Volume 87 — New York Appellate Division Reports

<p>Costs of an action brought, without authority of a school district, by the trustees thereof— they are not collectible out of the property of the district — the trustees are individually liable therefor — their successors adopting the cause of action a/re also liable —an order under section 3347 of the Code of Civil Procedure should not direct that an execution issue.</p> <p>The trustees of school district No. 3 in the city of Kingston, without obtaining authority from the school district, brought an action in the City Court of Kingston to recover a school tax which they claimed had been lawfully assessed against the defendant.</p> <p>The City Court of Kingston rendered a judgment in favor of the trustees for the amount of the tax and costs, which judgment was affirmed by the County Court. The defendant then took an appeal to the Appellate Division, which</p> <p>■ reversed the judgment, with costs to the defendant in the Appellate Division and in the County Court to abide the event of the action, and ordered a new trial in the City Court of Kingston. The order further directed that, upon the final termination of the action, if in the defendant's favor, a judgment in favor of the defendant for the costs so allowed might be entered.</p> <p>Upon the new trial in the City Court of Kingston the plaintiff was nonsuited and a judgment for costs rendered in defendant’s favor. The defendant then entered a judgment for the costs awarded by the Appellate Division.</p> <p>After the appeal had been taken to the Appellate Division, but before it had been argued, the property of the school district and the powers and duties of the trustees of the school district were transferred to the board of education of the city of Kingston by chapter 494 of the Laws of 1902, which further provided that such property- should “remain and continue and is hereby made liable for the present indebtedness of such district respectively until the same is fully paid.” The new board took charge of the case and allowed it to proceed in the name of the old board, employing to defend the appeal the same attorney who had been employed by the old board.</p> <p>Upon a motion made under section 3247 of the Code of Civil Procedure to compel the. new board to pay the judgment for costs rendered against the old board it was</p> <p>Held, that as the old board had commenced the action without any authority from the school district, the judgment was not a claim against the property of the district either in the hands of the old board or in that of the new board;</p> <p>That the members of the old board were, however, personally liable for the amount of the judgment, and that, as the new board had succeeded to the cause of action and had adopted such cause of action as their own, they Were personally liable for the judgment for costs recovered by the defendant;</p> <p>That, as section 3247 of the Code of Civil Procedure provides that the disobedience. of an order for the payment of-costs made pursuant to that section is a contempt of court, such an order should not provide for the issuance of an execution.</p>

Appeal by the defendants, Sandy Casler, as sole surviving executor, etc., of Josiah Snell, deceased, and another, from certain portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 13th day of March, 1903, upon the decision of the court, rendered after a trial at the Montgomery Trial Term, certain questions of fact having been submitted to the jury.

Appeal by the defendants, Charles H. Sturges, as executor, etc.,, of Mary Steiner Putnam, deceased, and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Saratoga on the 13th day of February, 1903, upon the report of a referee.

Appeal by the plaintiff, The Dunbarton Flax Spinning Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 21st day of March, 1903, upon the report of a referee dismissing the plaintiff’s complaint The plaintiff is a foreign manufacturing corporation and has been engaged in its business of spinning flax, within the State of New York, since February 1, 1892.

<p>Guardian — when not. allowed on an accounting the commissions paid to a real estate agent for collecting rents of the ward’s estate.</p> <p>The general rule is that administrators, executors, trustees and guardians must perform, -within reasonable limits, the actual manual labor requisite to the due execution of the trust reposed in them. When, however, from the peculiar nature and situation of the property, the services of a clerk, bookkeeper or agent are necessary, the expense involved in having such services rendered by ,them will be allowed.</p> <p>A- trust company was appointed temporary guardian of the property of an infant, who owned a house and lot and a block of stores,-with apartments above. All such real property was situated in the same city and not far from the trust company’s place of business. It was rented to nine different tenants. The temporary guardian, instead of collecting the rents itself, employed an agent for that purpose, paying him the usual five per cent commission.</p> <p>Upon the trust company’s accounting the surrogate found, as a fact, that the trust company was not warranted in employing an agent to collect the rents of the real property, and refused to allow the commissions paid to the agent as a disbursement.</p> <p>.Held, that the surrogate’s determination on the facts as to the lack of necessity for employing an agent to collect the rents should not he disturbed.</p>

Appeal by Michael F. O’Connor, the plaintiffs’ attorney, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of Sara-toga on the 21st day of August, 1903, directing that the appellant pay to the defendants, Alice Isabella Davidson and John P. Davidson, certain moneys paid into court by them.

Appeal by the defendant, William Shannon, from a judgment of the County Court of Westchester county, entered on the ,11th day of February, 1903, convicting the defendant of pool selling in violation of section 351 of the Penal Code.

<p>Attachment—requisites of its levy—proof of service on “ the treasurer or managing agent of the defendant,” not alleging that it was a corporation, is insufficient— an execution supersedes the. attachment lien — the return of the execution terminates the lien.</p> <p>A substantial compliance with the requirements of. section 649 of the Code of Civil Procedure, which prescribes the method in which a levy under a warrant of attachment shall be made, is essential to the validity of the levy.</p> <p>A complaint in an action brought against “Albert Palmer Company,” in aid of an attachment, which alleges that the attachment papers were served upon “ Cornelius A. Palmer, who then was the treasurer or managing agent of the defendant herein,” but which does not allege that the defendant is a corpora- • tion, is fatally defective, as, in the absence of such an allegation, it does not appear that service upon the said Cornelius A. Palmer was sufficient service upon the defendant.</p> <p>An execution issued in the form prescribed by section 1370 of the Code of Civil Procedure, upon a judgment recovered in an action in which the judgment creditor has previously obtained an attachment, operates to supersede the lien of the attachment, and the judgment creditor cannot thereafter, maintain an action in aid of the attachment.</p> <p>The return of an execution wholly unsatisfied terminates the lien created by its issue upon the judgment debtor’s personal property.</p> <p>Appeal by the defendant, the Albert Palmer Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Orange on the 12th day of March, 1903, upon the decision of the court, rendered after a trial at the Orange Special Term, overruling the defendant’s demurrer to the plaintiffs’ complaint.</p>

<p>Negligence—a street car.passenger having a transfer ticket injured while alighting from the ca/r at the point of transfer in the absence of the conductor — when a non-suit is improper.</p> <p>In an action brought to recover damages for personal injuries it appeared that the plaintiff boarded one of the defendant's street cars and received from the conductor thereof a transfer ticket entitling her to passage upon another street car line. Just before the car reached the point of transfer the plaintiff noticed the conductor leave the car. When the car reached the point of transfer it stopped and the plaintiff started towards the rear thereof. Before she had reached the door the car started, but stopped a car length further oh. The plaintiff then went upon the platform of the car, and while she was in the act of alighting from the steps the car suddenly started, without signal or warning, and she was thrown into the street.</p> <p>At the time the car stopped on the second occasion there was no person or vehicle in the street in front of it, or anything to indicate that the car had stopped for any other purpose than to permit passengers to alight.</p> <p>The accident occurred about eight o’clock in the evening, when it was not very dark and when the streets were lighted. The plaintiff was familiar with the locality and with the point of transfer.</p> <p>Held, that the question whether the plaintiff, was guilty, of contributory negligence was one of fact and not of laW, and that it was improper for the trial court to nonsuit the plaintiff;</p> <p>That the absence of the conductor left the plaintiff to her own resources, and that, as she was thereby put to an election between acting upon the reasonable appearance of things indicating that the car had stopped for her convenience or of submitting to the inconvenience of being carried beyond the place of transfer, the question whether, in adopting the alternative she did, she exercised a proper degree of care was for the jury to determine.</p> <p>In reviewing a judgment entered upon a nonsuit, the plaintiff is entitled to the . most favorable view which the evidence warrants.</p>

Appeal by the plaintiff, John Coles, Jr., from a judgment of the, County Court of Orange county in favor of the defendant, entered in the office of the clerk of the county of Orange on the 3d day of June, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.

Appeal by the petitioner, Patrick W. Cullman, as State Commissioner of Excise, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 21st day of April, 1903, denying the petitioner’s motion to revoke and cancel liquor tax certificate No. 1,863, issued to Edward Davidoff and transferred to Henry Luca, and also from a judgment for costs against the appellant entered in said clerk’s office…

Appeal by Emma C. Perry and others, property owners, 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 10th day of February, 1903, confirming the report of commissioners of estimate and assessment appointed in the above-entitled proceeding.

Appeal by the plaintiff, William H. Berry, 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 17th day of September, 1902, upon the decision of the court, rendered after a trial at the Orange Special Term, dismissing the plaintiff’s complaint.

