Volume 89 — New York Appellate Division Reports

<p>Oral evidence — inadmissible to explain a reinsurance clause in a policy which is unambiguous and which has already been construed by the courts.</p> <p>A clause in a policy of reinsurance providing, “ Loss, if any,payable pro rata at the same time and in the same manner as by said companies (the original insurer),” is not ambiguous, and parol evidence is not admissible to establish that a retainer clause must be used in order to hold the company writing the original insurance to any stated amount in .case of loss; that in the absence of such clause the original insurer is at liberty to agree to any increase or diminution of its policy without consulting the reinsurers; that contribution is to be estimated upon the basis of the amounts of insurance subsisting at the time of the fire.</p> <p>"Where the legal effect of words used in a contract has been determined by the court, parol evidence is not admissible to change such meaning.</p>

<p>Action on a bond given by a trustee in bankruptcy—it may be brought in State courts — it must be in the name of the United States — the trustee is not a necessary party —action on a bond under seal must be by the obligee.</p> <p>Under subdivision h of section 50 of the United States Bankruptcy Law, which provides, “Bonds of referees, trustees and designated depositories shall be filed of record in the office of the clerk of the court, and may be sued upon in the name of the United States for the use of any person injured by a breach of their conditions,” an action upon a bond given by a trustee in bankruptcy under seal and running to the United States, can be maintained only in the name of the United States.</p> <p>The action, if brought in the name of the United States, may be maintained in the courts of the State of New York, and it is not necessary that permission to bring it in the name of the United States shall be first' obtained.</p> <p>The defaulting trustee in bankruptcy is not a necessary party to the action, where it appears that he is not within the State and is a fugitive from justice.</p> <p>At common law, an action upon a bond under seal must be brought in the name of the obligee irrespective of the owner. This rule still prevails in the State of New York, except where it has been modified by statute, notwithstanding that section 449 of the Code of Civil Procedure requires that the action shall be brought in the name of the real party in interest.</p>

Appeal by the plamtiffs, Louis Bossert and another, from a judgment of the Supreme Court in favor of the defendant, Adam Happel, bearing date the 27th day of May, 1903, and entered in the office of the cleric of the county of New York, upon the decision of the court rendered after a trial at the New York Special Term, dismissing the plaintiffsi complaint. , ’

Appeal by the defendant, Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 27th day of May, 1903, upon the verdict of a jury for $9,500, and also from an order entered in said clerk’s office on the 25th day of May, 19Ó3, dénying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 25th day…

Appeal by the defendant, Max Stern, 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 12th day of October, 1903, denying the defendant’s motion for a. commission to take testimony without the State of New York.

<p>Appeal by the plaintiff’ Moses Tanenbaum, 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, vacating an order for the examination of certain of the defendants before trial and vacating a subpoena duces, tecum,, with notice of an intention to bring tip for review upon said appeal an order entered in said clerk’s office on the 5th day of June, 1903, denying the plaintiff’s motion to prohibit Benno Loewy, Esq., appearing against the plaintiff, and from representing the defendants upon the examination of said defendants. The order last referred to does not appear in the appeal papers.</p>

Appeal by the defendant, Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of July, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 30th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Misjoinder of .parties plaintiff—cause of action based on false representations—when no cause of action is alleged.</p> <p>The complaint in an action brought by Julia A. Groh, individually and as executrix, etc;, of John Groh, deceased, alleged that, in reliance upon false representations made to her by the defendant, she had transferred to' him at an inadequate price her entire holding of the stock and bonds of a certain corporation, and that her testator, John Groh, had also transferred to him seven shares of the stock of the corporation.</p> <p>It was not alleged in the complaint that any false representations were made to John Groh, deceased, in order to induce him to transfer the seven shares of stock, or that the false representations made to Julia A. Groh were intended by the defendant to be repeated to John Groh, or that any representations were made to John Groh as coming from the defendant.</p> <p>The relief demanded was that the defendant assign to the plaintiff, individually/ all of the stocks and bonds transferred by her to him and that he transfer to ' the plaintiff, as executrix of John Groh, deceased, the seven' shares of stock which were assigned to him by the said John Groh, deceased.</p> <p>Meld, that there was a misjoinder of parties plaintiff.</p> <p>Semble, that the false and fraudulent representations having been made only to the plaintiff, individually, and, so far as appeared, not having been communicated to John Groh, deceased, no cause of action was stated in favor, of the plaintiff as executrix of John Groh, deceased.</p>

Appeal by the defendants, Henry C. F. Koch and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of July, 1903, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 26th day of June, 1903, denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Clarence E. Sherin, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of October, 1903, as denies the defendant’s motion to require plaintiff to separately state and number the causes of action intermingled in one count of the complaint.

Appeal by the plaintiff, Lewis Friedman, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 22d day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

Appeal by the plaintiff, Louisa Braun, from a judgment of .the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 16th day of July, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits and adjudging that defendants are entitled to specific performance of a contract for the purchase and sale of real estate.

