Volume 88 — New York Appellate Division Reports

Appeal by the plaintiff, Benoit Vasserman, 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 J une, 1903, vacating an order of arrest theretofore entered in this action.

Appeal by the defendant, Joseph Taylor, from that portion of a judgment of the County Court of Suffolk county, entered in the office of the clerk of the county of Suffolk on the 2d day of January, 1903, upon an order of said County Court bearing date the 7th day of April, 1902, and entered in said clerk’s office, reversing :a judgment of a justice of the peace in favor of the plaintiff, as,. determines that the entry of judgment by said justice was an error in fact and…

Appeal by the petitioner, Patrick W. Cullinan, as State Commissioner of Excise, from an order of the Supreme Court, madeat the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 22d day of April, 1903, denying the petitioner’s motion to revoke and cancel liquor tax certificate No. 21,917, issued to John Niederstein, and also- from a judgment for costs in favor of the respondent, entered in said clerk’s office on the 2d day of…

Appeal by the plaintiff, Sarah F. Beers, 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 3d day of March, 1903j upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, James Gordon Bennett, from a judg- - ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 26th day of January, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Cboss-appeals by John A. Stewart and others, as trustees under the last will and testament of John B. Trevor, deceased., and others, from a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 24th day of May, 1902,. settling an intermediate accounting of the above-named trustees.</p>

<p>Appeal by Martin R. Bodkin and John Griffin, executors of and trustees under. the last will and testament of Dominick G. Bodkin, deceased, from three orders of the Surrogate’s Court of the -county of Kings,.entered in said Surrogate’s Court and bearing date respectively the 15th day of June, 1903, the 26th day of June, 1903, and the 27th day of July, 1903.</p>

Appeal by the defendants, Cornelia J. Austin and another, as executors, etc., of Daniel Horton, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester in February, 1903, upon the decision of the court rendered after a trial at the Westchester Trial Term, a jury having been waived.

<p>Landlord and tenant —foreclosure of a mortgage on the demised premises — the covenant of quiet enjoyment only goes to the possession — the tenant must pay the rent until the “production of the referee's deed.” '</p> <p>Where premises covered by a mortgage are leased, the relations of the landlord and tenant are not affected by an action to foreclose such mortgage, until, at the earliest, the foreclosure sale and the delivery of the referee’s deed to the purchaser.</p> <p>The landlord is entitled to the rents accruing down to the period when the purchaser becomes entitled, under the decree of sale, to the possession of the premises, which, if the judgment contains the provision required by rule 61 of the General Rules of Practice, will be when the purchaser produces' the referee’s deed.</p> <p>Mere apprehension of eviction, created in the tenant’s inind by the judgment of foreclosure, is not legally sufficient to justify him in leaving the demised premises and in claiming damages for the breach of a covenant of quiet enjoyment contained in his lease. . .</p> <p>The covenant of quiet enjoyment goes only to the possession and not to the title of the premises, and, in order that the tenant shall recover damages for the breach of such covenant, he must show an eviction or an actual ouster by a paramount lawful title.</p> <p>Until the purchaser at a mortgage foreclosure sale produces the referee’s deed, or, at least, until the deed is delivered, no paramount title can be asserted against the tenant or be recognized by him.</p> <p>In the absence of proof to the contrary, it will be assumed that the judgment of foreclosure and sale contained the direction required by rule 61 of the General Rules of Practice, viz., “ that the purchaser at such sale be let into possession of the premises on production of the deed.”</p>

<p>Evidence — objection, made after a copy of an original paper has been admitted in. evidence, that it has not been proved to be a copy, not sustained.</p> <p>"Where a defendant, who has refused to produce an original document in his possession, objects to the introduction in evidence of an alleged copy thereof solely upon the ground that the document was made in a different trans-. action than the one then in question, and the court overrules the objection and admits the alleged copy in evidence, the subsequent refusal of the court to strike out . the alleged copy on the ground that it had not been proved to be a copy does not constitute error.</p>

Appeal by the petitioner, Edmund C. Viemeister, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clérk of the county of Kings on the 14th day of July, 1902, denying the petitioner’s motion for a-peremptory writ of mandamus.

Appeal by Franklin B. Hunt, from a decree of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s. Court on the 5th day of February, 1903, settling the accounts of Richard L. Hunt, as sole surviving executor of William L. Hunt, deceased.

<p>Appeal by the plaintiff, Winifred Quinn, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 30th day of June, 1903, changing the place of trial of the action' from the county of Westchester to the county of Kings.</p>

Certiorari issuéd out of the Supreme Court and attested on -the 27th day of December, 1902, directed to John H. Partridge, police commissioner of the city of New York, requiring him to certify and' return to‘the'office of the clerk of the county of Kings, all arid singular Ms- proceedings had in relation-to the removalof the relator - from the office of patrolman in the police department- of said city.

<p>Sale of chattels — acceptance of part and rejection of the remainder — proof of an Offer to return such remainder — measure Of damages.</p> <p>The acceptance by a person, who has purchased and paid for a large number of-chattels, of a portion of such chattels does not preclude him from rejecting the ■ remainder of the chattels on the ground that they do not conform to the require men'ts of the contract and from recovering damages from the vendor for a breach thereof. • ,</p> <p>Evidence that, shortly after the delivery to the vendee of the chattels in question, the .latter wrote several letters of rejection to the vendor with the statement that the chattels were held at the vendor’s risk and subject to his order, is sufficient to establish an offer to return the chattels.</p> <p>In such a case the measure of damages is the contract price, agreed upon between the parties, of the rejected chattels.</p>

Appeal, in each of the above-entitled actions, by the defend? nt, The City of New York, from a judgment of- the Municipal Court of 'the city of New York, borough of' Brooklyn, in favor of the plaintiff in each action, entered on the day of March,T903, and Also from an order, in each action, entered in the office of the clerk ■of said- court on the day of March, 19.03, denying the defendant’s motion for á new trial made upon 'the minutes.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Dutchess on the 23d day of September, 1902, upon the decision of the court, rendered after a trial at the Dutchess County Special Term before the court without a jury, dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, The American Bridge Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 10th day of January, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the loth day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal "by the plaintiff, Peter B. Hackett, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Nassau on the 5th day of August,. 1902, upon the dimissal of the complaint "by direction, of the court after a trial at the Nassau Trial Term, the verdict of a jury theretofore rendered in favor of the plaintiff having been set aside, and also from an order entered in said clerk’s office nunc pro tunc as of the 19th day of February, 1902, granting the defendant’s motion to-set aside the verdict and for a new trial.</p>

Appeal by the defendant, George Herrmann, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Westchester on the 2d day of July, 1903, granting the plaintiff an additional counsel fee, and also from an order entered in said clerk’s office on the 2d day of July, 1903, denying the defendant’s motion to vacate an order theretofore entered in the' action granting the plaintiff alimony and counsel fee.

<p>Appeal by the plaintiff, James J. Sangunitto, Senior, as administrator, etc., of James J. Sangunitto, Junior, deceased, from a judgment of the Supreme Court in favor of the defendant Annie Howell Goldey, entered in the office of the clerk of the county of Kings on the 6th day of March, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s -complaint upon the merits as against said defendant.</p>

<p>Commissions of a real estate agent — when earned.</p> <p>In. the absence of an express agreement to the contrary, a real estate broker ■employed to effect an exchange of real estate is entitled to his commissions, where, through his procurement, a contract for the exchange of properties has been agreed upon and entered into between his customer and the person with whom the exchange was to be effected, notwithstanding the fact that one of the parties is unable to fulfill the contract.</p>

<p>Assignment of a mortgage the record of the assignment is not notice thereof to the mortgagor — what is notice thereof—the fact that the mortgagee is not in possession of the bond and mortgage is not notice —principle that where one of two innocent persons must suffer from the acts of a third, eta., applied.</p> <p>A mortgagor, even after the recording of an assignment of the mortgage, is protected in making payments to the mortgag^Luntil he receives notice of the assignment or of facts sufficient to put him on inquiry as to the continuance of the mortgagee’s title. .If he receives notice of facts which would enable him, if he made the requisite inquiry, to ascertain the truth, then he is bound to make such inquiry, and if he omits to do so, he is chargeable with bad faith and is not protected in thereafter making payments to the mortgagee.</p> <p>In the absence of such notice, the fact that the mortgage was not in the possession of the mortgagee at the time when the payments were made, does not affect the validity of the payments.</p> <p>In the present case it appeared that on September 6,1892, the plaintiff purchased a number of lots of the defendant investment company, giving in part payment therefor a first and a second mortgage; that on September 7, 1892, the defendant investment company assigned the second mortgage to the defendant trust company, and that on September 10, 1892, the deed, the two mortgages and the assignment of the second mortgage were recorded.</p> <p>November 1, 1892, the plaintiff paid off the first mortgage which had been retained by the investment company and obtained a satisfaction piece thereof. The plaintiff continued to make payments upon the second mortgage at the office of the investment company until, at the end of five years, he had paid the ( -entire amount thereof. He received receipts signed by the secretary and cashier of the investment company for the payments- so made, but was not given a satisfaction piece of the mortgage, nor did he receive back such bond and mortgage.</p> <p>All the payments made by the plaintiff upon the first and second mortgages were made' to the secretary and cashier of the investment company, who concededly had authority to accept payments made on account of the bond and mortgage held by the investment company. It was subsequently discovered that such secretary and cashier was a defaulter and that he did not turn over to the defendant trust company the payments made on the second mortgage.</p> <p>The only testimony tending to show that the plaintiff had notice- of the assignment of the mortgage or of facts tending to place him upon inquiry was that the president of the investment company told the plaintiff at a dinner that the investment company assigned its mortgages.</p> <p>Jleld, that the statement of the president of the investment company was insufficient to put the plaintiff upon inquiry as to the ownership of the second mortgage and that the investment company owed the plaintiff the duty of discharging the second mortgage;</p> <p>That the investment company having placed it in the power of its secretary and cashier to mislead the plaintiff the case was an appropriate one for the application of the rule that where one of two innocent persons must suffer from the •act of a third person he should sustain the loss who has enabled the third -person to do the injury.</p>