<p>Settlement of a case on appeal — duty of the justice settling it — 7iis decision, 7iow fas' conclusive.</p> <p>In the settlement óf a case upon appeal, what occurred upon the trial must be ascertained from what the presiding justice finds to be the truth;</p> <p>He may hear and consider the affidavits of the parties and their counsel, inspect their notes as well as his own, and consult his own recollection, as well as other accessible means of information.</p> <p>It is liis duty to settle the case according to his own recollection of what occurred, and he cannot be compelled to place upon the record statements of facts which are at variance with his recollection. .</p> <p>The law does not look with favor upon contests over the settlement of cases upon appeal, and the decision of the trial justice will be treated as conclusive unless there is a manifest abuse of power.</p>

Certiorari issued out of the Supreme Court and attested on the 13th day of December, 1902, directed to Thomas E. Cross and others, individually and as members of the board of auditors of the town of Lagrange, county of Dutchess and State of New York, commanding them to certify and return to the office of the clerk of the county of Dutchess all and singular their proceedings had in auditing certain alleged illegal claims for highway labor.

Appeal by the defendant, Smith Foster, from a final order of the Municipal Court of the city of New York, borough of Queens, entered on the 23d day of March, 1903, in summary proceedings, directing the defendant’s removal from the premises described in the petition.

Appeal by the defendant, Isidor Newman, 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 June, 1902, upon the verdict of a jury for $350, and also from an order granted the 14th day of July, 1902, and entered in saifi clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Hurley, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the cleric of the county of Kings on the 9th day of December, 1902, denying his motion to set aside the verdict of a jury in favor of the plaintiff, as inadequate, and for a new trial made upon the minutes.

<p>Appeal by the defendant, the Edison Electric Illuminating 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 20th day of January, 1903, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 19th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Jeremiah A. McCue, from a judgment of the County Court of Westchester county, entered on the 3d day of October, 1902, convicting the defendant of the crime of poolselling.</p>

Appeal by Peter B- Olney and another, copartners, composing-the firm of Olney & Comstock, from an order of the Supreme-Court, made at the Westchester Special ffierm. and entered in the office of the clerk of the county of Westchester on the 8th day of January, 1903, vacating an order theretofore entered in said clerk’s-office confirming the- report of a referee appointed in the above-entitled action.

<p>Carrier’s' lien—to what it attaches.— what , disposition should be made by a ccortman in New York city of property on which a lien is claimed.</p> <p>A carrier’s lien for services is limited to articles with, respect to which he rendered services as a carrier, and does not extend to articles' belonging to his employer of which he offered to take charge, but in cpnnection with which he did not render any services as a carrier.</p> <p>A public cartman in the city of New York, who seeks to obtain a lien under the ordinances of that city upon property carried by him, should convey the property either to the property clerk of the police department or to a convenient storage warehouse and should not keep it in his own possession.</p>

<p> Agreement to pay one-half of overpaid water rates to a person collecting them,, enforced—proof under a general denial of a partial failure of consideration. </p> <p>Under what circumstances a person to whom a corporation, which has overpaid water rates, has agreed to pay one-half of the amount thereof collected by him is entitled to enforce such agreement, although the corporation might have received the amount overpaid without his intervention, considered.</p> <p>Qumre, whether in an action to recover upon a contract expressing a good consideration, evidence of a partial failure of consideration is admissible where the only defense set up in the answer is a general denial.</p>

Appeal by the defendant, George Landwehr, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 25tli day of February, 1903, upon the decision of the court, with notice of an intention to bring up for review upon such appeal an order entered on the 26th day of February, 1903, denying the defendant’s motion to vacate a warrant of attachment theretofore granted herein.

. Appeal by Harriet T. Provost, as sole surviving administratrix, ■etc., of David S. Provost, deceased, from a decree of the Surrogate’s Court of Kings county, entered in said Surrogate’s Court on the 2d day of February, 1903, confirming the report of a referee upon an .accounting, and directing the appellant to file an amended account.

Appeal by the plaintiff, “ Ernest Ochs,” a Corporation, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of September, 1902,- upon the verdict of á jury, and also from an order bearing date the 27th day of May, 1902, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, James Graham, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rings on the 17th day of November, 1902, upon the decision of the court rendered after a trial before the court without a jury at the Rings County Trial Term.

Appeal by the defendant, Sophia T. Hawkins, 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 25th day of May, 1903, denying said defendant’s motion to vacate and set aside an order previously made in the action directing the service of the supplemental summons therein- by publication, and also denying her motion to vacate the service of said summons upon her pursuant to such order…

Appeal by the plaintiffs, Thomas Kane and others, from an order of the Supreme Court, made at the' Suffolk Special Term and entered in the office of the clerk of the county of Suffolk on the 5th day of May, 1903, directing the plaintiffs, jointly and severally, to pay to Joseph Wood the sum of $295.68.

<p>Appeal by the defendant, Francis X. Donoghue, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 10th day of February,, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 10th day of February, 1903, denying the defendant’s motion for a new trial made upon the: minutes.</p>

Appeal by the plaintiff, James Hartley, from a judgment of the Supreme Court in favor of 'the defendant, entered in the office of the clerk .of the county of Kings on the 12th day of May, 1902,, upon the'decision of the court., rendered after a trial before the court without a jury at the Kings County Trial Term, dismissing the complaint upon the merits.

Appeal by the defendant, John T. Lee, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 13th day of April, 1903, after a trial before the court without a jury.

<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 8th day of January, 1903, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 26th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, George Godfrey, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the defendant, entered on the 21st day of January, 1903, upon the verdict of a jury rendered by direction of the court.</p>

Appeal by the defendant, Mary J. Willmarth, 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 11th day of October, 1902, upon the decision of the court rendered after a trial at the Nassau Special Term.

<p>Appeal by the plaintiff, John A. Freeman, from a judgment of the County Court of Kings county in favor of the defendant, entered in the office of the clerk of the county of Kings on the 16th day of January, 1903, upon the verdict of a jury rendered by direction of the court, 'and also from an order entered in said clerk’s office on the 16th day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal in the first above-entitled proceeding by the defendant, William H. Maxwell, as city superintendent of schools of the city of New York, from an interlocutory judgment of the Supreme Court in favor of the relator, entered in the office of the clerk of the county of Kings on the 12th day of March, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the relator’s demurrer to the return to an alternative writ of…

Appeal by the defendant, Nathan Erlanger (sued as N. Erlanger), from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of July, 1903, denying the said defendant’s motion for a bill of particulars.

Appeal by the Manufacturers and Traders’ Bank-of Buffalo, . N. Y., 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 25th day of February, 1903, confirming the report of a referee, with notice - of an intention to bring up for review upon such appeal various intermediate orders.

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

<p>Appeal by the plaintiff, Joseph Levine, 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 tin,the 14th day of ktarch, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term. . . . ,</p>

Appeal by the defendant, Charles C. Valentine, from portions of' an interlocutory judgment of absolute divorce in favor of the plaint tiff, entered in the office of the clerk of the county of New York on the 9.tk day of March, 19.03, upon the decision of the. court rendered after a trial at the New York Special Term.

Appeal by the defendant, Miguel Alvarez, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of July,- 1903, denying the said defendant’s motion to vacate a previous order for his examination as a witness before trial, and directing him to produce upon such examination certain books and records.. •

Appeal by the defendants, Aaron Stern and Meyer Branner, doing business under the name and style of Greater New York Pickle Works, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the. county of New York on the 7tli’day of May, 1903, granting the plaintiff’s motion to prosecute the action as a poor person. The facts are stated in the dissenting opinion of Van Brunt, P. J.

Appeal by the plaintiff, Percy A. Pickrell, 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 19th day of May, 1903, granting leave to the defendant Charles L. Mendel to serve a supplemental answer upon payment of fifteen dollars costs.

<p>Appeal by the plaintiff, Eva K. Oonlon, 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 June, 1908, denying the plaintiff’s motion for a new trial upon the ground of newly-discovered evidence.</p> <p>The action was brought for the specific performance of a contract whereby the plaintiff alleges her husband, now deceased, agreed, for a valuable consideration, that she should have all his property upon his death. The principal facts and the claims of the parties were recently considered by this court in Conlon v. Mission of Immaculate Virgin (84 App. Div. 507). Upon that appeal a decision of the Special Term dismissing the complaint upon the merits was affirmed, with slight modifications. This appeal is from an order denying a motion for a new trial upon the ground of newly-discovered . evidence, and the question presented is whether or not the evidence it is proposed to introduce is such as calls for a new trial.</p> <p>The affidavit of the plaintiff in support of the motion avers that as the result of a search recently made at the instigation of her attorney among her husband’s effects she discovered three papers, of which she previously knew nothing, which papers are in the handwriting of her husband; that one of these, consisting of a leaf from a memorandum book, she found folded up among some papers in an old cloth bag in a trunk which, prior to her husband’s death, had been sent to a storage warehouse, and which she thought contained only papers relating to business transactions between him and his father, but on this leaf he had written:</p> <p>“ For love and care I agree to make Bnnnis my heir. •</p> <p>“J. P. C. ‘DOC.’”</p> <p>She further avers that among other things which had been stored prior to her husband’s death was an old leather dressing case of his which contained toilet articles, and which she had no reason to believe contained papers, but in it she found some old check books,, and on the back of one of the blank checks was written in his handwriting:</p> <p>“ Halifax, 1896, Rec’d from E. Kinnis, Eight thousand five hundred 8,500 $ in lieu for all my estate.</p> <p>“J. P. CONLON.”</p> <p>The third paper, a leaf torn from a safe deposit company pad, the plaintiff avers she found in a box in the safe deposit vault in the pocket of a card case among some visiting cards of her husband, and on this slip of paper he had written:</p> <p>“ Feb. 21/95. This day I agree and contract with E. ELinnis to give her all my property real and personal.</p> <p>“J. P. COKLOK”</p> <p>The averments of the. plaintiff are supported by two other affiants who further state that the plaintiff was called “ Kinnis ” by her husband and he was often called “ Doc,” and that at the time of the .search the plaintiff was looking for some paper which her husband had given her by way of receipt for money she had given him when these other papers were found.</p> <p>The motion of the plaintiff for a new trial upon this new evidence was denied by the court, and from the order so entered the plaintiff appeals.</p>

Appeal by the plaintiff, George Kirsop, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1903, permitting the, defendant, The Mutual Life Insurance Company of New York, to substitute Mary J. Sweeney as defendant in the action in its place and stead, upon paying into court the amount due upon the policy in suit.

