no injury had resulted therefrom; that the intestate had been in the railroad business for twenty-six years, during eight of which he had been employed on the division on which the accident occurred; that he was entirely familiar with the rule in question, and had repeatedly told his flagman that it was unnecessary to flag inside the West Albany yard limits for approaching trains.</p> <p>Held, that the complaint was properly dismissed;</p> <p>That the intestate must be deemed to have been cognizant of, and to have assumed the risks incident to, the operation of the rule in question;</p> <p>That if an employee, with entire appreciation of a given dangerous situation, chooses to continue in the employment, he cuts off any recovery for injuries suffered because of that particular situation, whether or not the employer has been remiss in his duty.</p>

<p>Appeal by the defendant, The Freemans National Bank, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Herkimer on the 8th day of September, 1902, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order made at the Oneida Special Term and entered in the office of the clerk of the county of Herkimer on the 8th day of September, 1902, granting plaintiffs an additional allowance. ’</p>

<p>Appeal by the plaintiff, Charles O. Weston, from a judgment of the Supreme Court in favor of the defendant, entered in' the office of the clerk of the county of Monroe on the 16th day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of May, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, William H. Parkinson, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 24th day of December, 1902, striking out certain portions of the defendant’s answer as irrelevant and redundant.

<p>Appeal by the defendant, Charles S. Codington, as trustee in bankruptcy of the estate of William J. Barron, bankrupt, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 1st day of April, 1903, upon the decision of the court, rendered after a trial at the Wayne Special Term, overruling the said defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by the plaintiffs, Sarah J. Turner and another, as the committee of the person and estate of Warren Mather, an incompetent person, from a judgment of the Supreme Court in favor of the •defendants,, entered in the office of the clerk of the county of Oneida on the 10th day of September, 1902,. dismissing the complaint upon, the merits.

Appeal by Herbert W. Weld and others, persons interested in the estate of William W. Whitmore, deceased, from a decree of the Surrogate’s Court of the county of Niagara, entered in said Surrogate’s Court on the 21st day of March, 1903, judicially settling the accounts of John A. Merritt, as executor of William W. Whit-more, deceased, and directing a disposition of the estate.

Appeal by the defendant, The New York, Chicago and St. Louis 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 Erie on the 13th day of June, 1902, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant. The Supreme Tent of the Knights of the Maccabees of the World, from an order of the Supreme Court, made at the Seneca Special Term and entered in the office of the clerk of the county of Seneca on the 6th day of February, 1903, as amended by an order made at the Steuben Special Term and entered in the office of the clerk of the county of Seneca on the 23d day of February, 1903, granting plaintiffs’ motion for a new trial, a verdict having been…

<p>¡Contract for “not less than 5’000 and no more than 8,000 cubic .yards of stone * * * to include all such stone as may be required" for a bridge — what quantity the vendor is entitled to furnish—provision as to notice of the amount required.</p> <p>The J. L. Fulton Company, which had a contract for the performance of certain stone work, made á contract with David Ready, a quarry owner, providing, “Mr. Ready agrees to furnish and the J. L. Fulton Company agrees to buy not less than 5,000 and no more than 8,000 cubic yards of stone from Ready’s quarries at Oil City, at a price of §8.40 per cubic yard, f. o. b. cars Buffalo W. . FT. Y. & P. R. R. delivery; and the stone to include all such stone as may -be required for face stone, bridge seats, coping and backing. If more than 5,000 yards are required three weeks' notice is to be given for the extra amount.” Held, that Beady had a right to deliver, and to require the Fulton Company to accept, 8,000 cubic yards of stone, if that quantity was necessary for the performance of the work;</p> <p>That the notice, required by the contract to be given in case more than 5,000 cubic yards of stone were needed, was intended for the protection of Beady and to enable Beady to know how long he must provide for a continuous supply of stone.</p>

Appeal by The City of Rochester from so much of a decree of the Surrogate’s. Court of Monroe county, entered in said Surrogate’s Court on the 8th day of April, 1903, judicially settling the* accounts of the respondent, and directing a distribution of the estate» as disallows a claim made by The City of Rochester for taxes.

Appeal by the defendant, The Village of Salamanca, E. Y., from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Cattaraugus on the 21st day of March, 1903, appointing commissioners to ascertain the damages sustained by the respondent by reason of the change of grade of Main street in the village of Salamanca, E. Y-

Appeal by the plaintiff, Andrew J. Lawson, from a judgment' of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Chautauqua on the 29th day of January, 1903, upon the report of a referee, dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 29th day of January, 1903, granting deféndants an extra allowance of costs.

<p> Negligence—what neglect of a city to keep a sidewalk free from, ice requires the submission of a case to the jury. </p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of falling upon an icy sidewalk in the defendant city on March 22, 1901, it appeared that the sidewalk, which was ten and a half feet wide, was constructed of planks running at a grade of one inch to the foot from the street line to the curb line; that it was icy, slanting, uneven, with Filis or hummocks of ice two or more inches high, upon one of which the plaintiff fell, and that such icy condition had existed practically all winter; that most of the ice had accumulated more than ten days before the accident. There was evidence that some snow had fallen upon the sidewalk the night before the accident, but the plaintiff testified that the amount thereof was slight.</p> <p>The court directed a verdict for the defendant, apparently upon the ground that there was no proof that the defendant had been negligent.</p> <p>Meld,, that this disposition of tíre case was erroneous and that a new trial should be granted.</p>

Appeal by the defendant, George A. Kapell, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 20th day of April, 1903, as adjudges that the premises described in the complaint be sold free and clear of the lien of the Monroe county tax for the year 1901, and free and clear of the lien on said premises acquired by the appellant by purchase of the same at a sale thereof made by the…