<p>Bill of sale of chattels-—supplemental contract, executed the same day, for further transfer containing a covenant by vendor not to engage in like business — it is an, independent covenant — its breach gives an independent cause of action or a counterclaim—it is not a defense to the enforcement of the bill of sale — oral evidence to explain a writing —practical construction — contract of employment made subsequent to the MU of sale.</p> <p>The firm of M. B. Diepenbrock & Go., on October 30, 1900, executed to D. H. McBride & Co., a corporation, a bill of sale, providing that, in consideration of the sum of $3,800, of which $75 had been paid, the firm sold to the corporation “all the goods, wares, merchandise, fixtures, supplies, machinery, etc., which appear in the annexed schedule.” The schedule contained a number of items ranging from a few cents to over $100, aggregating exactly $3,800.</p> <p>Subsequently, and on the same day, the parties entered into a further agreement, reciting the making of the hill of sale and the intention of the firm to- convey, and of the corporation- to acquire, all the partnership property including the good will of the business, with the exception of the book accounts.</p> <p>It also recited, “ Whereas, the said parties of the first part and said parties of the second part desire to set forth more fully the manner in which said consideration of Thirty-eight.hundred dollars shall he paid as well as the conditions of such payments.</p> <p>“Noto, therefore, in consideration of the sum of Thirty-eight hundred ($3,800.00) Dollars lawful money of the United States of which seventy-five dollars are to them in hand paid at or before the ensealing or delivery of these presents; the balance to he paid in manner and form hereinafter set forth and for other good and valuable considerations the receipt of which is hereby acknowledged, the parties of the first part have bargained and sold and by these presents do grant and convey unto the said parties of the second part, their executors, administrators and. assigns, all the goods, wares, merchandise, supplies, machinery, fixtures, etc., set forth in the schedule hereinbefore mentioned hereby confirming the said hill of sale and including it in and making it a part, of this agreement, as well as all other property of the said parties of the first part except the book accounts. And the said parties of the first part further transfer, grant and convey to the said parties of the second part all the business of said copartnership as well as the good will of the same, and further agree that neither they, the parties of the first part, nor either of them, shall hereafter, at any time within five years from the date of this agreement, carry on or conduct in the City and State of New York, or in the United States, a similar business or manufacture, deal in or sell church goods, wares, merchandise or supplies.”</p> <p>The contract, after acknowledging the receipt of the $75, provided that the balance of the $3,800. should he paid in, monthly installments, “ equal to the amounts realized from the sale of the articles covered by the said bill of sale • during the current month.”</p> <p>The goods mentioned in the schedule annexed to the bill of sale were delivered to the corporation, which disposed of all, or a considerable portion, of them. The day following the execution of the instruments, M. B. Diepenbroek, one of the members of the firm, entered the employ of the corporation. Subsequently, however, he left such employ, aud, in violation of the covenant contained in the contract, engaged in a similar business.</p> <p>In an action brought by an assignee of the firm against the corporation to recover installments alleged to be due under the contract, it was</p> <p>Held, that the §3,800 mentioned in the bill of sale constituted the consideration for the goods mentioned in the schedule attached thereto;</p> <p>That the phrase “and for other good and valuable considerations, the receipt of which is hereby acknowledged," contained in the supplemental agreement, constituted the consideration for the transfer of the property not covered by the bill of sale and designated in the supplemental agreement as “the other property of the said parties of the first part,” as well as the consideration for the covenant that the parties of the first part would not engage in the manufacture and sale of similar goods during an interval of five years;</p> <p>That such last-mentioned covenant was an independent covenant, the performance of which by the members of the firm was not a condition precedent to their right to receive payment for the goods mentioned in the schedule annexed to the bill of sale;</p> <p>That the corporation’s remedy for a breach of such covenant was to set up, in the action to recover the unpaid portion of the §3,800, the damages resulting from such breach, or to maintain an independent action against the partners to recover such damages;</p> <p>That the provision in the contract that the unpaid portion of the §3,800 should be paid in monthly installments equal to the amounts realized from the sale of the articles covered by the said bill of sale during the current month, was not ambiguous; that it contemplated the placing of the receipts from the sales of the articles covered by the bill of sale in a fund, for the payment of the indebted'ness in monthly installments, and that it was error for the court to allow testimony that one of the partners had construed such provision to mean that the payments should be made upon the basis, not of the amount realized upon the sale of the articles covered by the bill of sale, but upon the purchase price of such articles, leaving the profits to the use of the defendant;</p> <p>That evidence of a practical construction placed upon a contract by the acts of the parties is not admissible where the language of a contract is unambiguous;</p> <p>(Per Goodrich, P. J. and Woodward, J.) That the court erred in permitting the defendant to introduce in evidence a contract of employment, made between one of the partners and the corporation, the day succeeding the making of the bill of sale.</p>

Hearing upon the return of an order to show cause, issued out of the Appellate Division, second judicial department, directing Theodore H. Silkman, surrogate of the county of Westchester, to show cause why an order should not be made suspending him from the practice of the law during the continuance of his term of office as surrogate.

<p>Change of venue — two or more residences as distinguished from a domicile.</p> <p>A person inay have two or more residences as distinguished from a domicile.</p> <p>If -the plaintiff in an action has at the time of the commencement thereof an actual residence or a-domicile in the county in which the venue is laid, the action is properly brought in that county, although the plaintiff may also have a residence" elsewhere. •</p>

<p>Appeal by the plaintiff, Samuel Vykess, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 24th day of October, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on the 24th day of October, 1902, directing the dismissal of the complaint.</p> <p>Plaintiff was employed as an extra man in the mills of the defendant company, which is engaged in the manufacture of paper. Plaintiff, who had never before been engaged in this particular part of the mill, was directed by the night foreman to go into what was known as the “ drainer ” and shovel pulp. This drainer and its use may be described briefly as follows : It is about twenty-six feet long, eight feet wide, and ten feet one inch deep, constructed of brick walls. It is provided with a false perforated bottom, two inches above the solid bottom, to allow the water to drain out. This drainer is filled with the pulp in liquid form from a pipe overhead. The water drains away, the pulp settles and the drainer is again filled. It is then allowed to stand for twenty-four hours, by which time it settles considerably. At the front end of the drainer, about two feet from the bottom, is a water-tight door, two feet six inches wide and three feet six inches high. After the pulp is drained this door is opened and the men commence to remove the stock,, shoveling it out and placing it in a moving conveyer. . As soon as there is sufficient pulp removed the men enter the' drainer through the door and work thereafter from the inside, shoveling the pulp through the door into the conveyer. The interior of the drainer is lighted by electricity.</p> <p>The plaintiff, in company with one G-uynup, were inside the drainer at the time of the accident engaged in this shoveling process.. They had removed all the pulp near the door, while at the rear of the drainer there still remained a mass of pulp from eight to ten feet high and from three to five feet thick. While the plaintiff was engaged in shoveling this mass of pulp fell upon him, causing the injuriés, to recover damages for which he has brought "this action. There had been no instructions given him as to the danger of this mass falling. Upon the trial, after hearing all the evidence, the trial court directed a dismissal of the complaint, and from the judgment entered upon this direction this appeal is taken. Further facts appear in the opinion.</p>

Appeal by the defendant, the Hudson Valley 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 Washington on the 6th day of March, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 27th day of February, 1903, denying the defendant’s motion for a .new trial made upon the minutes. .

Appeal by the defendant, Nora Madigan, from an order of the Supreme Court, made at the Chemung Special Term and.entered in the office of the clerk of the county of Chemung on the 26th day •of June, 1903, denying the defendant’s motion to require the plaintiffs to give security for costs.