Appeal by the defendant, The Standard Gas Light Company of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 17th day of January, 1903, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 13th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Report of commissioners of estimate and assessment in New York city —proceeding to determine the damages arising from the dosing of a street instituted after and combined with one for opening a street — when two reports are proper.</p> <p>Where after a street in the city of New York has been closed and, before any proceedings have been had to ascertain the damages sustained by the interested property owners in consequence thereof, a proceeding is instituted to open a street in the vicinity of the closed street, and the court, under the authority of section 14 of chapter 1006 of the Laws of 1895, directs the commissioners of estimate and assessment, appointed in the street opening proceeding, to ascertain and determine the compensation which should be made to interested ■ property owners on account of the closing of the adjacent street, the commissioners of estimate and assessment are not obliged to delay filing, their report in the street opening proceeding until they are ready to report in respect to the damages resulting from the closing of the street; whether they shall include both subjects in a single report is a matter resting in the discretion of the commissioners..</p> <p>Where both the opening and'the closing of the street do not each affect the same property exclusively, the better practice is for the commissioners to make a separate report in each case.</p> <p>Laughlin, J., dissented.</p>

<p>Section 308 of the Code of Criminal Procedure, directing the payment hy a county of compensation to an attorney assigned to defend a prisoner accused of a capital offense, is constitutional — the attorney is entitled to compensation although not assigned until after the prisoners arraignment.</p> <p>Section 308 of the Code of Criminal Procedure, which authorizes the payment, out of the funds of a county, of not more than $500 to an attorney assigned to defend a person accused of a capital offense as compensation for such attorney’s services, does not violate section 10 of article 8 of the Constitution of the State of New York, which provides that no county shall give any money “to or in aid of any individual” nor shall incur any indebtedness except for county purposes.</p> <p>The payment authorized by the section in question is for a legitimate county purpose.</p> <p>The statute is not limited to an attorney assigned at the arraignment of the offender. If the attorney actually takes part in the trial, he falls within the provisions of the section, even though he was not assigned until after the arraignment.</p> <p>Van Brunt, P. J., and Ingraham, J., dissented.</p>

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the' 15th day of December, 1902, upon the verdict of a jury for $2,000.</p> <p>The action was commenced on the 25th day of July, 1902, to recover damages for the death of plaintiff’s intestate, which occurred on the 3d day of December, 1901, alleged to have been caused through the negligence of the defendant.</p>

Appeal by William G. Tracy and Grant D. Green, as executors of and trustees under the last will and testament, of George 1ST..

Appeal by the defendant, Speros C. Chrestopulos, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 6th day of April, 1903, denying the defendant’s motion to vacate an order of arrest theretofore made in the action.

<p> Liability of a husband for medical services rendered to his wife, although he has separated from, her for sufficient cause. </p> <p>A husband, who, for sufficient cause, has separated from his wife, is liable, as long as the marital relation continues, for actual necessaries furnished to the wife, unless he has made adequate provision for her maintenance.</p> <p>The fact that such a husband notifies a particular physician that he will not be responsible for any further services which the physician may render the wife, will not prevent the physician from recovering from the husband compensation for necessary medical attendance rendered by the physician to the wife after receiving the notification, where it appears that the husband, after giving the notification, made no provision for supplying his wife with necessary medical attendance.</p>

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21st day of February, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’fe office on the 17th day of February, 1903, denying the defendant’s motion for a, new trial made upon the minutes.</p> <p>The plaintiff sues to recover, damages for injuries inflicted by being kicked by one of the defendant’s horses while he was a passenger on the front platform of defendant’s horse car, proceeding easterly along Prince street into the Bowery on the afternoon of September 2, 1899. The negligence alleged is .that the driver drove the horses so recklessly and at such á high rate of speed at the intersection of Prince street and the Bowery that one of the horses fell and, in endeavoring to extricate himself, injured the plaintiff. The Prince street cars turn from an easterly to a northeasterly direction at the Bowery and proceed across it and thence easterly into Stanton street.. The accident, it is claimed, occurred upon the curve from PrinCe street, the horse falling just before reaching the westerly rail • of the south-bound Third .avenue track. The plaintiff is a- painter and with his son boarded the horse car carrying paint pots and was told by the conductor to go to the front platform. There he deposited his paint pots and stood behind and to the right of the driver about a foot from the right-hand step of the front platform. There were five or six people on the platform and the car wag crowded. The plaintiff’s evidence is that as the car approached the Bowery the horses were- going fast, and that there was a south-bound Third avenue car in sight, and to get ahead of it the driver whipped the horses into a run, and as they approached the track the right horse fell on his right side and the car ran up to him and over his hindquarters, and he struggled to extricate himself and the driver and some others jumped off while' plaintiff stoód still upon the platform, and they pushed the car back from the horse and as the car was moving backward the horse got his left leg out and kicked in between the car and the front dashboard and struck plaintiff in the leg. A passenger bn the car testified that the horses were running and that one of them fell, and that after the car stopped he got off with two. or three men. He. says : “ We pushed the car back and I saw the horse after cmhile rise up his foot and kick the man in the leg; * * * the car started to go back and he started to release himself and he got one foot out before the car was clear of him and I saw the horse kick Roedecker; * * * the car kept on going back after Mr.’ Roedecker was kicked.”</p> <p>Motion to dismiss the complaint was denied and exception taken by the defendant, who then introduced evidence tending to support a different version of the accident, namely, that the horse did not fall because running and being negligently driven on the curve, but because while proceeding slowly he slipped upon the asphalt, and that the plaintiff when kicked was on the street and not upon the platform. The motion to dismiss the complaint was renewed and denied and an exception was taken. "The jury found a verdict in plaintiff’s favor, and from the judgment so entered and an order denying a new trial the’defendant appeals.</p>

Appeal by the defendant, Post Printing and Publishing Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of May, 1903, denying the defendant’s motion to set aside the service of the summons and corhplaint.

Appeal by the defendant, George G. Haven, Jr., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of'New York on- the 20th day of July, 1903, denying said defendant’s motion to have a mechanic’s lien vacated and canceled of record.

Appeal by Heloise Durant Rose from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of July, 1903, vacating an order for the examination of William W. Durant in proceedings supplementary to execution.

Appeal, by the defendants, Herbert Coope 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 New York on the 25th day of March, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s claim to a mechanic’s lien and setting aside certain transfers of real estate.

<p> Witness subpoenaed to testify and produce [corporate books before a commissioner appointed by a foreign court—Tie cannot be required to leave them with the commissioner. </p> <p>A witness, subpoenaed to attend, in the State of New York, before a commissioner appointed by a foreign court to take testimony in an action pending therein and to produce before such commissioner the books of a corporation carrying on business in the city of New York, should not be required to deposit and leave such books with the commissioner.</p>

<p>Appeal by the defendant, Caroline G. Eedington, from an order of the Supreme Court, made at the New York Special Term and entered in .the office of the clerk of the county of New York on the 9th day of July, 1903, denying said defendant’s motion to require the plaintiff’s attorneys to accept service of an order for the plaintiff’s examination before trial and to produce her for examination; and also from an order entered in said clerk’s office on the 10th day of August, 1903, denying the said defendant’s motion to amend the first-mentioned order by inserting therein a statement that the motion was denied for want of power.</p>

Appeal by the defendant, Paul Boyton, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of December, 1902, upon the verdict of a jury rendered by direction of the court. The action is to recover on a promissory note for $750 given by the defendant to the plaintiff due August 10, 1902.

Appeal by tbe defendant, Mortimer H. Wagar, as president of the Consolidated Stock and Petroleum Exchange of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.

.Appeal by the plaintiff, Axel W. Hallenborg, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of April, 1903, granting a motion made by the defendants William C. Greene and others to compel the plaintiff to serve a yeply to certain matter contained in the amended, answer of said defendants.