<p>Mutual benefit life insurance — what is sufficient to effect a change of beneficia/ry.</p> <p>The by-laws of a mutual benefit life insurance association provided, “ A mem- ■ ber may at any time change, alter or amend the designation of person or persons, to whom the benefits named in his Certificate are payable, by surrendering said Certificate after having filled or caused to be filled the blank which shall be provided for that purpose, on the back of the same, providing for new designation, and attaching his signature to it. The Secretary of his branch shall attach his signature as witness, and the seal of his branch, and forward it to the Grand Secretary, if in his immediate jurisdiction. Upon the receipt of the same, by the Supreme /Recorder, he shall issue a new Certificate in accordance with such change of designation.” ■</p> <p>A member of the association, with intent to change his béneficiary, procured the blank on the back of the certificate to be filled in and attached his signature thereto. He then procured the certificate and indorsement to be delivered to the president of the local branch to which he belonged. The president and secretary of the branch then went to the branch lodge room, and the secretary, although he did not see the member sign the instrument, signed his name as a witness and affixed the seal of the branch to it. He then delivered the certificate to the president of the local branch, who, in turn, delivered it to one of the grand trustees of the association. The latter mailed the certificate and indorsement to the supreme recorder of the association, by whom they were received the next morning, and he at once issued a new certificate, naming the new beneficiaries therein. After the instrument had been mailed, and before ib had been received by the supreme recorder, the member died.</p> <p>The grand secretary, to whom the by-laws directed each change of beneficiary to be forwarded, had no duty to perform with reference to the change of beneficiary, except to pass it over to the supreme recorder, who was the officer of the controlling body of the association. In the usual course of business of the association applications for a change of beneficiary were received, not only from the grand secretary, but from other sources, even directly from the insured.</p> <p>Meld, that a change of beneficiary had been properly effected.</p>

Appeal by the defendants, Polly Ellis Oole and another, from a judgment-of the. Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Yates on the 18th day of June, Í902, upon the decision of the court rendered after a trial at the Yates Trial Term, a jury having been waived.

<p>Pa/rHtion — the action is not pending against a defendant named therein until the summons is served on him — an action for partition may be brought by one who is a party defendant, but not as yet served,'inanother partition suit, in which certain ■ of the defendants have been already served — the action is not barred by such other suit, although the plaintiff in the action had knowledge thereof.</p> <p>Jessie B. Crawford brought an action to partition .certain premises, and, on October 21 and 22, 1901, served the summons therein upon all Of the defendants but Charles C. Hart. October twenty-third the summons served on one of the defendants was sent to Frances Hart, who was a daughter of Charles C. Hart. Frances Hart thereupon consulted an attorney, and thereafter, on the same day, Charles C. Hart, with knowledge of the contents Of the summons, executed to the said Frances Hart a conveyance of his interest in the premises. On October twenty-fifth Frances Hart, through the attorney before mentioned, filed a summons and complaint and Us pendens in an action to partition the premises and recorded the Us pendens. She also served .some of the defendants on that day. On October twenty-sixth Jessie B.' Crawford served the summons in the action brought by her upon Charles C. Hart. October twenty-eighth Jessie B. Crawford filed her complaint and Us pendens and recorded the latter instrument. November second Frances Hart completed, the service of the summons and complaint in the action brought by her. November ninth an ex parte order was made in the action brought by Jessie B. Crawford, bringing in Frances Hart and other persons as parties defendant, and permitting the filing of an amended complaint and lis pendens and the service of a supplemental summons. November thirteenth a summons, issued in the action brought by Jessie B. Crawford, was served on Frances Hart.</p> <p>Held, that Frances Hart was entitled to maintain the action brought by her;</p> <p>That the action brought by Jessie B. Crawford was not pending against the said Frances Hart or against Charles C. Hart until they, respectively, had been served with process;</p> <p>'That the knowledge possessed by Charles C. Hart at the time he conveyed his interest in the premises in question to Frances Hart, of - the summons in the • action brought by. Jessie B. Crawford, did not constitutes legal impediment to the conveyance. '</p>

<p>Legacies charged on real estate — knowledge of the testator that his personal property would he insufficient to pay them.</p> <p>A testator, by his will, gave to his wife a life estate in his dwelling house, and in the event of the death or remarriage of his wife a life estate in such property to his adopted daughter. The will directed the testator’s executors to pay the taxes, assessments and repairs on the dwelling house as long ás it should be occupied by his -wife or adopted daughter. By another provision of the will the testator bequeathed §5,000 to his adopted daughter to be paid to her as soon after his death as possible.</p> <p>The only personal estate of any appreciable amount which the testator had at the timé of the execution of the will was represented by several savings bank accounts which- he had opened in his own name in trust for his wife, his adopted daughter and his sisters. . At the testator’s death, the beneficiaries of the several savings bank accounts appropriated the money to their own use without objection upon the part of the executors and apparently in accordance with the testator’s intentions. ‘ The testator knew, at the time of executing the will, that, without the savings bank accounts, his personal property was-insufficient to pay the taxes, assessments and repairs on the dwelling house and the legacy Of $5,000 to his adopted daughter.</p> <p>Held, that the payment of such taxes, assessments and repairs and of the legacy of §5,000 constituted a specific charge upon the testator’s real estate.</p>

<p>Appeal by the plaintiff, Peter Norman, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 3d day of April, 1903, setting aside a verdict in favor of the plaintiff on the ground that there was no evidence given showing the plaintiff’s freedom from contributory negligence. The action was brought to recover for injuries received by the plaintiff through the displacement of bricks in a vertical recess in a wall into which the plaintiff and others were engaged in placing an iron column, which, being longer than the recess, struck some loose brick in the wall above it, causing it to fall on the plaintiff.</p>

<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 the 24th day of November, 1902, upon the verdict of a jury for $3,000j and also from an order entered in said clerk’s office on the 5th day of December, 1902, denying the defendant’s motion for a net? trial made upon the minutes.</p>

Cross-appeals by The New York Life Insurance and Trust Company, as executor, etc., of Charles Saxer, deceased, and by William.

Appeal by the defendant, R. Dickinson Jewett, from a judgment of the Supreme Court in favor of plaintiff, entered in the office of the clerk of the county of Rockland on the 14th day of June, 1902, upon the decision of the court, rendered after a trial at the Rockland Trial Term, a jury having been waived.

Appeal by the plaintiff, Mary L. Weeks, 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 Queens on the 22d day of January, 1903, denying the plaintiff’s motion to continue an injunction during the pendency of the action and dissolving a temporary injunction.

. Appeal by the plaintiff, Hary Frances Welch, from a judgment of the Supreme Court in favor of the defendant Hiles. H. O’Brien, as trustee in bankruptcy of Grahams Polley, entered in the office of the clerk of the county of Kings on the 19 th day «of March, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiffs complaint upon the merits as to the said defendant trustee.

: -Appeal by the defendant, “Anna” McClennen, from a judgment of the Municipal Court of the city of ¡New York, borough of Brooklyn, in favor of the plaintiff, entered on the 9th day of June, 1902, upon the verdict of a .jury, for fifty-eight .dollars and .twenty-five cents.