<p>Appeal by Mary Mahoney, as administratrix, etc., of Patrick Mahoney, deceased, from an order of the Surrogate’s Court of Sullivan county, entered in said Surrogate’s Court on the 12th day of July, 1902, directing the said administratrix to pay the sum of $135.60 to Charles H. Stage as attorney for-William Jones.</p> <p>In an action in the Supreme Court in which Mary Mahoney, as administratrix of Patrick Mahoney, deceased, was plaintiff, and "William Jones was defendant, judgment was recovered by William Jones against Mary Mahoney, as administratrix, etc., for the sum of $297.03, and the. same was docketed in the clerk’s office of Sullivan county. A transcript of said judgment was presented to Mary Mahoney, as administratrix, and payment demanded, which was refused. Application was then made by Jones, as a creditor of the estate, under section 2722 of the Code of Civil Procedure, for a decree compelling the payment of the claim. This application was denied upon the ground that the petitioner was not a creditor within the meaning of that section. Thereafter application was made, under section 1825 of-the Code of Civil Procedure, for leave to issue execution against said estate. This application was granted, and leave to issue execution in the sum of $135.60 was given to the respondent That execution was issued- and returned nulla hona. Thereupon this application was made for a decree directing payment by the administratrix of the sum of $135.60. This application was granted, and from the order or decree entered thereupon, this appeal has been taken.</p>

Appeal by the defendant, James R. Honeywell, as receiver of the Delaware Loan and Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 13th day of December, 1902, upon the verdict of a jury rendered by direction of the court.

<p>Appeal by the plaintiff, Haney Goodspeed, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Tompkins on the 28th day of April, 1902, upon the decision of the court, rendered after a trial before the court without a jury, the parties having waived a jury trial, dismissing the plaintiff’s complaint.</p> <p>This action was brought against the defendant under section 39 of the Railroad Law (Laws of 1890, chap. 565). Upon the trial before the court without a jury the court determined that the defendant was not liable for the penalty, and directed a dismissal of the complaint, with costs. From the judgment entered upon this direction the plaintiff has appealed. ,</p>

<p>Attachment — evidence of damages essential. — measure of damages for the breach of a contract f or the sale of merchandise — the vendee must seek the goods of others.</p> <p>While an attachment may be granted where unliquidated damages only are demanded, there must be sufficient evidence of such damages to authorize the court to say, prima facie, that the plaintiff has sustained damages to the extent of the amount claimed.</p> <p>The measure of damages, for the breach by the vendor of a contract for the sale of goods for future delivery, is primarily the difference between the contract price and the price at which the goods could be obtained by the vendee from other dealers.</p> <p>The vendee is bound to seek the goods in other markets, and it is only upon his failure to obtain them there that he can recover any special damages for loss of profits.</p> <p>Where, therefore, the vendee in such an action seeks to recover special damages for loss of profits, but does not claim to have made any attempt to procure goods of equal quality from other dealers, tie fails to show that he has suffered any damages from the breach, of the contract, and is not entitled to an attachment.</p>

Appeal by the defendant, The Home Insurance Company of the City of New York, from a judgment of the Supreme' Court in favor of the plaintiffs, entered in the office of .the clerk of the county of Franklin on' the 28tli day of March, 1903, upon the verdict of a jury for fifty dollars, and also from an order entered in said clerk’s office on the 9th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Isaac M. Haswell and others, as com- ' missiouers of the Albany Penitentiary Commission, and constituting, composing and comprising the Albany Penitentiary Commission, and another, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 8th day of June, 1903, pursuant to an interlocutory judgment entered in said clerk’s office on the 13th-day of May, 1903, upon the decision of the court, rendered after a trial at the Ulster Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint, and also, from an order entered in said clerk’s office on the 23d day of May, 1903, denying the defendants’ motion for a resettlement of said interlocutory judgment.</p> <p>The action is brought by plaintiff, who is the acting superintendent of the Albany Penitentiary, to restrain the defendants, who are the statutory commissioners having in charge said- penitentiary, and the sheriff.of Albany county, from removing the plaintiff from the said office of superintendent; from proceeding under the authority of chapter 127 of the Laws of 1902, on the ground that said statute is unconstitutional and void.</p> <p>Prior to 1902 the penitentiary had been under the management of commissioners appointed under chapter 261 of the Laws of 1885, as amended by chapter 761 of the Laws of 1895. Under this law the . superintendent of the penitentiary was appointed for the term of live years, and received his appointment upon the 29th day of September, 1900. By that law his salary was fixed at $3,000 per year. He, with his family, lived at the penitentiary. By chapter 127 of the Laws of 1902 it was provided: “ The Albany Penitentiary Commission shall, within fifteen days after the tenth day of June, eighteen hundred and ninety-five, and each five years thereafter, for a period of. five years appoint a superintendent or principal "keeper of the Albany Penitentiary whose salary shall be fixed by the said commission, and who shall not be engaged in any business or any other occupation or employment. * * * They are also hereby authorized and empowered, whenever in their discretion it seems to them to be for the best interests of the county of Albany, to dispense with the services of a superintendent or principal keeper of said penitentiary, and place the same in the custody, care, management and control of the sheriff of the county of Albany, who shall serve without any extra compensation, and who shall have the same powers and be subject to the samé duties as are now prescribed for the superintendent of said penitentiary, subject, however, to the supervision of the said commission and the duties and powers now conferred on it,” Pursuant to that statute the commissioners caused notice to be served upon the superintendent that it was their intention, upon the 1st day of March, 1903, to place the penitentiary in the hands of the sheriff,' whereupon this action is brought by the present superintendent to enjoin the defendants, who are the penitentiary commissioners and the sheriff of Albany county, from acting under the said statute and removing the plaintiff and placing said penitentiary in the hands of the sheriff. To this complaint a demurrer was interposed upon the ground that the complaint does not state facts sufficient tó constitute a cause of action. This demurrer was by the Special Term overruled, and an interlocutory "and final judgment was entered overruling said demurrer, with costs against the said commissioners and the sheriff, and enjoining them from acting in any way under chapter 127 of the Laws of 1902. After the interlocutory judgment, and before the final judgment, a motion was made to correct the interlocutory judgment by limiting the effect of the injunction clause so as not to enjoin the commission from acting under that part of the statute which declares that the salary of the superintendent is to be fixed by the said commission. This motion was denied. From the final judgment, and from the order denying the motion to resettle, this appeal is taken.</p>

Appeal by the defendant, the Oatskill Electric Railway Company, from a judgment of the County Court of Greene county in favor of the plaintiffs, entered in the office of the clerk of the county of Greene on the 15th day of December, 1902, upon the verdict of a jury, for $150, and also from an order bearing date the 9th day of December, 1902, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The 2Etna Indemnity Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 5th day of June, 1903, upon the decision of the court rendered after a trial at the Franklin Trial Term, a jury having been waived.</p> <p>Defendant is a foreign corporation, having its principal office and place of business in the State of Connecticut. On the 17th day of March, 1898, said company duly appointed one Frank S. Channell, of Malone, N. Y., a resident assistant secretary, by am instrument in writing, the principal part of which is as follows: “ Know all men by these presents : That The HDtna Indemnity Company, a corporation duly organized under and by virtue of the laws of the State of Connecticut, and having its principal office located in the City of Hartford, said State, does hereby make, constitute and appoint Frank S. Channell of the city of Malone, County of Franklin and State of New York, its Resident Assistant Secretary, to execute and deliver and attach the seal of said Company to any and all bonds to be filed in any City or County of the State of New York under the provisions of the Liquor Tax Law of the State of New York (Laws of 1896, Chapter 112, as amended by Laws of 1897, Chapter 312) and the various acts amendatory thereof and supplementary thereto, and all said Bonds shall be also duly signed in all cases by the President or Vice President.”</p> <p>On the 18th day of December, 1901, the defendant Bowker filed with the county treasurer of Franklin county an application in writing for the purpose of obtaining a liquor tax certificate for traffic in liquor under subdivision 1 of section 11 of the Liquor Tax Law (supra) at premises in said application described and paid to said county treasurer the tax required by law. At the same time said Bowker filed with the county treasurer a bond purporting to be given by himself and the defendant company to the People of the State of New York in the form required on obtaining a liquor tax certificate. The bond so filed with the county treasurer bore the signature of. Bowker, and was also signed “ The .¿Etna Indemnity Company, surety, by F. T. Maxwell, president.” It was not executed by Channell. A copy of the written authority given by said company to said Channel! to execute and deliver bonds as in said authority expressly stated was before the county treasurer. It also appears that said Channell was absent from Malone and that the bond was prepared by a clerk in the office of said Channell. Before said Channell left Malone his clerk had a talk with him, which, as related by said clerk, is as follows : “ I said to. him, ‘ when you are absent Mr. Channell will it be all right if I issue a bond to any one who makes application and ■ that you- will sign it when you get home ? ’ He said ‘ yes, if it is agreeable to Mr. Adams.’ ”</p> <p>At the time the bond was delivered to the defendant Bowker the clerk in the office of Channell telephoned to the county treasurer, and the conversation as related by the clerk is as follows : “(I) told him that Mr. Bowker * * * had been in the office and made application for a bond. I said ‘ Mr. Channell is not here, but I will issue the bond and give it to him and Mr. Channell will sign it when he comes home,’ and I said * how will it be with you % ’ He said ‘ all right,’ or words to that effect.”</p> <p>The liquor tax certificate was issued for the balance of the year, ending April 30, 1902. On the twenty-seventh day of March following Bowker was found guilty on an indictment charging him. with having sold liquor to an Indian contrary to subdivision 4 of section 30 of the Liquor Tax Law (supra). He was fined $100, which he paid, and the liquor tax certificate was canceled and surrendered.</p> <p>On the thirteenth day of May thereafter Channell, without knowledge that said Bowker had violated the Liquor Tax Law or of his conviction therefor, or that said liquor tax certificate had been actually surrendered and canceled before the expiration thereof, signed said bond.</p> <p>The witness clause of said bond is as follows: “ In witness whereof, the said principal hereto has duly signed these presents and the surety hereto has caused its corporate seal to be hereunto affixed, and these presents to be signed by F. T. Maxwell, its president. This bond shall bind said surety company only when signed by F. S. Channell, its lawful Resident Assistant Secretary at Malone, FT. Y., County of Franklin, FT. Y., whose certificate of authority-is duly'filed with the officer authorized to issue liquor tax certificates for the county in which the traffic in liquors is to be carried on by said principal.”</p> <p>This action is brought by the plaintiff, as State Commissioner of Excise of the State of FTew York, to recover the- penalty of said bond. Judgment was rendered against the defendants, therefor, from which judgment this appeal is taken'.</p>