Appeal by the North River Savings Bank, the purchaser at a sale had pursuant to a judgment in the above-entitled action, from an order of the Supreme Court, made at the New York Special Term and entered, in the office of the clerk of the county of New York on the 5th day of June, 1903, requiring the said North River Savings Bank to complete its purchase.

Certiorari issued out of the Supreme Court and attested on the 13th day of December, 1902, directed to William D. Leonard, chairman, and others, commissioners, appointed under and by virtue of chapter 537 of the Laws of 1893, and continuing to act under the amendments to said act, commanding the said commissioners to certify and return to the office of the clerk of the county of New York all and singular their proceedings had upon the claim of the relators, together with…

Appeal by the defendant, The Industrial Federation of America, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of May, 1903, denying the defendant’s motion to resettle an order entered in the action on the 27th day of March, 1903.'

<p>Appeal by the plaintiff, Margaret B. Murphy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of December, 1902, upon the decision of the court, rendered after a trial before the court without a jury at the New York Trial Term, dismissing the plaintiff’s complaint upon the merits.</p>

<p>A denial of “ information sufficient to form a belief ” is frivolous—a bank certifying a check, not indorsed by the payee, may, before paying it, demand proof that the payee has transferred, it for value.</p> <p>An answer in which the defendant denies “ that it has information sufficient to form a belief” as to certain allegations of the complaint, is frivolous because of its failure to allege the defendant’s lack of knowledge as well as of information.</p> <p>A hank which, at the request of the holder of a check which had not been indorsed by the payee, certifies such check, cannot be compelled to pay such check without proof that the payee of the check transferred it to the holder for value.</p> <p>The hank is not presumed to possess such knowledge, and is, therefore, entitled, in an action brought against it by the holder to recover the amount of the check, to put in issue the question whether the holder is a transferee thereof for value. • '</p>

<p>Assessment for tax — review of, in New York city — a writ of certiorari cannot be used to review a reassessment, made pursuant to a decision entered after a hearing under such, writ — the party assessed is entitled to a new writ.</p> <p>Where, on the return to a writ of certiorari issued under section 253 of the Tax Law (Laws of 1896, chap. 908) to review an assessment for taxation made by the commissioners of taxes and assessments of the city of New York, the court either vacates the assessment, corrects it, or directs a reassessment, the force of the writ of certiorari is expended and no further proceedings can be had thereunder.</p> <p>If a reassessment is ordered, and its correctness is disputed, a new writ of certiorari must be obtained.</p> <p>Independent of this' principle, where the reassessment is made by a different board of taxes and assessments than the original assessment, and, on such reassessment, entirely different questions from those presented by the original assessment are determined, the party assessed is entitled, by the express provisions of section 906 of the revised New York charter (Laws of 1901, chap. 466), to a new writ of certiorari.</p>

Appeal by James R. Kiernan, as receiver of The Greater New York Amusement Company, from so much of an order of the. Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 29th day of July, 1903, denying the defendant’s motion for the discharge of the receiver, as gives such defendant leave to renew the motion upon compliance with certain terms and conditions.

Appeal by the defendant, William 0. Greene, 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 4th day of August, 1903, denying the defendant’s motion for a bill of particulars.

Motion by the plaintiff, Frank Foy, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the ¡New York Trial Term.

<p>Application to intervene — when although, not a matter of right under section 452 of the Code of Civil Procedure the court has power to grant it.</p> <p>The firm oí Frederick W. Mertens & Sons consisted of Frederick W. Mertens, Sr., Frederick W. Mertens, Jr., and Robert E. Mertens. Robert E. Mertens died, leaving surviving him his widow, Laura E. Mertens, and an infant son, Robert E. Mertens, Jr. Subsequently Frederick W. Mertens, Sr., died leaving a will' by which he bequeathed a legacy of §25,000 to Robert E. Mertens, Jr. Frederick W. Mertens, Jr., who was appointed executor of his father’s estate, continued to conduct the business formerly conducted by the partnership and rendered no accounting of such business.</p> <p>In a proceeding instituted by Laura E. Mertens, as general guardian of Robert E. Mertens, Jr., for an accounting by Frederick W. Mertens, Jr., as executor of the estate of Frederick W..Mertens, Sr., the surrogate charged the executor with a substantial sum for property belonging to the estate in the hands of the executor. He also found that this sum was exclusive of the value of the good</p> <p>. will, assets and uncollected accounts of the firm, but refused to direct an accounting with respect to the latter matters.</p> <p>Thereupon Laura E- Mertens, as administratrix of Robert E. Mertens, commenced an action against Frederick W. Mertens, Jr., individually and as sole surviving partner of the firm, and as sole executor of Frederick W. Mertens, Sr., for an accounting with respect to the partnership assets.</p> <p>Upon an application by Robert E. Mertens, Jr., for leave to intervene in the action it was <</p> <p>Held, that, while the^infant, as legatee under the will of Frederick W. Mertens, Sr., had no direct interest in the action, and was, therefore, not entitled, as a matter of strict legal right, to intervene in the action under the provisions of section 452 of the Code of Civil Procedure, the court had power to allow him to intervene;</p> <p>That as, in contemplation of law, the plaintiffs sole interest in the action was as administratrix of her husband, and as Frederick W. Mertens Was hostile to the interests of the infant, the court would, in order to protect the infant’s rights, permit him to intervene.</p>

<p>Specifications for public work—when a drawing attached thereto indicating the “ probable surface of rock as shown by borings ” does not constitute a warranty.</p> <p>A municipal corporation furnished to bidders for the work of constructing a sewer in one of its streets a printed copy of the specifications, to which was annexed a drawing showing the location of the sewer with reference to the surface of the street. This drawing also showed a convoluted dotted line extending the entire length of the sewer, marked “probable surface of rock as shown by borings.”</p> <p>The specifications contained the following clause: “ Some rod soundings have been made to ascertain the position of the rock where this work is to be built and the result of these tests has been shown on the plans; should the location of the rock be found to differ from what is indicated, the contractor shall have no claim on that account, and it is expressly understood that the Corporation of the City of New Tork does not warrant the indication of the tests to be correct.”</p> <p>Held, that bidders were not justified in relying upon the convoluted line shown on the drawing as constituting a warranty concerning the depth at which rock would be found.</p>

Appeal by the plaintiff, The Belle of Bourbon Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day of April, 1903, setting aside a verdict for $9,099.14 theretofore rendered in favor of the plaintiff and granting a new trial.

Appeal by the defendant, The Fidelity and Casualty Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of June, 1902, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 6th day of June, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Liability of a stockholder of a full liability business corporation—it is restricted by section 55 of the Stock Corporation Law—misjoinder of parties defendant.</p> <p>The liability imposed' upon the stockholders of a full liability business corpora-' tion by section 6 of the Business Corporations Law (Laws of 1892, chap. 691)-which provides, “All the stockholders of the corporation shall be severally individually liable to its creditors for all its debts and liabilities,” is modified, and restricted by the provision of section 55 of the Stock Corporation Law (Laws of 1892, chap. 688) which declares that, no action shall be brought to-enforce the liability of a stockholder for the debts of a corporation unless an action to collect the indebtedness shall have been brought against the corporation within two years after the debt became due.</p> <p>The objection that there is a misjoinder of parties defendant is not a defense which may be raised by answer.</p>

Appeal by the plaintiff, Samuel Green, from an interlocutory judgment of the Supreme Court in favor of the defendant Chaim Weitzman, entered in the office of the clerk of the county of New York on the 8th day of April, 1903, upon the decision of the court, rendered after a trial at the Kew York Special Term, sustaining a demurrer to the complaint interposed by the defendant Weitzman, upon the ground that it did not state facts sufficient to constitute a cause of action.

Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 9th day of April, 1903, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 23d day of March, 1903, granting the plaintiff an additional allowance of five per cent upon the amount of the verdict, and also from an order entered in said…

Appeal by the defendant, James W. Brady, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of April, 1902, upon the report of a referee, directing a sale of the interest of said defendant in certain premises therein described.