Appeal by the plaintiff, Philo P. Hotchkiss, from a. judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 10th day of February, 1903,

Appeal by the defendant, The American Machine and Foundry Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, entered on the 7th day of January, 1903.

<p>Memoval of a deputy tax commissioner in the depm'tment of - taxes and assessments of the city of New York—he is not a “ deputy ” within the meaning of section 21 of the Oivil Service Law, and cannot he summarily removed.</p> <p>A deputy tax commissioner in the department of taxes and assessments of the city of New York is not excluded from the protection given to a veteran fireman by section 21 of the Civil Service Law (Laws of 1899, chap. 370, as amd. hy chap. 270 of the Laws of 1902), which prohibits his removal “ except for incompetency or misconduct shown after a hearing,” by that clause of such section which provides that nothing therein contained “shall be construed to apply to the position of private secretary, cashier or deputy of any official or department.”</p> <p>The deputies intended- to be excluded from the protection of section 21 of the Civil Service -Law, as thus amended, are only such as occupy a confidential relation to the head of the" department.</p> <p>Goodrich, P. J., dissented.</p>

Certiorari issued out of the Supreme Court and attested on the 27th day of August, 1902, directed to Josiah T. Marean, one of the justices of the Supreme Court of the State of New York, requiring him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in adjudging the relator guilty of a criminal contempt of court, committed in the presence of the court,' and imposing upon him a fine of fifty dollars.

Appeal by the plaintiff, Sam Saffier, from á judgment, of the Municipal Court of the city of New York, borough of Brooklyn,, in favor of the defendant, entered on the 1st day of. April, .1903, dismissing the plaintiff’s complaint.

<p>Appeal by John W. Kimball, treasurer of the county of Bangs, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of Hovember, 1900, as reverses certain portions of a decree theretofore entered in said Surrogate’s Court, assessing and fixing the transfer tax upon the estate of Elizabeth L. Howe, deceased.</p>

Appeal by the plaintiff, James Haughian, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 18th day of November, 1902, upon the verdict of a jury, rendered by direction of the court, after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 18th day of November, 1902, denying the plaintiff’s motion for a new trial made upon the minutes,

<p>Appeal by the defendant, the Westchester Electric 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 Westchester on the 20th day of October, 1902,' upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 28th day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Brooklyn Wharf and Warehouse 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 19th day of June, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 19th day of June, 1902, denying the defendant’s motion for a new1' trial made upon the minutes.

<p> Attorney’s compensation— the result of his services is important. </p> <p>The result of a lawyer’s services is a very important element in determining their value, and one which should be taken into account on an application to fix his compensation.</p>

Appeal by the defendants, Mary Eliza Hyde and others, as executors and trustees of the last will and testament of John B. Snook, deceased, 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 Kings on the 7th day of February, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, construing the will of John B. Snook, deceased, and directing his executors to pay…

Certiorari issued out of the Supreme Court and attested on the 13th day of. August; 1902, directed to John N. Partridge, as police commissioner of the city of New York, and another, requiring them to certify and return to the office of the clerk of the county of Kings all and singular their proceedings had in dismissing the relator from the office of captain of police in the city of New York.

<p>Appeal by the plaintiff, Susan Westervelt, as administratrix, etc., of James Westervelt, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the Ytli day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term after a verdict rendered in favor of the plaintiff for $5,000, with notice of an intention to bring up for review an order entered in said clerk’s office on the 7th day of March, 1903, setting aside the verdict in favor of the plaintiff and dismissing the complaint.</p>

Appeal by the defendant, Louis Marcus, 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 16th day of April, 1903, denying the defendant’s motion to restore this case to the calendar for the purpose of determining his right to taxable -costs in the action.

<p>Fire insurance policy — an oral agreement contemporaneous with a written agree1 merit of appraisal is incompetent—the appraisers fix the loss not the liability — .notice of the appraisers? meeting is not essential—■ a loss paid under a mortgagee, clause to the mortgagee must be- tendered before suit by the owner — incompetent evidence disregarded on a motion to direct a verdict. '</p> <p>Where, after a loss under a policy of fire insurance, the insured and the insurance-company enter into a written agreement for an appraisal of the loss, evidence, that it w;as orally agreed between the parties, contemporaneously with the’ execution of the written agreement, that the only question to be submitted' to" the appraisers was whether .the loss should be fixed at §3,003 or §7,000 .is'' incompetent, in the absence of proof that the written agreement was' obtained! by fraud or mistake..</p> <p>Where the appraisers fix the loss at less than the full amount of the policy, and such amount has been paid over to a mortgagee of the insured property ■ as provided by a mortgagee clause contained in the policy, the owners of the' insured property, cannot, without returning or offering to return the amount paid over to the mortgagee, maintain an action against the insurance company to recover the full amount of the policy, because of the alleged oral agreement limiting the power of the appraisers, even if such oral agreement be effective.</p> <p>The provision in the standard policy of fire-insurance, that,, in the event of a dis- ' agreement, the amount of the loss shall be determined by. appraisers,-' cohtemplates that tile determination of the appraisers shall fix, not the liabilities of the parties under the law, but the value of the property destroyed..</p> <p>This provision does not oust the court of any part of its jurisdiction,, and, in. the absence of bad faith, the mere fact that the parties arc not given notice of the •meetings of the appraisers does not affect the validity of their proceedings. Upon a motion to direct a verdict the court may disregard'incompetent evidence ■ admitted upon the trial. - ■</p>

<p>Appeal by the defendant, the Scottish Union and National Insurance Company of Edinburgh, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 1st day of October, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of October, 1901, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Scottish Union and National Insurance Company of Edinburgh, 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 Nassau on the 26th day of November, 1902, denying the defendant’s motion for a new trial upon the ground of newly-discovered evidence.

<p>Mre insurance — a defense of fraud, must be pleaded.</p> <p>In an action to recover upon a policy of Are insurance, containing a clause that fraud and false swearing on the part of the insured shall vitiate the policy, evidence of such fraud and false swearing, is not admissible under a general denial.</p> <p>Defenses which assume or admit the original cause of action alleged, and are based upon subsequent facts or transactions which go to qualify or defeat such cause of action, must be pleaded and proved by the defendant.</p>

Appeal by the plaintiff, ¡Nicholas V. Cody, from a judgment of the Supreme Court in favor of the defendknt, Mary E.. Dempsey, entered in the office of the clerk of the county of Queens on the 13th day of December, 1902, upon the dismissal of the complaint hy direction of the court after a trial at the Queens County Trial Term. !