<p>Appeal by the plaintiff, Electa Howard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 6th day of January, 1903, upon the report of a referee dismissing the plaintiff’s complaint.</p>

Appeal, by the plaintiff, Josephine Dumar, as administratrix, etc., of Moses Dumar, deceased, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Essex on the 29th day of June, 1903, directing the plaintiff to serve an amended complaint setting forth the particulars in said order stated.

<p>Cross-appeals by the relator, Jesse L. Perry, and by the defendants, The Board of Canvassers of Sullivan County and another, from an order of the Supreme Court, made at the Sullivan Special Term and entered in the office of the clerk of the county of Sullivan on the oth day of December, 1902, directing the issuance of a peremptory writ of mandamus commanding The Board of Canvassers of Sullivan County to count, recount or exclude certain ballots cast for the office of school commissioner, first commissioner district of said county.</p>

<p>Removal by a municipal corporation of a flagstone sidewalk, laid by it, which the abutting owner, having the fee of the street, refused to pay for — liability of the municipal corporation to such owner.</p> <p>The owner of the fee of a highway has, in such highway, all the usual rights and remedies of the owner of a freehold, and as such has the exclusive right to the soil and its products, including the herbage and the trees, subject only to the easement or right of passage over it by the public and the incidental right of properly fitting the way for use. -</p> <p>A municipal corporation which, without consulting the abutting owners, lays a permanent flagstone sidewalk upon á street, the fee of which is in the abutting owners, is not entitled to remove the sidewalk in the event of the refusal of the abutting owners to pay an assessment levied upon them to defray the cost of the sidewalk. If it does remove the sidewalk it is liable to the abutting owners for the damage sustained by them in consequence of the removal.</p>

Appeal by the defendant, Ward Robertson, from a judgment of . the County Court of Fulton county in favor of the plaintiff, entered in the office of the clerk of the county, of Fulton, upon the verdict of a jury rendered in March,. 1903, convicting the defendant of the crime of rape in the second degree.

Appeal by the defendants, Katharine K. Peck and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 23d day of July, 1903, upon the decision of the court, rendered after a trial at the Fulton Special Term, adjudging the condemnation of certain real property described in the petition in the action to be necessary for the public use.

<p> Heceiver of a railroad—when he should not be authorised to issue receivers certificates—purposes to be subserved by the appointment of a receiver. </p> <p>During the pendency of an action brought to foreclose a trust mortgage executed hy a railroad company, a temporary receiver, appointed in an action to sequestrate the property of the railroad company, made an application to the court for leave to issue and sell receiver’s certificates, alleging in his petition that the operating expenses of the railroad were about equal to its income and that he was wholly without funds for all of the purposes of his trust other than the bare operating expenses. He made no proof that a larger income from the railroad property could reasonably he expected in the near future.</p> <p>Held, that it was error for the court, upon this showing and over the objection of the bondholders, to authorize the receiver to issue certificates to pay the interest past due on the mortgage bonds and to provide that such certificates should he a lien on the railroad property superior to the trust mortgage.</p> <p>The jurisdiction of the court to appoint receivers of property has for its primary object the care and custody of the property which is the subject of the receivership pending the determination of the questions involved in the litigation and to enable the court hy placing the property under the control of its officer to preserve it to answer the final decree which may be made in the action.</p> <p>One of the purposes of a receiver of a railroad corporation is to manage and operate the property and maintain its integrity as a road and as a going business.</p> <p>The authority of the court to authorize a receiver of a railroad corporation to issue receiver’s certificates and to make the lien thereof prior to all other liens on the property held by the receiver does not rest upon consent when the issue of such certificates is absolutely necessary for the preservation of the property as a going concern pending litigation. Such authority to issue receiver’s certificates has been so long recognized by the courts that mortgage bondholders are presumed to have received their bonds with knowledge of, and acquiescence in, such authority, but the authority to so issue receiver’s certificates without the consent of persons and corporations having vested liens on the railway property should not be extended beyond such necessity. Such certificates should not be issued for ulterior purposes, or when not absolutely necessary for the preservation of the property as a going concern pending litigation, at least, without the express or constructive consent of the persons and corporations having vested interests in the property so held by the receiver.</p>

<p>Franchise tax on life insurance companies — the tax must he paid on all premiums; renewal as well as first-year premiums, of the preceding year — the tax is not retroactive—it must he paid on thepremiums received during theentire year 1901..</p> <p>' The tax imposed by section 187 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1901, Chap. 118), providing that “an annual State tax, for .the privilege of exercising corporate franchises or for carrying on business in their corporate or organized capacity within this State, equal to one per centum on the gross amount of premiums received during thé' preceding calendar year for business done in this State, whether such premiums were in the'form of money, notes, credits, or any other substitute for money, shall be paid annually into the treasury of the State, on or before the first day of June, by * * ' * every domestic insurance corporation, incorporated, organized or formed under, by or pursuant to a general or special law,” is not a tax upon property, but is purely a franchise tax.</p> <p>Although the act did not take effect until October 1, 1901, and the first tax imposed thereby was payable June 1, 1903, the corporations subject to the act must pay the tax on the premiums received by them during the entire year of 1901.</p> <p>The fact that the amount of the tax is measured by the premiums received during the year preceding that in which the tax is paid does not render the tax a retroactive one.</p> <p>The term “ gross amount of premiums,” used in the provision of the statute requiring that the tax shall be computed “on the gross amount of premiums received during the preceding calendar year for business done in this State, ” does not mean the gross amount of first-year premiums, but includes all premiums, whether first-year premiums or renewal premiums. --</p>

<p>City Court of Elmira — the summons in an action therein may he served upon the local agent of an insurance company pursuant to section 8881 of the Code of Civil Procedure as amended in 1895.</p> <p>Section 105 of the charter of the city of Elmira ¡(Laws of 1894, chap. 615, as amd. by Laws of 1895, chap. 371) which provides that the City Court of Elmira “shall- have the same jurisdiction over the persons of defendants as is now possessed by Justices’ Courts of towns pursuant to the provisions of section twenty-eight hundred and sixty-nine of the Code of Civil Procedure,” did not operate to render inapplicable to that court the amendment made to section 2881 of the Code of Civil Procedure by chapter 349 of the Laws of 1895, which authorized the summons, issued in an action brought against an insurance company in a Justice’s Court, to be served upon the local agent of the insurance company residing in the county, provided no other person resides in the county upon whom service can be made and no person has been designated to accept service.</p>

Appeal by the plaintiff, Martin Powell, and by J. John Hassett from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the cleric of the county of ■ Chemung oh the 12th day of May, 1903, vacating an order of reference and an order of distribution in surplus money proceedings herein, and directing the plaintiff and J. John Hassett to pay to the treasurer of the county of Chemung, with interest, the moneys paid to them respectively by…

<p>Appeal by the defendant, .the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rensselaer on the 16th day of January, 1903, upon the verdict of a jury for $4,500, 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>Arpead by the defendant, Mary Pender, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Washington on the 13th day of August, 1903, directing that defendant’s demand for a bill of particulars be stricken from the case.</p>