<p> Contract of sale of merchandise —.when the vendee has an option to order an additional quantity. </p> <p>A contract of sale embraced in the following offer and acceptance: “ You can-enter our order for 200 to 300 tons of Ivanhoe at §10.75 for 1-X and §10.50 for 2-X, deliveries to be made within the next six months as wanted.” “ We beg to acknowledge receipt of your offer * * * and we advise you that we will accept same. We enter order accordingly for 200 to 800 tons of 1-X or 2-X Ivanhoe Pig Iron, at $10.75 for 1-X and §10.50 for 2-X, delivered f. o. b. cars, P. R. R. at York, Pa. Terms cash 30 days; delivery 25 tons of 1-X in November and balance as ordered within the next six months," obligates the vendor to deliver 200 tons in any event and also an additional 100 tons if such additional quantity is ordered by. the vendee at any time during the life of the contract.</p> <p>The option with respect to the additional 100 tons cannot be exercised by the vendor, but only by the vendee.</p>

<p>Appeal by the defendant, the Corn Exchange Bank, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 30th day of January, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of January, 1903, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>Unincorporated association—wKen a partnership— a judgment against one member on a contract made by the association — the came of action against all the members is merged in it.</p> <p>An unincorporated association, formed for pecuniary profit, is a partnership. Where an action brought against one of the members of such an association, upon a contract executed in the name of the association, results in a judgment against such member, the cause of action against all of the members is merged in such judgment.</p>

<p>Appeal by the defendant, Francis V. Greene, as police commissioner 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 3d day of June, 1903, granting the relator’s motion for a peremptory writ of mandamus.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p> <p>The plaintiffs are the owners in fee. of the premises known as the Everett House, located on the northwest corner of Seventeenth street and Fourth avenue, in the city of New York, which includes the-small plot shown on the diagram and hereafter called “ plot X.” Plaintiffs have been in possession of said real property since 1895. The plaintiffs allege that the defendants unjustly claim an estate, or interest or easement in “ plot X,” which plot is twenty feet long, facing on Seventeenth street, and ten feet deep, as shown on the following plot:</p> <p> </p> <p>The defendants claim that they have an easement in said plot by reason of certain conditions or covenants set forth in the deed thereof from William S. Moffat to Anson Gr. Phelps, dated September 1, 1853, the said deed conveying to the predecessor in title to the plaintiffs. The said conditions or covenants are as follows:</p> <p>“First. That the said party of the second part, his heirs or assigns, shall riot erect or suffer to be erected on the said premises or any part thereof, any nuisance or any establishment where any business or manufacture usually denominated á nuisance may be. carried on or conducted. Secondly. That the said party of the second part, his heirs or assigns, shall not erect or cause or suffer to-be erected on the said premises or any part thereof, any stable at a distance less than twenty-five feet from the dwelling house of the said party of the first part adjoining the said premises and on the west side thereof or at a distance less than twenty-five feet from any part of said dwelling house. Thirdly. That the said party of the second part, his heirs or assigns, shall not erect upon the said premises any other than a first-class dwelling house; that the front of such house or any part thereof, straight, semi-circular, oval or otherwise, shall not project or begin to project beyond the line or front of said d welling house of the said party of the first part before mentioned, at a distance less, than' ten feet easterly or southeasterly from the easterly or southeasterly line of said dwelling house of the said'party of the first part, and that such projection shall not extend more than 18 (eighteen) inches beyond the front of the dwelling house of the said party of the first- part within twenty feet of said house of said party of the first part. And, lastly, that the said party of the second part, his heirs and assigns, shall not dig the foundation of any dwelling house erected or to be erected by him, them or any of them on the said premises deeper than the foundation of the said dwelling house of the said party of the first part.”</p> <p>The plaintiffs claim that the said covenants are null and void and / of no effect. The defendants claim that the said covenants, reserving to William B. Moffat, their grantoi', the easements therein specified, were and still are operative to confer upon them the easements reserved in or over the said “ plot X.” The plaintiffs claim a right to build upon the said “ plot X ” the above-described portion of their premises, notwithstanding said covenants, and the defendants dispute said claim by reason of the said covenants. Bichard Arnold died seized in fee of the premises known- as the Century Building property, next west to plaintiffs’ property, the Everett House, and the defendants are trustees under his will, vested with title to said Century Building property. ■ Both parties derive title from William B. Moffat. In 1853 the property now covered by the Everett House was vacant, and at that time there was upon the property of the defendants a private dwelling, owned and occupied by said William B. Moffat, the front of which dwelling, exclusive of- areaways, was nine and three-quarters feet north of the building line of the north side of Seventeenth street. This is the dwelling house referred to in the deed from Moffat to Phelps above mentioned. At the time of making this deed the premises of both parties were in a residential neighborhood, which has now entirely changed and has become devoted exclusively to trade and business. In 1856 the Everett House was built as it now stands, has always been used for hotel purposes, and it w;as the first building erected upon that site. The front of the Everett House extends to the northern boundary of Seventeenth street, except at “ plot X.” In 1853 all the dwelling houses west of Moffat’s home on Broadway stood on the same line as Moffat’s house, but at the present time business buildings have replaced them and they are built up to the line of the street. In 1879 the defendants’ testator took down the Moffat building and erected the Century Building, which comes full up to the north line of the street and stands out even with the southern line of “ plot X.” When the Century Building was erected, a vertical row of windows was placed in each story, except on the ground floor directly over “ plot X,” and these windows have since remained there without objection on the part of the plaintiffs. The plaintiffs demand judgment that the defendants or any persons deriving title in any Way from them be forever barred from having any claim, lien, right or easement upon or over the said “ plot X,” while the defendants demand judgment that their easement over said plot be forever established.</p>

<p>Appeal by the'defendant, Charles C. Miller, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Infant—recovery against, in an action on a promissory note, for the reasonable value of necessaries — duty of the father or guardia/n to suppm't an infant — necessaries furnished on the credit of the father or guardians— praof required of one seeking to charge the infant—theory of an inf ant’s liability — admission in an infant’s answer.</p> <p>When the averments of a complaint, in an action brought against an infant and her general guardian upon a promissory note made by the infant and indorsed by the general guardian, and given in payment for necessaries furnished by ' the plaintiffs to the infant, are sufficiently broad to permit a recovery against ■ the infant, not upon the note, but for the reasonable value of the necessaries furnished to the latter, considered.</p> <p>The obligation to support, maintain and educate an infant rests upon the father of the infant when the father is financially able to discharge such obligation. , If the parents of the infant are dead the duty to support, maintain and educate the infant devolves upon the general guardian of the infant, and the amount expended by the general guardian for such purposes may be charged against the estate of the infant.</p> <p>Where necessaries are furnished to an infant upon the credit of the parent, or ' under contract with the parent or general guardian of such infant, no liability is established against the infant, even though the latter has a separate estate.</p> <p>A party seeking to charge an infant with liability for the reasonable value of necessaries furnished to such infant, must prove, as á part of his affirmative case, that the obligation to furnish, the infant with necessaries has not been discharged by the parent or general guardian of the infant.</p> <p>The theory upon which an infant is rendered liable for necessaries is that they have been furnished and were necessary, and that the parent has not the ability to pay therefor.</p> <p>Semble, that an admission Of the existence of a contract contained, in the answer interposed on behalf of an infant defendant in such an action, is not binding upon the infant.</p>

Appeal by the defendant, The Edison Electric Illuminating Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15 th day of January, 1903, upon the verdict of a jury for $1,008.30, which was thereafter reduced by the court to $872.30, and also from an order entered in said clerk’s office on the 13th day of February, 1903, denying the defendant’s motion for a new trial made…

<p>Submission of a controversy upon- an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p> <p>The plaintiff demands a decree for a specific performance of a contract by which she agreed to sell and convey to the defendant a parcel of land on, the southerly side of One Hundred and Third street, between Park and Lexington avenues, having a frontage of one hundred and forty-six feet and six inches, commencing one hundred and fifty-eight feet six inches easterly of Park avenue, in fee absolute, free from all incumbrances,, and by which the defendant agreed to purchase the same for the. consideration therein specified. The defendant refused to perform the contract upon the ' ground that the premises are burdened by restrictive clauses in deeds of adjacent premises and by an equitable easement in favor of adjacent premises, which prevent their being built upon within six feet of the street line. The premises in question are vacant lots, and have never been built upon. In 1865 William H. Gebhard, the plaintiff’s husband, acquired title to all the northerly half- of this block, except- fifty feet frontage next easterly of the premises in question, and he acquired title to this in 1886. In 1877 he conveyed to Charles Dundas all the frontage west of the premises in question, and t-he deed contained a restrictive covenant against buildings not of stone or brick with slate or metal roofs, within forty feet of the front of the lot, and against certain specified business uses ■ of the premises, and. provided that all buildings to be erected should be set back on a uniform line from the street. The purchaser erected eleven houses covering the entire plot, known as three-story high-stoop houses, on a uniform line set back a trifle over six feet from the street. In 1878 the plaintiff’s husband, on a foreclosure of the purchase-money mortgage, again acquired title to these premises, after the houses were erected thereon; and in 1883 he conveyed the same without any restrictive covenants to Charles Bailey, who by a similar deed, within a few days thereafter, reconveyed the same to him. On the 8th day of May, 1886, the plaintiffs husband conveyed one of these houses and lots having frontage of sixteen feet and lying sixty-four feet east of Park avenue, to Cecilia Hess, and the deed contained a restrictive covenant against the erection of any building other than a private residence, and that the front line of the building should remain as then established. At the time of making this conveyance the grantor owned all the other land in the -block fronting on One Hundred and Third street, except the fifty feet adjoining the premises in question in this litigation, and these he acquired on. the 27th day of May, 1886. In 1891 he conveyed all the lots fi'onting on One Hundred and Third street, between the premises in question and Lexington avenue, and this deed contained a restrictive covenant against the erection of any building thereon other than a Protestant charch or a private house, and against the erection of any building within six feet of One Hundred and Third street. A Protestant church was built upon these premises, which in the main set .back six feet from the street, but for the distance of about twenty-five feet next Lexington avenue, it extended to within three and one-half feet of the street line. In 1892 the plaintiffs husband, she joining with him in the deed, conveyed the premises in question in this litigation to Charles Bailey, who immediately reconveyed them to the plaintiff. The deed recited that the grantee, his heirs and assigns, covenanted with the plaintiff’s husband, his heirs and assigns, against the erection of any building other than private dwelling houses or single flats arranged to be occupied by one family on each floor, having a width of not more than eighteen feet six inches set back six feet from the street, and that no obstruction or building except necessary steps, platform or railing and stone or iron fences should be erected within this court yard space, and provided that “ this covenant shall run with the lands and be enforcible by the party of the first part, his heirs or assigns, against any person who shall hereafter own the said premises or any portion thereof.” The conveyance to plaintiff was made subject to the restrictions contained in the deed to Bailey. In 1895 plaintiff’s husband conveyed without restrictive covenants the ten remaining lots lying westerly of the premises in question. Pursuant to the contract under which these premises were sold and conveyed lie executed an agreement under his hand and seal to the effect that no building or structure other than dwellings to bet occupied by one family should be erected upon the' premises in question within two years succeeding the 12th day of February, 1896, and that the property should not during said time be used for any other purpose under penalty of his paying liquidated damages in the sum of $10,0.00. These were the only premises fronting on One Hundred and Third street which the plaintiff then owned in the block and he has not since acquired any other title. In the year 1896 plaintiff’s husband, under his hand and seal, executed and delivered to her a release, which has been duly recorded, releasing the premises in question from the restrictive covenants and it recites that the parties had mutually agreed to release the premises from the same. These are the only material facts bearing upon the questions presented.</p>