■ Appeal hy the defendant, Isabel H. Gerry, from a judgment of the Supreme Court in favor of the respondents, entered in the office •of the clerk of the county of Westchester on the 4th day - of Oetoher,. 1902, upon the report of a referee in an action to foreclose a mechanic’s lien.

<p>Appeal by the defendant, Kenneth E. Crouse, from a judgment -of the County Court of Kings county, entered in the office of the -clerk of the county of Kings on the 3"lst day of March, 1903, upon the decision of the court affirming an order of a city magistrate adjudging the defendant to be a disorderly person.</p>

Appeal by the plaintiff, Frank M. Wright, from a judgment of the County Court of Westchester county in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 16th day of June, 1902, upon the dismissal of the complaint .by •direction of the court after a trial at the Westchester Trial Term.

Appeal by Amelia M. Valentine from an order of the Surrogate’s Gourt of Kings county, entered in said Surrogate’s Court on the 7th day of April, 1903, denying the appellant’s motion to dismiss the proceeding.

Appeal by the petitioner, Patrick J. McCormack, from an order of the Supreme Court, made at the Westchester Special’ Term and entered in the office of the clerk of the county of Westchester on the 24th day of October, 1902, denying his motion to compel the board of registration of the first election district of the seventh ward of the city of Yonkers to place his name upon the registration list.

Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of West-Chester on the 19th day of December, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 3d day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the relator, Jacob Seib, 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 20tli day of April, 1903, denying his application for a writ of mandamus for reinstatement as an employee in the department of highways in the borough of Brooklyn.

Appeal by the defendants, Louis Gordon 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 Richmond on the 20th day of March, 1902, upon the verdict of a jury, and also from an order -entered in said clerk’s office on the 27th day of March, 1902, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, J. W. O’Bannon Company, 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 2-2d day of May, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Abram Roseman, from a judgment of the City Court of Yonkers in favor of the defendant, entered in the office of the clerk of said court on the 19th day of September,. 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 23d day of September, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 12th day of June, 1902, upon the verdict of a jury for $300, and also- from an order entered in said cleric’s office on the 7th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Mary E.. Burdick, 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 20th day of March, 1902, upon the decision of the court rendered after a trial at the Kings 'County Special Term.</p>

<p>Action for admeasurement of dower in land conveyed by the husband {since deceased) of the plaintiff by a deed, in which she did not join — a counterclaim for damages for the amount of such dower interest cannot be interposed although the plaintiff was the sole devisee and legatee of her husband’s will—a judgment sustaining a demurrer to a portion of an answer should be interlocutory—it should, not authorize the collection of costs.</p> <p>In an action for the admeasurement of dower in real estate, of which the plaintiff claimed that her deceased husband was seized during coverture, and which he had conveyed by a deed, in which she did hot join, the defendants interposed an answer alleging, as a counterclaim, that the plaintiff’s husband had. devised and bequeathed to her all his property, both real and personal; that he was • solvent and responsible; that the 'property so devised and bequeathed was greater in value than the amount of the plaintiff’s claim for dower; that the plaintiff, as beneficiary under the will, was indebted to the defendants in the amount (if any) which would be recoverable in this action for admeasurement of dower, and that the benefits received by her under the will should be set off against the plaintiff’s claim.</p> <p>Held, that the counterclaim was demurrable;</p> <p>That the defendants’ claim did not arise put of the plaintiff’s claim and was not connected in a legal sense with the subject-matter of the plaintiff’s action, and that, therefore, the matter set forth in the answer did not constitute a counterclaim within the definition contained in section 501 of the Code of Civil Procedure. .</p> <p>A judgment sustaining a demurrer to a counterclaim interposed in an answer containing other issues should be interlocutory, and should not permit the collection of the costs until judgment is rendered on the other issues.</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 the 18th day of December, 1902, upon the verdict of a jury for $235, and also, from an order entered in said clerk’s office on the 12th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by. the defendants, John Quinn and the Emigrant Industrial Savings Bank, from ah 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 4th day of August, 1902, as resettled and amended by an order entered in said clerk’s Office on the 9th day of August, 1902, and also from an order entered in said clerk’s office on the 13th day of August, 1902, vacating and setting aside a judgment in…

• Appeal by the plaintiff, Ann Glennon, as administratrix, etc., of Richard Glennon, deceased, from a judgment of the Supreme Court in favor, of the defendant, entered in the office of the clerk of the county of Orange on the 22d day of January, 1902, upon an ordei ¿entered in said clerk’s office on the 13th day of January, 1902, dismissing the complaint and setting aside a verdict in favor of the plaintiff, and also from an order entered in said clerk’s office on the 14th…

Appeal by the defendants, Gabriel Davis and others, from so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 23d day of December, 1902, upon the decision of the court, rendered after a trial at the Nassau Special Term, as determines that under the will of Bannatt Salky, deceased, the plaintiff took an absolute undivided one-sixth interest in fee in said testator’s real and personal estate,…

Appeal by the plaintiff, Cornelia Seymour, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 17th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term, and also from an order entered in said clerk’s office on the 27th day of January, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Cross-appeals by the plaintiff,'"William E. Thorn, as sole surviving executor and trustee of and under the last will and testament of William T. Garner, deceased, and by the defendants, Marcellite Thorn (Garner) de Breteuil and others, from portions of a judgment of the Supreme Court, entered in the office of the clerk of the county of Dutchess on the 23d day of July, 1902, upon the report of a referee, with notice of an intention to bring up for review upon, such appeal an order of the Supreme Court, made at the Suffolk Special Term and entered in the office of the clerk of the county of Dutchess on the 23d day of July, 1902, whereby said judgment was adopted and made the judgment of the Supreme Court, and to bring up for review portions of the orders for judgment made by said referee and entered in said clerk’s office respectively on the 27th day of May, 1902, and the 23d day of July, 1902.</p>

Appeal by the defendant, Harold Watson, 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 4th day of Hay, 1903, denying said defendant’s motion to strike out certain matter from the plaintiff’s complaint.