<p>Appeal by the relators, Judson L. Hyde and others, as qualified voters and taxpayers of the town of Massena, New York, 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 St. Lawrence on the 27th day of April, 1903, denying the relators’ motion for a peremptory writ of mandamus.</p> <p>At the biennial town meeting of the town of Massena, held on the 10th day of February, 1903, one Samuel S. Danforth was duly elected supervisor, but failed to qualify as such. On the twenty-fourth day of February thereafter, upwards of twenty-five legal voters of that town filed a petition with the respondent, who was the town clerk, demanding that he call a special town meeting for the purpose of electing a person to fill the vacancy in such office. He refused to comply with the demand. The relators then applied to the Special Term for a peremptory writ of mandamus, to compel him to call such meeting. In answer. to such application. -the respondent filed an affidavit showing that at a meeting of the town board held on the 13th day of March, 1903, for the purpose of filling the vacancy in the office of supervisor, caused by the failure of Danforth to qualify, one John C. Grapser was appointed to fill such vacancy, and that he had qualified, by filing his oath of office and the undertaking required by law. From an order denying the application for such peremptory writ the relators appeal.</p>

Appeal by Seymour Bowman from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Chemung on the 25th day of June, 1903, denying his application to vacate an order to show cause why he should not deliver to Henry J. Haase, as chamberlain of the city of Elmira, the books and papers appertaining or bélonging to such office, and directing that the appellant be committed to the'Chemung county jail until the…

<p> Dedicatiqn of'land, for a street—who must make it—what does not estop an Owner from, denying the efficiency of an alleged dedication of his land by its delineation as a street ón a map made and filed, by an owner of adjoining land. </p> <p>Charles P. Sanders, Jr., and L. Ten Broeck Sanders acquired in 1890 title in severalty to two adjoining pieces of land. In 1891 and 1892 L. Ten Broeck Sanders caused maps to be made and filed in the county clerk’s office designating as>a street a strip of land belonging to Charles P. Sanders, Jr., and adjoining the premises of the said L; Ten Broeck .Sanders. The latter also executed two deeds in which he located the lots conveyed by reference to the alleged street,</p> <p>Charles P. Sanders, -Jr., was an attorney, and under the employment of his brother, L. Ten Broeck Sanders, drew some of the deeds which referred to the ■alleged street.. He also filed one of the maps before referred to in the clerkis office. He testified, however, that he acted for his brother in whatever he did concerning the maps and that he never consented to the alleged street being opened.</p> <p>The space embraced in the alleged street was always fenced and was never in fact opened or used as a street. Charles P. Sanders, Jr., never made any conveyances with reference to the maps in question or referring to the open space shown on the maps as a public street. In 1900 he conveyed the land embraced in the alleged street to a third party by a warranty deed.</p> <p>Held, that a dedication of land for street purposes must, in order to be effectual," be made by the owner of the land, and that an intent on the part of such owner to make the dedication must clearly and satisfactorily appear;</p> <p>That there had been no dedication of the land in question for street purposes by Charles P. Sanders, Jr., the owner of such land, and that the evidence was insufficient to create an estoppel binding either upon him or upon the persons to whom he conveyed the alleged street from denying the efficacy of the dedication made by L. Ten Broeck Sanders.</p> <p>Smith and Houghton, JJ., dissented.</p>

Appeal by the plaintiff, Elia Tanas, as administrator, etc., of William Dimitri, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Albany on the 22d day of May, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Albany Trial Term.

Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of March, 1903, upon tlie verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 7th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, James 0. Daly, 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 Jth day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Washington Trial Term. The action was brought by a contract vendee of real property to recover the damages resulting from the vendor’s inability to convey a good title to it.

<p>Sills and notes — what proof as to the unlawful diversion of a promissory note imposes on the holder the burden of showing that he is a bona fide purchaser thereof for value — declarations of a foi'mer owner of negotiable paper are inadmissible to impeach his indorsee’s title.</p> <p>In an action to recover upon two promissory notes made by the defendants payable to their own order and indorsed by them in blank, evidence was given by ' the defendants tending to show that they had executed and delivered the notes to a third party merely as memoranda for disbursements made by the third. party in a litigation in which he and the defendants were jointly interested, and that such third party had unlawfully diverted the notes by discounting them.</p> <p>Held, that such proof imposed upon the plaintiffs the burden of showing that they were bona fide purchasers of the notes for value.</p> <p>Declarations made by the third party "that the notes were mere memoranda and that the defendants were not expected to pay them are inadmissible against the plaintiffs, as the declarations of the former owner of negotiable paper or of a chose in action are not admissible to impeach the right or title of his indorsee or assignee.</p> <p>The presumption that the indorsee of a negotiable note is a bona fide holder for value is not repelled by proof that the paper, as between the immediate parties, was without consideration. Nor does proof that the proceeds of a note, intended to be discounted, have been diverted from the agreed channel change the rule. But when the maker has shown that the note was obtained from him under duress, or that he was defrauded of it, or that it was without consideration and fraudulently put in circulation, the holder will be required' to. show under what circumstances and for what value he acquired the instrument.</p>

<p> Reformation of a written instrument because of mistake—proof required of a mistake of both parties—form of relief whefi’e there is a mistake of one pwty. </p> <p>A written instrument, carefully and deliberately prepared and executed, is evidence of the highest character, and will be presumed to express the intention of the parties to it until the contrary appears by clear, positive and unequivocal evidence. To entitle a party to a decree reforming such an instrument because of mistake, he must show that the material stipulation which he claims was omitted or inserted was so omitted or inserted contrary to the intention of both parties and under a mutual mistake. It is not enough to show that he made a mistake himself ; that, through inadvertence and error . on his part, he executed an instrument which did not express what he intended. He must also show that the other contracting party labored under a similar delusion.</p> <p>Courts of equity should exercise great caution in reforming written instruments ' on the ground of mistake, and should do so only when the proof of the mistake is so clear and convincing as to leave no room for doubt.</p> <p>A mistake by one of the contracting parties may be a ground for rescinding the contract or for refusing to enforce its specific provisions, but it cannot be a ground for altering, its terms.</p>

Appeal by the plaintiffs, Lucius N. Littauer and another, 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 Fulton on the 3d day of July, 1903, vacating a judgment theretofore entered by default against the defendant Stern. The action was commenced by the service of a summons and complaint upon April 23, 1903.

Appeal by the defendant, Magdalene I. Merritt, as executrix, etc., •of Julia A. La Grange, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 6th day of March, 1903, upon the report of a referee.

Appeal by the defendant, the United Traction Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of j Rensselaer on the 23d day of June, 1903, denying the defendant’s motion to change the place of trial of the action from the county of Rensselaer to the county of Albany. Plaintiff resides in Albany county, and was injured' by defendant in that county.

Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the'11th day of March, 1903, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 23d day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.

. Appeal by the defendant, The Thatcher Manufacturing Company, 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 St. Lawrence on the 25th day of June, 1903, granting the plaintiff’s motion for a bill'of particulars.

Appeal by the defendant, The Champlain Electric Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 25th day of April, 1903, upon the decision of the court rendered after a trial at the Clinton Trial Term, a jury having been waived.

Appeal by the defendants, George Trank and another, from a judgment of the County Court of Warren county, entered on the 16th day of July, 1903, upon the verdict of a jury.

Appeal by the plaintiff, Alfred O. Dunk, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of • the county of Broome on the 6th day of February, 1903, requiring the plaintiff to give an additional undertaking for costs.

<p> Liability of"bail for afine imposed, where'a certificate of reasonable doubt is given id one convicted and sentenced to imprisonment and to pay afine. </p> <p>The correct interpretation oí’ sections 527, 530, 555, 556 and 585 Of the Code of Criminal Procedure is</p> <p>That where a defendant is convicted of a crime and is sentenced to imprisonment only, if he takes an appeal from the judgment of conviction and obtains a certificate of reasonable doubt, he cannot be compelled to enter upon the service of his term of imprisonment during the pendency of such appeal, but must be retained in the custody of the sheriff during the interim, unless an order is made admitting him to bail, and an undertaking is given to the effect that he will surrender himself in execution of the judgment in case it is affirmed;</p> <p>That if such defendant is sentenced to pay a fine only, takes an appeal, obtains a certificate of reasonable doubt, and an order is made admitting him to bail>(i such certificate is, in effect, granted upon condition that the defendant will execute an undertaking conditioned for the payment of such fine in case the judgment of conviction is affirmed, and the collection of such fine is not stayed until such undertaking is executed;</p> <p>That if a defendant, who is convicted of a crime is sentenced to imprisonment and also to. pay a fine, takes an appeal from the judgment of conviction and obtains a certificate of reasonable doubt, and an order is made admitting him to bail in a sum specified, and providing for an undertaking conditioned that the defendant will surrender himself in execution of the judgment, and also that he will pay the fine imposed if the, judgment is affirmed, the surety upon such an undertaking is liable for the amount specified in case the ’ defendant is not surrendered, and for the amount of the fine in case the defendant is surrendered but refuses and neglects to pay such fine.</p>

Appeal by the defendant, The Roderick Lean Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 14tli day of May, 1903, upon the verdict of a jury for $3,040, and also from an order entered in said clerk’s office on the 14th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 20th day of Apfil, 1903, upon the decision of the court, rendered after a trial- at the Erie Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint,</p> <p>The action was commenced on the 8th day of' February, 1903, to * recover damages sustained by the plaintiff because of the alleged failure of the defendant to properly transmit a-- quantity of cabbage from Holjey, N. Y., to Pittsburg, Penn., on account of which the cabbage was destroyed and was a total loss to the plaintiff.</p>

Appeal by the defendant, The American Fire Engine Company, from an order of the Supreme Court, made at the Seneca Trial Term and entered in the office of the clerk of the county of Seneca on the 12th day of March, 1903, denying the defendant’s motion to set aside the verdict of a jury for $2,000 theretofore rendered in favor of the plaintiff, and for a new trial made upon the minutes.