<p>Appeal by the plaintiff, William B. Gottlieb, from a judgment of the' Supreme Court, in favor of the defendant, entered in the office of the clerk of ‘the county of New York on the 21st day of April, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the relator, William Dickinson, 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 June, 1903, dismissing a writ of habeas corpus theretofore issued in the action and remanding the relator to the custody of the warden of the city prison.

Appeal by the defendant, William H. Maxwell, as city superintendent of schools in 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 loth, •day of July, 1903, granting the relator’s motion for a peremptory writ of mandamus requiring the defendant to place the name of the relator upon the list of persons eligible to be appointed as principals of public schools in…

<p>Appeal by the plaintiff, Edward Voss, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of' New York on the 30th day of January, 1903, upon the verdict of a jury rendered.by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st .day of January, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 13th day of February, 1903, denying the said defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Julius Leaux, from a judgment of the Supreme Court in favor of the defendant James Jacobs, entered in the office of the clerk of the county of New York on the 2d day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term as against the defendant James Jacobs.</p>

Appeal by the defendants, Denison P. Chesebro and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of March, 1903, upon,the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p>Certiorari issued out of the Supreme Court and attested on the 16th day of May, 1902, directed to Thomas Sturgis, as fire commissioner of the fire department of the city of Yew York, requiring him to Certify and return to the office of the clerk of the county of Yew York all and singular his proceedings had in relation to the removal of the relator from the position of fire marshal of the boroughs of Manhattan, Richmond and The Bronx.</p>

Appeal by the defendant, Waldemar Oaspary, doing business under the name of Benjamin & Oaspary, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of March, 1903, denying' the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Francis Y. Greene, as police commissioner 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 3d day of June, 1903, granting a peremptory writ of mandamus compelling the police commissioner to recognize the relator as a detective sergeant. . ’ - The statute under which the relator claimed the right to be recognized as a detective…

<p>Appeal by the defendant, William C. Greene, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of September, 1903, granting the plaintiff’s motion to vacate an order previously made for the examination before trial of one James Shirley as a witness on behalf of the defendant.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of February, 1903, upon the verdict of a jury for $650, and also from an order entered in, said clerk’s office on the 18th day of February, 1903, denying the defendant’s motion for a. new trial made upon the minutes.

Appeal by the plaintiffs, Henry Parish, individually and as executor, etc., of Daniel Parish, deceased, and others, and by the defendant, Susan Delafield Parish, from an order of the Supreme Court, “ made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of July, 1903,, in so far as said order directs that the closing of the title to certain property purchased at a partition sale shall be “ as of the date named in…

Appeal by the plaintiff, Helena Sommer, from two separate judgments of the Supreme Court in favor of the defendants, Frederick W. Sommer and Josephine Vogel, respectively, entered in the office of the clerk of the county of New York oii the 16th day of July, 1902, after a trial at the New York Special Term, dismissing the complaint upon the merits.

<p>Conversion of real into personal property -^.intention, how manifested. — what will does not do so.— limitations upon the power of the trustees of Columbia College to - take real property — who may question its right to do- so — English Statute of Mortmain, not in force in the colonies.</p> <p>, An intention on the part of a testator that his real estate shall be converted into personalty must, in order to be operative, appear plainly, distinctly and unequivocally. "</p> <p>Such intention may be manifested: Mint, by a positive direction to the executors or trustees to make the conversion; second, the intention may be ascertained from the necessity of a sale in order to carry out the general scheme of the testator; third, the conversion may be deemed to have been effected when .the purpose of the testator would fail without such conversion.</p> <p>The following clause contained in a will: “ I authorize and empower my said executors and trustees and the survivors or survivor of them, or their or his successors or successor, at any time, to sell, mortgage, lease or convey any portion of my real estate, whether owned by me severally or jointly; to make exchange of all or any portions thereof, and to unite in amicable partition thereof. Giving them full power to make and execute all lawful deeds or other assurances in the premises,” confers only a discretionary power of sale and does not operate to convert the testator’s real estate into personalty.</p> <p>The will of Stephen Whitney Phosnix, who died in November, 1881, the material provisions of which are set forth in the opinion, which devised and bequeathed to the trustees of Columbia College in the city of New York the testator’s residuary estate, both real and personal, after the termination of certain life estates therein, did not effect an equitable conversion of the residuary real estate into personalty.</p> <p>The power of the trustees of Columbia College to take the real estate devised to them under such will is not controlled by the royal charter granted to it October 31, 1754, construed according to the law as it then existed respecting the power of corporations to take and hold real property, but is controlled by chapter 85 of the Laws of 1810 which conferred new and enlarged powers on the institution and provided that it should have power “to take by purchase, gift, grant, devise or in any other manner, and to hold any real and personal estate whatsoever; provided always, the clear yearly value of the real estate to be so acquired shall not exceed the sum of twenty thousand dollars. * * * “ all the real and personal estate whatsoever and wheresoever, which were formerly vested in the Governors of the College of the Province of New York, in the City of New York in America, or in the Trustees of Columbia College, in the'City of New York, be and the same is hereby confirmed to and rested in the said Trustees of Columbia College in, the City of Mew York, and their successors forever.”</p> <p>In determining whether or not the power in question had been exhausted prior to the testator’s death, real property, which was owned by the college prior to the passage of the act of 1810 and real property acquired by the college under special legislative acts passed subsequent to the act of 1810, should be excluded from consideration.</p> <p>The right to question the power of the corporation to take the devise of the residuary real estate, upon the ground that the power derived under the quoted provision of the statute had been exhausted prior to the testator’s death, does not exist in the State of New York alone, but also in the testator’s heirs and those claiming under such heirs.</p> <p>Semble, that the English Statutes of Mortmain were not in force in the colony of New York at the time the royal .charter of 1754 was granted.</p>

Appeal by the defendant, Nathan E. Clark, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of September,, 1903, allowing the defendant Hobart D. Betts, as assignee for the benefit of creditors of the Armstrong & Bolton Company, to amend his answer.

Appeal by the plaintiff, Butler Brothers, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 27th day of June? 1902, upon the 'decision of the court, rendered after a trial at the New York Trial Term, the jury having been discharged, dismissing the complaint upon the merits.

Appeal by the petitioner, Mary I. Smith, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 2d day of February, 1903, as confirms the report of a referee dismissing objections filed by the petitioner to the respondent’s account.

Appeal by the defendant, The New Trinidad Lake Asphalt Company, Limited, 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 21st day of October, 1903, denying tlie defendant’s motion to vacate an order for the discovery and inspection of defendant’s books and accounts, and modifying such order for discovery.

Appeal by the defendant, Alfred Childs, from an order of the Court of General Sessions of the Peace in and for the city and county of New York, entered in the office of the clerk of said court on the 18th day of February, 1903, denying the defendant’s motion to resettle the case on appeal in the above-entitled action.

<p>Appeal by the defendants, The “ Old Guard ” of the City of New York and others, from a final order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1903, directing the issuance of a peremptory writ of mandamusalso frotii an order entered in said clerk’s office on the 14th day of April, 1903, amendatory of said first-mentioned order, and also from an order entered in said clerk’s office on the 9th day of April, 1903, denying, among other motions, the defendants’ motion to dismiss the proceedings herein.</p>

Appeal by the defendants, Robert L. Martin and another, from an order of the Court of General Sessions of the Peace in and for the county of New York, entered on the 13th day of October, 1903, denying the defendants’ motion to quash the indictment found against them in the above-entitled action.