<p>Appeal by the defendants, The Aquehonga Land Company of Staten Island, New York, and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 4th day of June, 1902, upon the decision of the court, rendered after a trial at the Richmond Special Term, directing a foreclosure and sale under a mechanic’s lien.</p>

Motion by the defendants, Samuel W. Ehrich and another, for a reargument, and for a resettlement of an order of the Appellate Division, made at the March Term, 1903, reversing a judgment in favor of the plaintiff, and granting a new trial.

Appeal by the plaintiff, Lizzie Buoff, as administratrix, etc'., of Lena Dinselbacher, also known as Lena Makel, deceased, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 27th day of April, 1903, in favor of the defendant, dismissing the plaintiff’s complaint.

<p>Conversion — ihe withdra/wdl from a bank of money of a corporation deposited by its treasurer to Ms credit as treasurer contrary to its by-laws.</p> <p>Id an action in which the issue litigated was whether the defendant, as the treasurer of the plaintiff corporation, had converted the proceeds of a check • received by the defendant from, a debtor of the corporation, it appeared that the defendant deposited the proceeds of the check in the bank to the credit of "Robert F. Mullins, Treas.that he made withdrawals from the deposit by checks thus signed and applied the money to various purposes. The defendant contended that such purposes were legitimate, while the plaintiff denied it. Held, that the refusal of the court to allow the plaintiff corporation to prove that one of its by-laws provided that checks should be drawn only when signed by the president and countersigned by the treasurer constituted prejudicial error, as, if the defendant deposited the money and thereafter drew it out contrary to the rules formulated by his principal, such act would tend to prove a conversion.</p>

<p>Evidence—a letter written in answer to one addressed to the writer is competent although the whole correspondence is not offered—effect of a statement therein adverse to the claim of the pan'ty offering it — the other party ma/y put in evidence the rest of the correspondence —foreign stock corporations doing business in the State of New York without a certificate — right of, after obtaining a certificate, to enforce a contract made bffore doing so — the acts on this subject are not retroactive, or, if so, are unconstitutional.</p> <p>In an action on a contract the plaintiff s attorney testified that he wrote a letter to the defendant at the address stated in the contract and that he received, through the mail, a letter signed by the defendant, which read as follows: “ Received your letter 18th inst and would have paid for the books, but my ad was not in as I order it.”</p> <p>Held, that the plaintiff was entitled to introduce the letter in evidence as an admission by the defendant, and that it was not bound to read in evidence the entire correspondence;</p> <p>That the defendant, however, could have introduced any correspondence bearing, upon the subject-matter of the letter;</p> <p>That the fact that the letter denied that the plaintiff had fulfilled its contract did not defeat the plaintiff’s cáse;</p> <p>That, while the admission contained in the letter must be taken in its entirety, the plaintiff was not bound by the defendant’s statement of his reason for failing to make payment; .</p> <p>"Under section 15 of the General Corporation Law (Laws of 1892, chap. 687), which, as it existed prior to the amendment made by chapter 538 of the Laws of 1901, provided/ “No foreign stock corporation doing business in this State without such certificate (viz., the certificate of authority to do business) shall . maintain any action in this state upon any contract made by it in this state until it shall have procured such certificate,” a foreign stock corporation, upon obtaining the necessary-certificate, could enforce a contract made in the course of business transacted by it in the State-of New York after the passage of the law and before procuring such certificate.</p> <p>If the section, as amended in. 1901, which.provides, “No foreign stock corporation doing business in this State shall maintain any action in this state upon ^ any contract made by it in this State unless prior to the making of such contract it shall have procured such certificate,” was intended to be retroactive, it is, to that extent, Unconstitutional.</p> <p>The-further provision of the amended section, that “No such corporation now doing business in this State shall do business herein after December 31, 1892,” indicates that it is limited to corporations doing business at the time of the passage of the act in 1892, and refers to contracts then existing.</p>

Appeal by the defendant, Harold E. Spencer, administrator with the will annexed of the estate of L. R. Bacon, deceased, from an order of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court on the 16th day of May, 1903, directing said defendant to deliver to the respondent herein certain property in his possession.

<p>Transfer tax—annuity to am. executor and trustee together with his commissions,— when, in the case of a life estate, the estate in remainder is presently taxable.</p> <p>A testator, by his will, provided: “ I further direct that my executor and trustee John F. Clarke be paid from my estate the sum of fifteen hundred dollars annually, together with the commissions allowed by law, as long as he shall act as such executor and trustee, the same to be received by him in full compensation for any and all services, legal or otherwise, which he shall render my estate.”</p> <p>Held, that the annuity so bequeathed was subject to a transfer tax under the provisions of section 237 of the Tax Law (Laws of 1896, chap. 908).</p> <p>The testator devised his residuary estate in trust for the benefit of his wife and daughter-during their lifetimes with remainder to his next of kin and heirs at law or to the lawf ul issue of the daughter.</p> <p>Held, that the transfer tax to which the'estate in remaindfer was subject was presently payable. • '</p> <p>Otto Huber, Sr., by his Will, gave to his wife a life interest in his entire estate, and, upon the decease of. his said wife, he gave such estate to his children in equal shares. The said Otto Huber, Sr., was survived by his wife and seven children, one of whom was Otto Huber, Jr. The greater portion of the" estate of Otto Huber, Sr., consisted of brewery property, and in Ms will he provided for the creation of a corporation to which the property should be transferred. Otto Huber, Jr., was the president of such corporation for some years and up to the time of his death. The said Otto Huber, Jr., left a will, by which he transferred his interest in his father’s estate, together with his other property, to his executors upon certain trusts.</p> <p>Held, that the transfer tax, to which that part of the property passing under the will of Otto Huber, Jr., which came to him from Otto Huber, Sr., was subject, was presently taxable at the death of the said Otto Huber, Jr.</p>

Appeal by the plaintiff, Leavitt J. Hunt, as trustee in bankruptcy of the estate of Robert A. Osborn, bankrupt, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of November, 1902, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 5th day of November, 1902, confirming the said referee’s report.