Appeal by the defendant, the Citizens’ National Bank of Corry, Pa., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 20th day of April; 1903, upon the decision of the court rendered after a trial at the Cattaraugus Special Term.

Appeal by the plaintiff, Mary W. Packard, from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Onondaga on the 21st day of July, 1903, denying the plaintiff’s motion for an order directing that the issues and questions of fact in the action be submitted to a jury. The action was commenced on the 28th day of January, 1903, by the plaintiff to obtain a bill of separation from the defendant.

<p>Compulsory reference—when granted in an action by attorneys for services rendered by them to their client — not avoided by a stipulation admitting certain facts.</p> <p>In an action brought by attorneys and counselors at law to recover for professional services alleged to have been rendered by the plaintiffs to the defendant, the complaint averred that the services were rendered in certain proceedings in the tiurrogate’s Court and in two actions in the Supreme Court. The items of disbursements set forth in the complaint numbered forty five, and ranged in amount from 25 cents to §83.80, making a total of §262.65. The items for services numbered forty, and ranged in amount from §10 to §150, making a total of §1,800. Payments aggregating §287.10 were admitted to have been made, leaving a balance of §1,779.55 as the sum claimed to be due.</p> <p>The defendant interposed an answer, in which, among other things, she alleged that the services and disbursements in question were rendered and made for the defendant in her capacity as administratrix of a decedent; that the larger portion of such services were rendered under an arrangement between the plaintiffs and a third party, by which the plaintiffs were to receive, and did receive, from such third party a contingent fee for such services, which fee was claimed to be a set-off; that the value of the services rendered by the plaintiffs did not exceed the sum of §500, and that §559.10 had been paid to be applied upon the claim.</p> <p>Held, that it was apparent that the trial would involve the examination of a long account, and that the-issues were of such a character that a jury trial thereof would be impracticable;</p> <p>That, consequently, a compulsory reference might, upon the application of the plaintiffs, be directed, pursuant to section 1013 of the Code of Civil Procedure;</p> <p>That the necessity for the reference was not obviated by an affidavit stating that the defendant would admit, upon the trial; that the plaintiffs rendered the services alleged to have been performed, leaving to be litigated the question as to their value, and that the defendant would also admit the amount of the various items of disbursements, but would urge that such disbursements were not chargeable to the defendant.</p> <p>Spring and Williams, JJ., dissented.</p>

Appeal by the plaintiff, Anna B. Shannon, as administratrix, etc., of Spencer Shannon, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 27th day of December, 1902, upon a nonsuit granted by the court after'a trial at the Oneida Trial Term, certain specific questions having been submitted to the jury, and also from an order entered in said clerk’s office on the 3d day of December, 1902,…

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 20th day of March, 1903, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 21st day of March, 1903, denying the defendant’s motion for a new trial made upon the minutés.'

Appeal by the defendants, Isaac Meyer 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 Steuben on the 31st day of March, 1903, upon the verdict of a jury, and also from an order entered - in said clerk’s office on the 31st day of March, 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The City of Watertown, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county Of Jefferson on the 27th day of January, 1903, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 22d day of January, 1903,, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Louis Windholz, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 13th day of April, 1903, upon an order of said County Court, entered in said clerk’s office on the 13th day of April, 1903, affirming a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiffs, and also from the said order upon which such judgment was entered.

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 Erie on the 21st day of October, 1902, upon the verdict of a jury for $8,500, and also from an ordér entered in said clerk’s office on the 21st day of October, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Contributory negligence — injury to one drwing a wagon on an electric railway from, a rear-end collisioi}, with a,car.</p> <p>In an action brought against an electric railway company to recover damages for personal injuries, it appeared that while the plaintiff was driving along the road between the village of Tonawanda and the city of Buffalo, with one horse and the wheels on one side of his wagon between the rails of the defendant’s track, a car approaching from, the rear at a speed of twenty or thirty miles an hour collided with the wagon and caused the plaintiff to sustain injuries.</p> <p>The accident occurred about seven o’clock in the evening when it was quite dark. The plaintiff’s wagon carried no light. The plaintiff was familar with the road and knew that the defendant’s cars ran at high speed in that locality. He could have driven upon either side of the track in safety.</p> <p>The car which struck the wagon bore a large headlight and was lighted inside by electricity. It was in full view of the plaintiff, had he looked back, for two minutes before the accident.</p> <p>Held, that the evidence showed affirmatively that the plaintiff was guilty of contributory negligence.</p> <p>McLennan; P. J., dissented.</p>

Appeal by the plaintiff, Mary Kelly, as administratrix, etc., of Ellen Neville, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 21st day of February, 1903, upon the decision of the court, rendered after á trial at the Erie Trial Term, the jury having been discharged, dismissing the plaintiff’s complaint.

<p>Transfer Tax Law — tax on a legacy of less than $500 from an estate in excess of that sum—no tax on a legacy, toa widow, of less than $10,000—whoisa person exempted from the operation of the law.</p> <p>Section 220 of the Tax Law (Laws of 1896, chap. 908, as amended) provides that a tax of five per cent shall he imposed upon, transfers made by will and otherwise, of property of the value of $500 and over, to persons not exempt by the act from taxation, except as provided in section 221.</p> <p>The latter section provides that transfers to certain relatives, including a wife or widow, but not an uncle, shall not be taxable unless the value of the property is.$10,000 or more, and then only at the rate of one per cent.</p> <p>Section 242 of the act provides that the word “ property,” as used in the act, ■means the property passing by the transfers to persons not in the act specifically exempted from its provisions, and does not mean the property passing to separate individuals.</p> <p>Held, that in determining the limits of $500 and $10,000 referred to in the statute the whole property passing under the transfer to all persons not exempted from the act must be considered together;</p> <p>That, accordingly, where, by the will of a decedent, a legacy of $337 was given to the deceased’s uncle, and other property valued at $300 was given to the deceased's widow, the legacy to the uncle was taxable at the rate of five per cent;</p> <p>That a widow is not a person “exempt” from the operation of the law, but a transfer to her is not taxable unless the total value of the property passing under the transfer is $10,000 or more;</p> <p>That the exemption mentioned in the statute has reference to persons to whom transfers are made, such as a bishop or a religious corporation, and not to the value of the property transferred to such persons.</p>

<p>Appeal by tibe defendant, The American Brewing Company, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 11th day of May, 1903, denying the defendant’s motion to set aside an assessment of damages.</p>

Appeal by the plaintiff, The Village of Bolivar, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Allegany on the 4th day of May, 1903, vacating an injunction theretofore granted in the action by the county judge of Allegany county.

Appeal by the claimant, Margaret E. Clark, from a decree of the Surrogate’s Court of the county of Livingston, entered in said Surro-. gate’s Court on the 18th day of June, 1902, disallowing a claim filed, by the appellant against the estate of John Hyland, deceased.

<p>Variance between pleading and proof— complaint alleging an improper discharge into a natural watercourse — proof that such watercourse had been destroyed and a drain substituted — amendment of a pleading on appeal.</p> <p>Where the complaint in an action,, brought against a city to recover damages resulting from the overflow of a closed channel running across the plaintiff’s premises, is framed upon the theory that the channel is a natural watercourse and that the city has abused its rights in respect to the same by improperly discharging sewage and an excessive volume of water therein, proof that the city had diverted and destroyed the natural watercourse and that with its co-operation and acquiescence a sewer or drain had been constructed in the place of the natural watercourse constitutes a substantial variance, and a recovery' cannot be had upon the latter theory without an amendment of the complaint.</p> <p>Where the referee before whom the action is tried refuses to allow an amendment of the complaint to meet such variance in the proof, but permits the plaintiff to recover upon the pleadings as originally drawn, the Appellate Division will not, for the purpose of sustaining the judgment, amend the pleadings so as to conform to the proof.</p>

Appeal by the defendant, Moses Shire, as administrator, etc., of John Hamilton, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Erie on the 23d day of December, 1902, upon the report of a referee. Plaintiff was the holder of certain unpaid notes made by the Fahy-Sehantz-Bullock Company of Rochester.