<p>Evidence—letters written by a party to an action a/re not admissible in Ms favor — what stipulation does not aMtlwrize their admission—proof of a waiver of a breach of a contract is not competent under a general denial—what defenses a/re.</p> <p>A defendant is not entitled, under a stipulation that either party may read in evidence any portion of the printed case used on a former appeal, to introduce in evidence letters written by him containing declarations in his own favor, nor is he entitled to introduce evidence tending to contradict an unqualified admission contained in the answer.</p> <p>In an action to recover damages for the breach of a contract, the defense of a waiver of the breach by the plaintiff is not available under a general denial, but must be specially pleaded.</p> <p>The defenses which are, and the defenses which are not, available under a general denial, considered.</p>

<p>Appeal by the defendant, the Fidelity and Deposit Company of Maryland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of May, 1903, upon'the decision of the court rendered after a trial at the New York Trial Term, a-jury having been waived.</p>

<p>Evidence—a physician called to testify by his patient may beimpeachedby a certificate given by him — where he testifies positively as to his patients identity and that the certificate did not relate to her case,- proof as to his business methods is incompetent-^whai testimony-of a physician'is not incompetent under section 834 of the Code of Civil Procedure—effect of an objection that it is " incompetent, irrelevant and immaterial"—a druggist may testify that he filled a certain prescription — charge as to the inference to be drawn from an objection by the patient to her physician’s testimony—charge as to the physician’s incapacity to testify.</p> <p>In an action brought to recovér damages for personal injuries sustained by the plaintiff, the defendant contended that the injuries suffered by the plaintiff were not the result of any occurrence for which the defendant was responsible, but were the result of a disease with which the plaintiff was afflicted.</p> <p>It was not controverted But that some person hearing a name, in most respects similar to that of the plaintiff, had Been afflicted with the disease in question and had been treated by physicians for that disease.</p> <p>The plaintiff, whose name was Annie Deutschmann, claimed that the person thus afflicted with the disease was not herself, but one “Anna ” Deutschmann.</p> <p>One Dr. Kolb, a physician who had attended the plaintiff, was called by her and testified, the plaintiff having waived the question of privilege, concerning the plaintiff’s physical condition,'her ailments- and the causes thereof. Upon cross’ examination the defendant exhibited to Dr. Kolb a certificate which he admitted to be in his handwriting, in which he certified that ‘ ‘ Mrs. Anna Deutschmann ” was suffering from the disease in question... The plaintiff’s attorney-objected to the admission of the certificate in evidence upon the ground that it was incompetent, irrelevant and immaterial, but stated that he did not object to its admission if Dr. Kolb would say that it referred to the plaintiff. The court overruled the objection and admitted the certificate in evidence.</p> <p>Upon his redirect examination Dr. Kolb testified that the statement did not refer-to the plaintiff, that he did not know to whom it did refer, that he could not remember the circumstances under which he made it, but that he knew that, the plaintiff never had the disease in question.</p> <p>Other evidence was given during the course of the trial which tended to identify the -plaintiff as the same person who had been treated for the disease in question.</p> <p>Held, that the certificate was competent in evidence for the purpose of impeaching-the doctor’s credibility;</p> <p>That Dr. Kolb having claimed to have absolute knowledge as to whether or not. the certificate concerned the plaintiff, the latter was not entitled, in order to explain the giving, of the certificate by Dr. Kolb, to prove that he did not keep, records of cash patients and that men and women called to consult him and received prescriptions of which he made no record, and that persons suffering from the disease in question frequently gave fictitious names;</p> <p>That testimony given by á physician, that he was acquainted with the plaintiff and had attended her professionally at his office and in her house for a certain period, was hot incompetent under section 834 of the Code of Civil Procedure, as the testimony did not disclose any information which the plaintiff communicated to the witness in his professional capacity or which was necessary to enable him to act in that capacity.</p> <p>That, even if it was improper under section 834 of- the Code of Civil Procedure to permit the last-mentioned physician to identify, as being in his handwriting, papers, which, it subsequently appeared, were prescriptions which he had delivered to the plaintiff, the plaintiff having objected to such testimony solely on the ground that it was incompetent, irrelevant and immaterial, the reception of the testimony did not constitute error;</p> <p>That the prohibition contained in section 834 of the Code of Civil Procedure does-not prevent a druggist from identifying prescriptions filled by him and the-person for whom he had filled them;</p> <p>That the court properly refused to charge that no inference unfavorable to the-plaintiff or to her cause of action could be drawn because of her failure- to-waive her privilege under section 834 of the Code of Civil Procedure;</p> <p>That a request to charge, “Under the law, communications from, a patient to a physician are privileged and cannot be given in testimony, except that' the privilege be waived,” was too broad, as the statute only prohibits the physician from disclosing confidential information acquired in attending a patient, where the relation of patient and physician is established and when the information was necessary to enable him to act in that capacity.</p>

<p> Amendment of an answer—where the action is by an attorney against his client, it should be allowed, on terms, even after the case has been peremptorily set down for trial on a day certain. </p> <p>A client of an attorney having incurred an obligation amounting to $2,006.75 to the attorney, another client of the attorney entered into a contract with the attorney, by which he agreed to pay the debt. The attorney assigned the contract to his wife, and. she brought an action to recover thereon. The case was placed upon the calendar and, after the trial thereof had been postponed a number of times at the instance of the defendant, it was peremptorily set-down for trial on a certain date. The defendant then moved for leave to serve an amended answer.</p> <p>Held, in view of the fact that, the case involved a transaction in which an attorney had secured a substantial benefit from a client, that the motion for leave " to serve the amended answer should not have been denied upon the ground of laches, but should have been granted upon terms which would be sufficient to indemnify the plaintiff for her costs and expanses.</p> <p>.Van Brunt, P. J., dissented.</p>

Appeal by the defendants, Joseph Fahys 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 New York on the 12th day of Hay, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 27th day of May, 1903, denying the said defendants’ motion for a new trial made upon the minutes.

<p>Trust—what dements are essential — what notes taken by trustees have an adequate consideration — efficiency of a provision as to their enforcement — tile trust is not rendered invalid by the reservation of a power of revocation— nor by a recital that the beneficiaries acquired their rights only through the settlor's bounty — what trust is not a testamentary disposition.</p> <p>Joseph H. Brown, who did business under the name of Brown, Draper & Co., of which firm he was the sole surviving partner, had, in addition to his capital account With the firm, a loan account therewith. In 1893 Brown caused a credit of $20,000 to be transferred from his loan account to the credit of his niece, Marion Smith. Interest was added to this account from time to time and moneys received by the said Marion.Smith were charged against it.</p> <p>December 81, 1896, when the balace in favor of Marion Smith was $21,620.37, Brown drew a check to the order of said Marion Smith for $10,000, and, at his instance, John Spohr, his bookkeeper, accompanied her to the bank, where the money was drawn and turned over to Spohr, who deposited it to the credit of the firm. This check was-charged to her account and a new account was then opened on the firm books in the names of John Spohr and A.-B. Potterton, trustees, which was credited with a cash item of $10,000.</p> <p>■ January 7, 1897, Brown drew another check of $10,000 to the order of Marion Smith and the same proceedings had with respect to the former check were repeated, and the trustees were credited with the second $10,000 thé following day. The amount of this check was also charged to Marion Smith and the balance remaining to her credit in such account was then transferred to Brown’s loan account, thus closing the Original account.</p> <p>Drown also executed a deed of trust, dated the day the first check was delivered to Marion Smith, which recited a present delivery of $20,000 to Spohr and Potterton in trust, among other things, for the following purposes: (1) To lend the same to said firm upon, demand notes of the firm, hearing interest at five per cent, payable quarterly; (2) to demand payment of the notes at the death of the settlor, or sooner, in their discretion, and to loan the proceeds' upon bonds .secured by mortgages on improved and unincumbered property, as therein provided; (3) to pay the interest in quarterly installments to said Marion Smith during her life, and (4), if he survived her, to wind up the trust .and pay the money over to him, and if she survived him, then on her death to pay the income to his nephew, J. Granville Smith, during life, and then to pay the principal to one of the settlor’s sons, provided, however, that if such son was not then living the principal should go to two of the settlor’s daughters; or the survivor of them, and if neither should then be living, to another son, and if he were not then living, then to the Chapin Home for the Aged and Infirm of the City of New York. The instrument also provided that the settlor should have full power to revoke or change the terms of the trust, and that the beneficiaries were to receive the benefits of it as proceeding solely from his bounty.</p> <p>The deed of trust was delivered to the trustees and a declaration of trust was executed by them to Brown.</p> <p>October 4, 1901, Brown executed and delivered to the trustees a formal modification of the deed of trust, providing (1) that the interest should be paid to himself during life, and if Marion Smith should predecease him, the trust should cease and the subject thereof be transferred to him; (2) that if she survived him the income should be paid to her for life and upon her death the trust should cease and the principal be paid to her issue, or, if she left no issue, to said Chapin Home, and in other respects he reaffirmed the trusts, but the right ta revoke or modify it was again expressly reserved. The trustees at this time signed and delivered to the settlor a corresponding declaration accepting the trust. ' -</p> <p>Subsequent to the creation of the Marion Smith trust Brown created eight other trusts in substantially the same manner and on substantially the same terms as the Marion Smith trust.</p> <p>January'!, 1901, Brown admitted two new partners to his firm, and the firm, as thus constituted, acknowledged its liability upon the notes given to the respective trustees. Brown died without having revoked the trust, leaving a will by which he disinherited his family.</p> <p>In an action brought by his infant son to procure an adjudication that the trusts were invalid, in which action it appeared that no rights of creditors were involved, it was</p> <p>Held, that there existed, with respect to each of the trusts, the four essential elements of a valid trust of personal property, viz;: (1) A designated beneficiary; (2) a designated trustee, who must not be the beneficiary; (3) a. fund or other property sufficiently designated or identified to enable title thereto to pass to the trustee, and (4) the actual delivery of the fund or other property or of a legal assignment thereto to the trustee with the-intention of passing legal title thereto to him as trustee;</p> <p>That the firm notes were based upon a full and adequate consideration, and that the legal title thereto was in the trustees, and that, if payment thereof was resisted, the trustees could enforce them;</p> <p>That neither the reservation of the power of revocation and of modification, contained in the deeds of trust, nor the recital that the beneficiaries received the benefits of the trusts solely through the bounty of the settlor, rendered the trusts illegal;</p> <p>That the presence in the deeds of trust, other than ifi the case of Marion Smith, of the following clause: “And upon the decease of the said Joseph H. Brown (or before his decease, should we in our discretion see fit so to do) to demand payment of said note or notes,” which deeds were signed by Brown alone, did not deprive the trustees of the power, in their discretion, and without consulting Brown’s wishes and even against- his protest, to enforce the payment of the notes at any time, but that if they did attempt, to collect the notes against his. •will, he could revoke such trusts; ,</p> <p>That the trusts were not invalid on the ground that they constituted a testamentary disposition of Brown’s property in violation of the Statute of Wills.</p>