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

<p>New trial—a plaintiff who obtains a verdict cannot object to a condition, on complidncé with which by him the verdict is allowed to stand — the costs should be paid by the defendant where a new trial is granted becamse of error in the amount of the verdict. ...</p> <p>The defendant in an action of conversion offered to allow judgment to be taken against him for the sum of $100, which offer was declined by the plaintiff. The action was tried before a jury, which found a verdict in favor of the plaintiff for $400. There was evidence to support the verdict up to the amount of $75, and also some testimony from which an inference might be drawn in support of a larger amount.</p> <p>The trial judge made an order setting aside the verdict of the jury and granting a new trial, unless the plaintiff would stipulate to reduce the recovery to $75. He also imposed the costs of the trial upon the plaintiff.</p> <p>Held, that the trial judge would have been justified, under section 999 of the Code of Civil Procedure, in granting a new trial unconditionally, and that the direction that the verdict might stand if the plaintiff would elect to reduce the amount thereof was a favor granted to the plaintiff, of which the latter was not entitled to complain;</p> <p>That the error which justified the granting of a new trial having been committed by the jury, the costs.of the trial should have been imposed on the defendant as a condition of making the order granting the new trial.</p>

<p>Surety—agreement that the principal would pay all persons supplying “labor and materials in the prosecution of the work ” — it does not cover the services of a steam lighter used on the work in question and two other works.</p> <p>Joseph J. Churchyard had three separate contracts with the United States government for the erection of certain buildings, one of which was a marine barracks at Coaster’s Harbor island. The contract for the construction of the latter building provided that Churchyard would “provide, furnish and deliver, at his own risk and expense, at Coaster’s Harbor Island, Rhode Island, all the necessary materials, labor, tools and appliances for the construction and completion, in all respects, of a barracks.”</p> <p>As security for the performance of this contract, Churchyard gave a bond subject to the provisions of an act of Congress passed August 13, 1894, which provides that the sureties shall assume an obligation “that such contractor or contractors shall promptly make payments to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract.”</p> <p>The bond was conditioned that Churchyard should “ promptly make payments ' to all persons supplying him or them labor and materials in the prosecution of the work provided for in the aforesaid contract.”</p> <p>Churchyard chartered a steam lighter with a crew of six men and the necessary-supplies to transport lumber and materials used in the performance of the three government contracts.</p> <p>Held, that the surety upon Churchyard’s bond was not liable for any sum due from Churchyard for the use of the steam lighter, even to the extent that such lighter was used in delivering materials to be used in the performance of the particular contract, to secure the performance of which the bond was given.</p>

<p>_Reference “ to take proof and report the same to the court” — supersededby.a reference “ to hear and determine ” in an action subsequently brought in which by stipulation the issues under the first order of reference are tried.</p> <p>In order to discharge a notice of Us pendens, filed in 1887 in an action for partition, the attorney of record for the plaintiff in such action, claiming a lien for his compensation, in 1903 entered into an agreement with the parties interested in the action whereby it was agreed that the action should be discontinued, and that the attorney’s lien for compensation for the services rendered in the partition' action should be transferred to a fund to be deposited with a trust company.</p> <p>The order of discontinuance provided that if the parties should fail to agree upon the amount of the attorney’s compensation within twenty days after the entry of the order “ it be and hereby is referred to Augustus C. Brown, counselor at law, who is hereby appointed sole referee' to take proof and report the same to the court with his opinion thereon as to what amount of costs, allowance and fees as attorney and counsel said plaintiff’s.attorney should be awarded.” ,</p> <p>.Subsequently, and before the referee had taken any proof in the matter, the attorney brought an action in which he sought to recover compensation for the .services rendered by him in the partition action and also for other services. 'The issues joined in the action were referred by consent to the referee named in the order discontinuing the partition action, with power “ to-hear and determine the same.”</p> <p>Upon the trial before the referee the parties stipulated in open court that the proceeding in the partition action for the ascertainment of the value of the attorney’s services “ be merged in the present action and that the issues in that proceeding be deemed a part of the issues in .this action, the determination of which shall determine the issues in that proceeding, and that the determination of this matter shall be deemed res adjudícala as to the previous proceeding."</p> <p>The referee found that the plaintiff was entitled to recover and to be paid out of the fund deposited for that purpose a certain sum for services rendered in the .partition action, and directed judgment to be entered to that effect; as to the other causes of action the referee’s decision was adverse to the plaintiff: An order was" subsequently made on the defendant’s motion vacating the judgment entered on the report of the referee and recommitting the report to the referee, with directions "to separate such report into two parts, one of which should be made pursuant to the order of reference made in the action for services. and the other pursuant to the order of reference contained in the order discontinuing the partition action.</p> <p>The order in question was made upon the theory that, under the order of reference made in the partition action, the referee had authority only to 1 ‘ take proof and report the same to the court with ¿is opinion thereon ” and not to “ hear and determine.”</p> <p>Mela, that this view of the matter was erroneous, and that the order should be-reversed and the defendant remitted to his right to appeal from the judgment entered upon the referee’s report;</p> <p>That the defendant had deliberately waived his rights under the first order of reference by the stipulation made upon the trial before the referee, and that he could not, after a decision adverse to him,, repudiate the stipulation.</p>

<p> Agreement by a wife to will to her stepson so much of the estate left to her by his father as might not be used by her—it is not enforaible by the son. </p> <p>An agreement made by a husband with his wife, that the wife shall will to the husband’s son by 'a former wife so much of the property willed to her by her husband as shall remain at her death, does not entitle the son, in the event of the death of his stepmother, without performing the contract, to maintain an action for its specific performance, where he was not a party to the contract and no consideration moved from him to either of the parties, and it does not appear that he was an infant at the time the contract was made, or that either of the parties thereto was under any legal or equitable obligation to him.</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. the 16th day of May, 1902, upon the verdict of a jury for $400, and also from an order entered in said clerk’s office on the 20th day of May, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Priscilla Levett, and by the defendants, Edward T. Crispe and others, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Queens on the 20th day of October, 1902, dismissing the plaintiff’s complaint upon the opening.</p>

Appeal by the plaintiffs, Oliver C. Brown and another, doing business under the name of “ The Bent Glass Novelty Co.,” 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 14th day of April, 1903, denying a motion to punish the defendant Simon Braunstein as for a contempt.

<p>Appeal by the plaintiff, Louis H. Gein, from a judgment of the Supreme Court in favor of the defendant, William McCarty Little, ■entered in the office of the clerk of the county of New York on the 1st day of November, 1897, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint upon the merits.</p> <p>This appeal was transferred from the first department to the second department.</p>

Appeal by the defendant, Anton Doerr, from a judgment of the ■County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 18th day of June, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of July, 1902, denying the defendant’s motion for a new trial made upon the .minutes.