<p>■Complaint in an action against a village for personal injuries — it must allege that thirty days have intervened between the presentation of the claim and the bringing of the suit — the pleadings will' not be examined to ascertain that fact — complaint not amended on a/ppeal where no application is made therefor below —■ objection that a complaint does not state a ca/use of action.</p> <p>■Section 322 of the Village Law (Laws of 1897, chap. 414) provides: “no action shall be maintained against the village for damages for the personal injury * * * alleged to have been sustained by reason of the negligence of the village * * * unless the same' shall be commenced within one year after the cause of action therefor shall have accrued, nor unless ” a written verified statement of the claim “ shall have been filed with the village clerk within six months after the cause of action shall have accrued,” and then continues: “An action on such a claim shall not be Commenced until the expiration of thirty days after it is presented.”</p> <p>■Held, that the provision of the section last quoted constitutes a condition precé. dent, compliance with which must be pleaded and proved;</p> <p>That a complaint in an action governed by this -section which does not alleg e compliance with such condition precedent is fatally defective, although it alleges compliance with the other provisions of the section;</p> <p>That the court would not examine the sunámons, complaint and answer, for the purpose of ascertaining, by an analysis of dates, whether such condition precedent had actually been performed;</p> <p>That no application for an amendment of the complaint having been made to the trial judge, although the question of the sufficiency of the complaint was seasonably raised, the Appellate Division would not exercise its power to amend tile complaint in order to sustain a judgment in favor of the plaintiff.</p> <p>The obj ection that a complaint does not state a cause of action need not be taken by demurrer, but may be interposed at any time.</p> <p>McLennan, P. J., dissented.</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 Niagara on the 17th day of October, 1.9.02, upon the verdict of a jury for $1,132.56, as amended by an order entered on the 29th day of October, 190,2, and also from an order entered in said clerk’s office on the 29th day of October, 1902, denying the defendant’s motion for a new…

Appeal by the defendant, Griffith Humphrey, from a.judgments of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 6th day of November,! 1902, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 7th day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, William Marr, as president of the Iron Holders’ Unión, No. 80, and others, from an order of the Supreme Court, made at the Onondaga Special Term and entered, in the office of the clerk of the county of Onondaga on the 27th day of July, 1903, enjoining and' restraining the defendants from assaulting, menacing, threatening and intimidating the workmen in plaintiff’s employ; also an appeal by Kyran Powers' and Otto Benz and the defendant John Lillis from an order entered in said clerk’s office on the 13th day of July, 1903, appointing a referee to hear and report to the court as to alleged violations of the said injunction order, and also from an order entered in said clerk’s office on the 27tli day of July, 1903, confirming the report of the said referee and adjudging that said Kyran Powers and others were guilty of criminal contempt of court.</p> <p>On the 30th day of June, 1903, upon the application of the plaintiffs in an action and upon a contested motion, an injunction was issued herein, restraining the defendants, and “ each of them, their agents, servants, representatives and coadjutors, and all persons connected with them, or either of them, * * * from assaulting, menacing, threatening or intimidating, whether by manner, attitude, speech, numbers, or other act or means, the men and workmen in plaintiffs’ employ * * * and from interfering with said plaintiffs or said plaintiffs’ business by any unlawful means for the purpose of preventing any person or persons who now are or may hereafter be in plaintiffs’ employment from continuing therein, or who, being desirous of entering said employment, from doing so, or continuing therein.”</p> <p>On the seventh day of July, upon affidavits of various parties, an order, directed to the appellants and others herein, requiring them to show cause why they should not be punished for a criminal contempt for a violation of the injunction order theretofore issued in that, upon the third day of July, they had assaulted and intimidated the workmen of the plaintiffs, was granted herein.</p> <p>Upon the return to the order an order of reference was made to take testimony upon the questions raised by the affidavits presented, and upon the coming in of the referee’s report certain of the appellants were adjudged guilty of a criminal contempt and punishment therefor was imposed.</p> <p>The three appeals from the injunction order, the order of reforerence and the order adjudging the persons in contempt are presented together.</p>

<p>Appeal by the plaintiff, Anna Brady, from so much of a judgment of the Supreme Court in favor of the defendant, Louise J. Smith, entered in the office of the clerk of the county of Lewis on the 7th day of May, 1903, upon the decision of the court, rendered after a trial at the Lewis County Special Term, a jury trial having been waived, as among other things determines and adjudges that the title of the plaintiff in the lands described in the complaint is less the mines and minerals reserved as set forth in said judgment.</p>

Appeal by Charles Keenan from an order of the County Court of Cattaraugus county, entered in the office of the clerk of said court on the 6th day of May, 1903, .directing him to deliver to the petitioner, William D. Fitzgerald, the books and papers pertaining to the office of the clerk of the city of Clean.

Appeal by the plaintiff, John F. Plummer, 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, allowing the sheriff of the county of New York poundage fees upon property of the defendant International Power Company, released from an attachment and directing the plaintiff to pay the same.

Appeal by the defendants, John Schreyer and another, from portions of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New Fork on the 25th day of June, 1903, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by George H. Fisher, acting for and on behalf of himself and of the firm of Fisher & Yoltz, attorneys at law, from an order of the Supreme Court, made at the New York Special Term bearing date the 5th day of September, 1903, and entered in the office of the clerk of the county of New Yprk, denying the appellant’s motion to vacate and set aside the satisfaction of a judgment in favor of the plaintiff and against the defendants in the above entitled action, and for the…

<p>Ah automobile traveling• eighteen miles an hour in the closely built portion of the city of New York — it is not an offense under the Highway Law — where theoffense is charged, to have been committed under the Highway Law, the driver cannot be convicted under section 666 of the Penal Code.</p> <p>Sections 163 and 169a of the Highway Law (Laws of 890, chap. 568), as amended by chapter 635 of the Laws of 1903, provide as follows:</p> <p>: '‘§163. * '* * FTo ordinance, rule or regulation adopted by the authori- - ties of any city in pursuance of this section or of any other law shall require an automobile or motor vehicle to travel at a slower rate than eight miles per hour within the closely built up portions of such city, nor at a slower rate of speed than fifteen miles per hour where the houses in such city upon any highway are more than one hundred-feet apart. * * *</p> <p>“ § 169a. * * * Any person who shall violate any of the provisions of this statute, or of any speed ordinance adopted pursuant hereto, upon conviction thereof, shall, in addition to the penalties provided in section one hundred and sixty-nine b, be further punished for a first oSense by a suspension of his right to run an automobile for a period of not less than two weeks.”</p> <p>Held, that such sections of the Highway Law do not purport to fix a rate of speed, or make it a crime to exceed any particular rate, but that they simply operate-to prevent the authorities of a city from fixing a lower rate of speed for automobiles than eight miles an hour;</p> <p>That an information which states that the defendant propelled an automobile-through the closely built portion of the city of New York at a speed of eighteen miles an hour, and that the right to operate an automobile at a greater speed, than eight'miles an hour is not permitted by any ordinance of said city,. “ Wherefore, deponent charges defendant with having violated chapter 625 of the Laws of 1903,” does not charge the commission of a crime;</p> <p>That a conviction under such an information could not be sustained upon proof that the defendant had violated section 666 of the Penal Code relating to the-speed of automobiles on city streets.</p>

Appeal' by the defendant, Mary Allan, from an order of the Supreme Court, made at the New York .Special Term and entered in the office of' the clerk of the county of New York on the 2d day of September, 1903, denying the. defendant’s motion to vacate an ex parte order obtained by the plaintiff on the 22d day of June, 1903, allowing him to sue as a poor person and that plaintiff be required to furnish security for costs.