Appeal by the defendant, Thomas J. Sharkey, from a judgment ■of the Supreme Court in favor of the plaintiff, entered on the 24th day of December, 1902, upon the verdict of a jury, rendered after a trial at a Criminal Branch of the New York Trial Term, convicting the defendant of the crime of manslaughter in the second degree.

Appeal by the defendant, John R. Butler, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 8th day •of October, 1903, granting the plaintiff’s application to place the ■cause upon the calendar for the trial of preferred causes.

Appeal by the defendant, Mary A. FitzGerald, 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 llth day of May, 1903, denying the defendant’s motion that the complaint be stricken out and dismissed, or the case stricken from the calendar and the trial of the issues stayed on account of plaintiffs failure to comply with a previous order for a bill of particulars.

Appeal by the defendant, the Third Avenue Railroad Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1903, denying the defendant’s motion to compel a set-off of mutual judgments, except that portion thereof which stays the New York county sheriff from paying over to the plaintiff a certain check.

Cross-appeals by the plaintiff, The West Side Electric Company, and by the defendant, the Consolidated Telegraph and Electrical Subway Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county, of New York on the 17th day of July, 1903, as amended by an order entered in said clerk’s office on the 22d day of August, 1903.

Appeal by the defendant, Ambrose S. Murray, Jr., 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 December, 1902, upon the verdict óf a jury for $1,800, and also from an order entered in said clerk’s office on the 4th day of- June, 1903, denying the defendants’ motion for a new trial made upon the minutes. - .

<p>Appeal by the petitioner, Jasper W. Travis, from an order of the Supreme Court, made at th e Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 2d day of May, 1903, denying the petitioner’s motion for a peremptory Writ of mandamus.</p>

Appeal by the defendant, the Interurban Street Railway Company, 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 15th day of July, 1903, denying the defendant’s motion for a bill of particulars.

<p>Option, to purchase land—a contract based on, the statement that a party thereto had an option to purchase land — it will not be enforced where he had only authority to sell it—his right to compensation fot' services in effecting a conveyonce of the land to the other parriy to the contract.</p> <p>An option for the purchase of land implies- an agreement by the' owner of the land to give the holder of the option the exclusive right to .purchase the property at a fixed price within a time certain.;</p> <p>A written authorization from the owner to sell the land at a certain price per acre does not constitute an option.</p> <p>Peter 3?. McLaurin represented to a corporation which desired to purchase certain lands that he had an option on such lands. In reliance upon such representation, the corporation 'entered into a contract to pay McLaurin certain amounts if he would turn over such option to the corporation. The corporatiofi subsequently acquired the lands through McLaurin’s efforts. McLaurin did not, in fact, have any option for the purchase of the lands, but had simply written authority from the owners thereof to effect a sale at a certain price per acre. It did nc>t appear that similar authority had not been given to others or that the owners had restricted their power to negotiate á sale.of the land themselves. '</p> <p>■ Held, that McLaurin could not enforce his contract with the corporation, as the alleged option which constituted the consideration for the contract did not exist;</p> <p>That, having acquired the lands through the result of McLaurin’s services, the corporation was obligated to pay him the fair and reasonable value of such services.</p> <p>Hooker, J., dissented.</p>

Appeal by the plaintiff, Antonio Venuta, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 27th day of January, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of December, 1902, denying the plaintiff’s motion for a new trial made upon the minutes. ,

<p> Defense of the pendency of another action for the same cause—not avoided by proof that the complaint therein is demurrable —complaint in the former action proved by a copy thereof. </p> <p>In an action to recover damages for the negligent act of the defendant, a steam railroad company, in the State of Connecticut resulting in the death of the plaintiff's intestate the defendant interposed the defense that another action had already been brought and was pending in the State of New York for the same cause. In that action the defendant had set up a defense on the merits.</p> <p>To avoid the defense based on the pendency of the other action the plaintiff produced a statute of the State of Connecticut providing that no suit on account of the death of any person caused by negligence shall be maintained against a steam railroad company unless Written notice of a claim therefor shall have been given to the company within four months, and contended that as no such notice was alleged to have been given by the complaint in such former action such complaint was radically defective and demurrable.</p> <p>Meld, that, the defendant not having raised the objection of want of notice in the former action, the defense based upon the pendency of such former action was properly sustained;</p> <p>That the pendency of the other action might be established by reading in evidence a copy of the complaint shown to be the same as that served upon the defendant’s attorney, and that it was not necessary to produce the original complaint.</p>

Appeal by John H. Shults, from an order of the Supreme Court, made at the Westchester Special Terpi and entered in the office of the clerk of the county of Westchester on the' 11th day pf July, 1903, denying his motion to be relieved from the purchase of certain premises at a partition sale and directing him to complete 'the same.

<p>Trial of a member of the JYew York police fcrrce—dismissal by the police commissioner., after atrial before a deputy, will be sustained—recommendation of dismissal is equivalent to a finding of guilt.</p> <p>The dismissal of a member of the police force of the city of New York, who was tried before a deputy police commissioner, the final order of dismissal having been made by the police commissioner, sustained.</p> <p>Semble, that a recommendation that the accused officer be dismissed, made by the deputy police commissioner who conducted such trial, at the close of such trial and after a consideration of all the proof taken, is equivalent to a finding that the relator was guilty of the charges preferred against him.</p>

Appeal by the defendants, Agnes Gibbons, as administratrix, etc., of Mary Gibbons, deceased, and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 7th day of October, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the distribution of a certain fund brought into the custody of the court.

Appeal by the defendant, Samuel Berger, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered on the 24th day of July, 1903, upon the decision of the court, after a trial before the court without a jury.

<p>Appeal by the plaintiffs, James B. Laroe and another, 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 27th day of January, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 15th day of January, 1903, and entered in said clerk’s office, denying the plaintiffs’ motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Francis Vinton Greene, as police commissioner 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 Kings on the 3d day of June, 1903, granting a peremptory writ of mandamus requiring the defendant to retire the relator from service on the police force and to place him upon the police pension roll.

Appeal by the plaintiff, Thomas J. Outerbridge, 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 2d day of July, 1903, as resettled by an order entered in said clerk’s office on the 10th day of July, 1903, vacating an attachment theretofore granted in the action, against the property of the defendants.

<p>Appeal by the plaintiff, Elizabeth Dunleavey, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Nassau on the 18th day of October, 1902, upon the decision of the court, rendered after a trial at the Nassau Special Term, dismissing the complaint upon the merits.</p>

• Appeal by the défendant, Samuel Spitz, from a judgment of the Municipal Court of the city of New York, borough of The Bronx, in favor of the plaintiff, and also from an order denying the defend- ■ ant’s, motion for a new trial made upon the minutes.

Appeal by the plaintiff, Clarence Hubbs, from a judgment of the County Court of Queens county in favor of the. defendants, entered in the office of the clerk of the county of Queens on the 28th day of February, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes. .

Appeal by the defendants, Julie Bossard and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 8th day of July, 1903, denying the said defendants’ motion for a commission to examine witnesses in the Republic of Switzerland.