Appeal by the plaintiff, Louis J. Archer, from an order of the 'Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of April, 1903, changing the place of trial of the action from the .county of Westchester to the county of Putnam.

<p>Slander—a general denial and in a single count a defense in justification and in-mitigation— a demurrer to the latter, where it is sufficient as a defense in mitigation and insufficient as one in justification, is had—the judgment should, in any event, he interlocutory and not final—costs to he collected when the whole issue• is tried.</p> <p>The answer interposed in an action of slander, in addition to a general denial,, alleged, as a separate and distinct defense, certain new matter which was; pleaded in a single count both by way of justification and in mitigation.</p> <p>The plaintiff demurred, in terms, to the entire defense consisting of new matter, on the ground that it was insufficient in law. A final judgment was rendered sustaining the demurrer and awarding the plaintiff costs, with leave to collect the same by execution.</p> <p>Held, that, as the plaintiff did not contend that the defense was insufficient in law by way of mitigation (although it was conceded to be insufficient as a justification), the demurer should not have been sustained;</p> <p>That, if the plaintiff desired that the new matter by way of justification and by way of mitigation should be pleaded separately, he should adopt some appropriate remedy to accomplish that result;</p> <p>That the judgment sustaining the demurrer was also irregular in that it was final instead of interlocutory, and in that the costs were made collectible before the trial of the whole issue and the entry of the final judgment thereon.</p>

Appeal by the plaintiff, James W. B. Dávie, on behalf of himself and ail other members of the United Brethren’s Church on Staten Island, similarly situated, from a judgment of the' Supreme Court in favor.of the defendants, entered in the office of the clerk of the county of ¡Richmond upon the decision of the court, rendered after a trial at the. Richmond Special Term, dismissing the plaintiff’s complaint.

Appeal by the relator, William H. Steers, 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 3d day of .February, 1903., dismissing an alternative writ of mandamus.

Appeal by the defendant, Henry Ryan, from a judgment of the 'Court of Special Sessions of the Peace in and for the county of Kings, entered on the 28th day of November, 1902, convicting him of violating the Liquor Tax Law.

Appeal by the proponents, Charles J. Morton, Jr., and another, from a decree of the Surrogate’s Court of the county of Kings, •entered in said Surrogate’s Court on the 7th day of October, 1902, .adjudging and decreeing that the paper propounded as the last will .and testament of Anna Eliza (McCreddon).

Appeal by the plaintiff, George M. Kurz, from a judgment of “the Supreme Court in favor of the defendant, Leonhard Hess, Sr., bearing date the 12th day of March, 1903, and entered in the office of the clerk of the county of Kings upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint.

Appeal by the plaintiff, The People of the State of New York, from an order of the County Court of Westchester county, entered in the- office of the clerk of the county of Westchester on the 11th day of May, 1903, sustaining the defendants’ demurrer to an indictment against them charging them with the crime of pool selling, in violation of section 351 of the Penal Code, and directing that the charge be resubmitted to the grand jury.

Appeal by the defendant, The Board of Education of the City of' New York, 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 Richmond on the 9th day of May, 1903, granting a. peremptory writ of mandamus.

<p>Specific performance of a contract to deliver stock of a corporation — when insufficient ground is shown therefor—how far the demand for relief determines whether-an action is at law or in equity.</p> <p>WHhile a court of equity has jurisdiction to compel the specific performance of a. contract relating to personal property, such relief will be granted only where-the law affords no remedy or where it would be difficult, if not impossible, to-obtain compensation in damages.</p> <p>A complaint in an action brought to compel the specific performance of a contract by which the defendants were alleged to haVe agreed to deliver to the plaintiff, as compensation for certain services rendered by him, 1,000 shares off the capital stock of a corporation, or, in lieu of such specific performance, to compel the defendants to pay the plaintiff $100,000, the par value of the stock, is demurrable, where it does not allege that the stock had any peculiar value or that there are any circumstances rendering a computation of the value of the-stock difficult or impossible, of set forth any facts from which it may be-inferred that the plaintiff has not an adequate remedy at law.</p> <p>While a formal demand for relief with which a complaint concludes is not conclusive as to whether the character of the action is legal or equitable, yet: where the complaint sets forth facts which support equally an action at law or - in equity, the character off the action is. determined by the relief demanded.</p>

<p>Reply — not compelled, to an answer containing statements denying what the plaintiff must prove in order to succeed — a waiver of the requirements of a contract cannot be proved under an allegation of performance.</p> <p>The complaint in an action upon a bond, given by the defendant to ináure the performance of a contract between the plaintiff and a third party, alleged that the third party had failed to perform the contract and that the defendant was liable upon the bond. The complaint specifically alleged that the plaintiff had complied with all the conditions of the contract made and entered into by the defendant, upon his part to be kept and performed, and then set out the contract of guaranty in full.</p> <p>The defendant’s answer contained a general denial, and then set forth an allegation that it was provided in the agreement between the plaintiff and the defendant that the defendant should be notified in writing of any act on the part of the principal which would involve loss for which the defendant would be liable; that no such notice was given, and that the defendant was thereby relieved from obligation upon the bond.</p> <p>It further alleged that the bond contained a provision that any action thereon should be brought within six months after the breach of the contract, and that the action was not brought within said six months.</p> <p>Held, that the allegations óf the answer above set forth were simply specific denials of the allegations of the complaint, supplementing the general denial incorporated in the answer;</p> <p>That such allegations did not consist of new matter, and that the defendant was not entitled to require the plaintiff to serve a reply thereto;</p> <p>That the plaintiff, having alleged in his complaint performance of the contract made between himself and the defendant, would not be entitled to prove upon the trial a waiver by the defendant of the provisions of the contract in the particulars specifically set forth in the answer.</p>

Appeal by Jeremiah E. Barnes from art order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Orange on the 24th day of February, 1903, directing the appellant to deliver a policy of' life insurance to the respondent’s attorneys.