<p>Entire contract — when a recovery cannot be had 'for a part performance — a contract providing for the payment of wages in monthly installments is separable— a recovery of wages is allowable for services for a completed month, but not for one during which the employee is discharged — discharge justified where the employee does not obey instructions.</p> <p>Where a contract is entire and the performance of the entire contract is a condition precedent to the right to receive any money under it, the failure of one of the parties thereto to show that he has fully performed the contract or has been, prevented from making performance by the wrongful act of the other party, prevents recovery even for the time actually spent in the part performance.</p> <p>A written contract, by which one of the parties thereto employs the other party to render services as a salesman for the term of one year, at a fixed salary payable in monthly- installments, is separable to the extent of the monthly installments, where there is nothing in the nature of the work showing that its entire performance is required and was contemplated in order to bind the employer to pay any part of the stated compensation.</p> <p>'Where, therefore, the salesman is lawfully discharged, before the expiration of a month and before the installment for the previous month has been paid, he may recover in an action for wages the one unpaid, monthly installment. He is not entitled, however, whether his discharge was lawful or unlawful, to recover a proportionate part of his wages for the services rendered by him during the month in which he was discharged. His remedy as to this portion of his compensation is by ah action to recover damages for a breach of the contract.</p> <p>The continued violation by a salesman of his employer’s instructions not to sell goods on consignment will justify the salesman’s discharge.</p>

Appeal by the plaintiffs* James A. Benedict and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of October, 1903, as modifies an injunction order theretofore granted against the defendants as follows: “ So as to allow and authorize the removal by the defendants, or any of them, of that portion of the building No. 62 Wall Street, which is.above the…

<p>Appeal by the plaintiff, Pietro De Sando, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Few York on the 4th day of December, 1902, upon the decision of the court, rendered after a trial at the Few York Special Term, sustaining- .'the defendant’s demurrer to the plaintiff’s complaint.</p> <p>The action is for.libel published on October 6,1901, in defendant’s Sunday newspaper. The article complained of sets ’forth, the career of Giuseppe Musolino, an Italian bandit, brigand and mui'derer, and in connection therewith is printed a photograph of the plaintiff referred- to in the article as that of the outlaw whose name appears beneath it. Tlie article in part is as follows:</p> <p>“Musolino the Famous Italian Brigand, Coming to América, But not, He Says Until His Revenge Is Complete.</p> <p>“ Character Sketch of the Man who for Fearly Three Years Has Kept Fearly 20,000 Soldiers Busy Seeking Him, Dead or Alive, From the Pen of a Friend of His Boyhood Days •— In Communication with Relatives in America, from Whom the Photographs of Himself and His Sweetheart Herewith Reproduced Were Obtained — Fot Yet Ready to Come to America.</p> <p>“ Only Twenty-six Years Old, His Deeds of Daring Have Already Made Him as Picturesque as Any Hero of Fiction — Driven to Crime, he Contends, by Political Injustice — Broke Jail After Having Been Cpnvicted of Murder of Which He Protested His Innocence. Two and a Half Years Ago, He Began His Career of Vengeance, on His Enemies.”</p> <p>There is also contained therein an account of Musolino’s murder of a police officer, and an alleged autograph letter of the brigand in defense of his brigandage obtained from his American relatives, and the article, among other things, states that the sole source of authentic information concerning the bandit is that offered by his confidential letters to his kindred and acquaintances in America; and that “ His portrait, which we print with this article,” is from a recent photograph and the only one known to be in existence in this country. “ Musolino,” the article states, “ is still in Italy.”</p> <p>The complaint avers that by the publication the defendant “intended to and did convey the false, malicious, scandalous, defamatory and libelous meaning that plaintiff was a murderer, a brigand, a fugitive from justice and guilty of a felony; ” and that the publication of plaintiff’s portrait in connection with said article was false, malicious and without probable cause and said photograph was not obtained from Musolino’s relatives and was not a portrait of Musolino, as defendant well knew, but of the plaintiff, and the article and picture directly tended to injure the plaintiff, and hold him up as a bad character and charged him with being a murderer and conveyed the impression that he had been guilty of various crimes and felonies and held him up to obloquy and disgraced him in the eyes of his fellow-men.</p> <p>The defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, and from the interlocutory judgment entered sustaining such demurrer the plaintiff appeals.</p>

Appeal by the defendant, Marion E. D. Van Dyke, 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, overruling the answer of the appellant as frivolous and directing judgment thereon, and also from the judgment entered thereon in said clerk’s office on the 19th day of September, 1903.

., Appeal by the -defendants, Meyer L. Sire 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 26th day of June, 1903, adjudging them.in contempt and directing them to pay. to the defendant, receiver the sum of $60,000, and also from an order entered in said clerk’s office on the 23d day, of July, 1903,. denying the said defendants’ motion for a resettlement of said…

Appeal by James Mitchell, one of the administrators, not acting, and sole surviving next of kin of Margaret Mitchell, deceased, from an order of the Surrogate’s Court of the county of Mew York, entered in said Surrogate’s Court on the 11th day of September, 1903, denying the appellant’s motion to modify the decree of said Surrogate’s Court, bearing date the loth day of May,-1902,’ settling the accounts of the administrators herein and also from said' decree.

Appeal by the defendants, Le Roy Sober 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 3d day of August, 1903, upon the report of a referee, construing the will of Andrews Sober, deceased, except ¡from such part of said judgment as directs the payment of costs and allowances by the plaintiffs.

Appeal by the defendant, .¿Etna Insurance 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 5th day of October, 1903, granting leave to ■ the plaintiff to .serve a second amended complaint.

<p>The answer interposed in an action upon a policy of fire insurance alleged that the policy upon which the cause of action was based contained a provision- that “ It is understood and agreed as a part of this contract that' the' rate paid to , this company is the highest rate paid to any company on said risk at the time of the issuance of this policy; ” that at the time the said policy was issued plaintiff “was then paying to other companies a higher rate for insurance on the property covered by said policy than the rate paid /to defendant, in express violation of its agreement and representation with and to defendant.”</p> <p>tlpon the trial the parties stipulated that the above quoted allegations of the answer were true, and consented that the jury be discharged and the case sub- , mitted to the court for decision. The court directed a verdict in favor of tlw defendant. Subsequently on the plaintiff’s motion an order was made vacat- ■ ing and satisfying the .judgment entered upon the verdict and allowing the ■ plaintiff to serve an amended complaint asking for a reformation of the policy..</p> <p>Meld, that, even if the court had power to grant the desired relief (a question which the Appellate Division declined to determine), it should, in the proper exercise of its discretion, have refused to exercise such power.</p>

<p> Sheriff not entitled to poundage for the arrest of the debtor under a body execution, which is vacated because irregularly issued. </p> <p>The sheriff of the county of New York, whose right to poundage is governed by-subdivision 7 of section 17 of chapter 523 of the Laws of 1890, as amended by chapter 418 of the Laws of 1892, is not entitled to collect poundage from a judgment creditor in'a case where he made no levy upon property, and collected no money, and where the only service rendered by him consisted of taking the judgment debtor into custody under a body execution, which was subsequently vacated by the court because no property execution had been issued to the sheriff of the county in which the judgment debtor resided.</p>

' Appeal by the defendant, Josiah Quincy, 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 19th day of J une,' 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the plaintiff’s amended complaint.

Appeal by the defendants, The New York Mutual Savings^ and Loan Association and another, from an interlocutory judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of July, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrers to the plaintiff’s complaint.

Appeal by the defendant, The City of New York, 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 20th day of May, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Samuel Heller, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1903, granting the plaintiff’s application for an inspection and discovery of the defendant’s books.

Appeal by the defendant, National Broadway Bank, 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, stating the issues of fact in this action and directing a trial of such issues by a jury.

Appeal by the defendant, John B. McDonald, 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 June, 1903, denying the said defendant’s motion to strike out certain portions of the plaintiffs complaint.

Appeal by the plaintiff, Kate McHugh, as administratrix, etc., of Frank McHugh, deceased, 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 April, 1903, upon, the dismissal of the complaint by direction of the court, after a trial at the New York Trial Term.

Appeal by the defendants, Thomas L. James and others, 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 17th day of July, 1903, upon the decision of tile court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrer to the plaintiff’s amended complaint.

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 23d day of June, 1903, upon the report of a referee.

.Appeal- by the defendant,-Francis J. 'Lantry, as commissioner of correction of the city of New York, and by Thomas W,- Hynes, as commissioner of correction 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 7th day of April, 1903, substituting Thomas W. Hynes as defendant in this proceeding in the place and stead of the original defendant, the said Francis…

Appeal by the defendant, The Tribune Association, 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 12th day of May, 1903, upon the decision of the court, rendered after a trial at the New York Special Term,.overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, John McGaw Woodbury, as commissioner of street cleaning 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 23d day of June, 1903, denying the defendant’s motion for . a new trial made upon the minutes, ahd also from a final order entered in said clerk’s office on the 4th day of August, 1903, granting the relator’s motion for a…

Appeal by Henry Winthrop Gray, receiver of the United States Mutual Accident Association '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 15th day of June, 1903, vacating and setting aside certain previous orders settling the accounts of said receiver. •

<p> Motion to vacate an attachment because of irregularities in the moving papers and ■ the warrant—denied where the irregularities are not specified. </p> <p>A notice that upon papers named and at a time and place specified the defendant, in an action in which an attachment had been issued, would apply to the court for an order vacating said attachment, is not a sufficient compliance with rule 37 of the General Rules of Practice.</p> <p>A failure to comply with rule 37 of the General Rules of Practice, which provides that “When the motion is for an irregularity, the notice or order shall , specify the irregularity complained of,” is a sufficient reason for- refusing to vacate a warrant of attachment for irregularities in the papers on which the warrant was issued and in the warrant itself.</p>

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 26th day of May, 1903, upon the verdict of a jury for $870, and also from an order entered in said clerk’s office on the 26th day of May, 1903, denying the defendant’s motion for a new trial made ■upon the minutes.

Appeal by the plaintiff, Cora Smith, an infant, by Hattie Smith» her guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the -6th day of April, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.