Cross-appeals by the plaintiff, William D. Stratton, as substituted receiver, etc., of the copartnership firm of Smith & Hanfield, com- . posed of James S. Smith and De Witt C. Hanfield, and by the •defendant, The City Trust, Safe Deposit and Surety Company of Philadelphia, from a judgment of the Supreme Court in favor of the •defendant, entered in the office of the clerk of the county of Orange on the 16th day of October, 1902, upon the decision of the court rendered after…

<p>Appeal by John F. Mills, as sole executor, etc., of Maria F. Mills, ■deceased, from an order of the Surrogate’s Court of Westchester county, entered in said Surrogate’s Court on the 18th day of September, 1900, upon the report of an appraiser, assessing the transfer fax upon the estate of Maria F. Mills, deceased.</p>

Appeal by George B. Mead, Jr., as executor, etc., of Anna W. Ferris, deceased, 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 Westchester on the 3d day of April, 1903, substituting said appellant as a party to the above-entitled proceeding in place of Anna W. Ferris, an incompetent person, and directing the Long Island Loan and Trust Company, the former committee • of the estate of said…

Appeal by the plaintiff, Samuel Eastham, from an order of the' Supreme Court, made at the Tioga Special Term and entered in the office of the clerk of the county of Tioga on the 16th day of May,, 1903, directing the plaintiff to receive the answer of the defendant, the York State Telephone Company, verified by one of its directors.

• Motion by .the appellant, the Comptroller of the State of New York, to. correct an order of the Appellate Division which affirmed a decree of the Surrogate’s-Court of the county of- Delaware, entered in gaid; Surrogate’s Court on the 23d day of September, 1901, by specifying the amount of. costs and. disbursements intended and .allowedby said order of affirmance. . ..

Appeal by the complainant, John J. McShane,; from an order made by a justice of the Supreme Court at Chambers and entered in the office of the clerk of the county of Albany on the 8th day of September, 1903, denying the complainant’s motion to review and set aside the action of the mayor of the city of Cohoes in the appointment of election officials, and directing him to appoint election officers from a certain list filed with him and authenticated by the appellant as…

Appeal by the defendant, The City of Albany, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Albany on the 19th day of November, 1 1902, upon the report of a referee. The action is brought to recover for work performed and materials ' furnished to the city of Albany in putting in a steel conduit, four • feet in diameter^ from the filtration beds of the city to the pumping ’ station on Montgomery street.

<p>Certiorari issued' out of- the Supreme Court-and attested on the 30th day of June, 1899, 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 county of Albany all and isingular his proceedings had in assessing a tax against the relator, a domestic corporation, for the year ending October 31, 1897.</p>

<p>Champerty—purchase of a chase in action by an attorney with intent to sue thereon — the attorney's donee or assignee may enforce it'for her own benefit —presumption that it is enforced, for her benefit.</p> <p>While an attorney who buys, a chose in action for the purpose of bringing any suit thereon cannot himself enforce the same, he acquires a good title to the . chose in action, which he may transfer to another either by gift or for value, and his- donee or assignee may enforce such chose in action for her own benefit, although she was cognizant of the unlawful purpose with which the attorney • purchased it.</p> <p>If it appears that the action brought by the attorney’s donee or assignee is brought in the interest of the attorney the court may refuse relief, but -the presumption in such a case is that the action is brought solely in the interest of the donee or assignee, even though she be the wife of the attorney.</p>

Appeal by The Rational Spraker Bank of Canajoharie, R. Y., from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of- Montgomery on the 13th day of August, 1901, directing publication of a notice, -pursuant to-chapter 451 of the Laws of 1899, as amended by chapters 171 and 503 of the Laws of 1901, and also from an order made at the Montgomery Special Term and entered in the office of the clerk of the county…

Appeal by the plaintiff, William H. Headdings* from an order of the Supreme Court, made at the Washington Special Term and entered in the office of the clerk of the county of Washington on the 11th day of May, 1903, granting the defendant’s motion to open a judgment taken by default in the above-entitled action.

Appeal by the defendant, National Railway Spring Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 16th day of Novembér, 1901, upon the verdict of a jury for $2,708.33, and also from an order entered in said clerk’s office on the 11th day of November, 1901, denying the. defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Louis M. Brown and another, as executors, etc., of William E. Spier, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 8th day of December, 1902,-upon the verdict of a jury, and also from an order bearing date the 30th day of October, 1902, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.</p> <p>The action is upon a promissory note made by the Republic Power and Cyaniding Company, dated Montreal, March 1, 1901, payable six months after date to the order of that company at the Merchants’ Bank of Canada, in Montreal, which is indorsed by that company, by William E. Spier, defendants’ testator, and by A. A. Ayer. Spier died May 8,1901, and the defendants were appointed executors of his will by the Surrogate’s Court of Warren county July 1,1901. This suit is brought on the indorsement made by Spier. The defenses are .that there was a failure to give due and timely notice of protest and that there has been a material alteration made in .the contract of indorsement, which discharged Spier and his estate from liability on the note.</p>

<p>Receiver — removal of—opportunity to answer charges should he given him — the fact that he was a director and the treasurer of a corporation does not prevent his being its receiver. ■ -</p> <p>A judgment creditor of a corporation, who had brought an action to procure a judgment sequestrating the property of the corporation, procured an order to show cause why a receiver of the property of the corporation should. not be appointed.</p> <p>The order to show cause directed that service of the moving papers be made on the corporation and on the Attorney-General. A Deputy Attorney-General, assuming to act on behalf of the Attorney-General, admitted service of the moving papers. On the return of the order to show cause the Corporation appeared, and also an attorney on behalf of the Attorney-General. No objection being made thereto, one Jennings was appointed temporary receiver of ' the corporation and he immediately qualified. Fourteen days later the Attorney-General made a motion to vacate the order appointing the receiver upon the ground that the Deputy Attorney-General, who - assumed to admit-service on his behalf, had no authority to do so. Upon the return of such, order to show cause, a further order was made directing that the order appointing- Jen- ' nings as receiver.be opened, and that the application for the appointment of a. receiver be heard at a later date. •</p> <p>On the return of the last-mentioned order none of the interested parties objected . to the appointment of a receiver, but an affidavit was presented on behalf of the Attorney-General and certain other parties, in which they attacked the-qualifications and fitness of Jennings to act as receiver. Jennings was afforded no opportunity to answer such affidavit, except by an oral statement, which he ■ made in open court. The proceeding resulted in an order Continuing,' ratifying and confirming Jennings’, appointment.</p> <p>Held,- that the order should he affirmed, without prej udice to a direct application to remove Jennings as receiver, upon the hearing of which application full opportunity for a hearing could be given to the receiver and to all parties interested;</p> <p>That the fact that Jennings had been a director and the treasurer of the defendant corporation was not of itself a sufficient reason why he should not have been appointed receiver, or why he should be removed from such position.</p>