Appeal by the defendant, William 0. Greene, from an order of the Supreme Court, made at the 'New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of October, 1903, denying the defendant’s motion to disallow and reject certain cross-interrogatories proposed by the plaintiff to be. administered to a witness on examination upon a commission.

Appeal by the defendant, the Natalie Anthracite Coal Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 3d day of February, 1903, upon the decision of the court rendered after a trial- at the New- York Trial Term, a jury having, been waived.

<p>Motion for leave to amend a complaint and set up a counterclaim—when it has heen once denied for laches and it introduces new issues it'will he refused—moving' ■ affidavit made hy the attorney instead of the party.</p> <p>The defendant in an action begun in 1898, made a motion in April, 1901, shortly before the trial thereof, for leave to amend his answer by setting up a counterclaim. The motion having been denied on the ground of laches, the defendant-commenced an independent action on the- counterclaim. The trial of the original action resulted in a verdict for the plaintiff which was ultimately reversed by the Court of Appeals. Two months after the decision of the Court of Appeals, the defendant in the original action made a motion to amend the-answer interposed in that action hy. setting up the counterclaim in question and for leave to discontinue the independent action brought by him upon such counterclaim which was at issue, but had not been tried.</p> <p>The proposed answer also renewed two defenses which the 'defendant had waived upon the former trial. The Special Term granted the motion upon terms.</p> <p>Held, that the motion should have heen denied, especially as the previous application had heen denied because of the defendant’s laches, and as he sought to introduce new issues into the action;</p> <p>That the moving affidavit was defective in that it was made hy the defendant’s attorney instead of by the defendant himself, and contained averments, of material matters of which the attorney could not have had personal knowledge.</p>

Appeal by the defendants, Anna Walter and another, from an order of the Supreme Court, made and entered in the office of the clerk of the county of New York on the 6th day of November, 1903, granting the plaintiff’s motion to place the case on the call calendar. On the trial of this action a juror was withdrawn in order to enable the plaintiff to apply at Special Term for an amendment of the complaint.

<p>Laches in moving to amend a complaint—under what circumstances excused.</p> <p>What facts, proved on a motion for leave to amend a complaint by alleging that the defendant was a joint stock company instead of a corporation as was alleged in the original complaint, are sufficient to excuse the failure to make the motion until over two years after the plaintiff’s attorney learned that the defendant was a joint stock company, considered.</p> <p>Van Brunt, P. J., and McLaughlin, J., dissented.</p>

Appeal by the defendant, John L. Shea, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the. 3d day of February, 1902, upon the verdict of a jury rendered after a trial at the New York Trial Term.

Appeal by the plaintiff, Joseph S. Woodhouse, 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 July, 1903, amending a decree of divorce theretofore entered in favor of the plaintiff.

Appeal by the relator, Eugene J. McEnroe, from an interlocutory judgment of the Supreme- Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 4th day of November, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the relator’s demurrer to each defense in the amended return. This was a proceeding by mandamus to compel the employment of the relator by the respondents.

Appeal by the plaintiff, Mary J. Murphy, as administratrix, etc., of Cornelius J. Murphy, deceased, from a judgment of the Supreme Court in favor of the defendant, The City of New York, entered in the office of the clerk of the county of New York on the 13th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Freeman F. Huntington, 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 24th day of March, 1903,' upon the verdict of „a jury, and also from an order entered in said clerk’s office, on the 25th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes,

<p>Appeal by the defendant, Llewellyn T. Botsford, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St, Lawrence on the 1st day of May, 1903, upon the verdict of a jury for $300, and also from .an order entered in said clerk’s office on the 28th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>This is an action to recover damages for a malicious prosecution. The defendant Botsford had a small bill against the plaintiff Coleman, but he knew that she had a larger bill against him which she could set off against it. He knew that the balance was beyond all doubt in her favor. Nevertheless, he commenced an action against her before a justice of the peace in the town of Potsdam, where he resided, on the 5th day of March, s1902. She resided in the adjoining town of Canton, about nine miles from the place where she was required to attend the trial. The action was adjourned to March twenty-first by consent. Botsford, by attorney, asked for a further adjournment, which request Mrs. Coleman denied. He thereupon discontinued and at once commenced another action; the suznmons returnable March twenty-eighth. Mrs. Coleman then appeared, Bots-ford did not, and the action was dismissed. A third summons was, on the same day, procured from the same justice and served on Mrs. Coleman. It was returnable on Sunday and, therefore, she did not attend in response thereto. Mrs. Coleman thereupon sued Botsford in the town of Canton, where she resided, and the action was ultimately settled by the payment to her by Botsford of fourteen dollars and costs. She thereupon brought this action for malicious prosecution, charging that she suffered damage not only to the extent of the expenses incurred in paying counsel and attending the court, but that she was also, by the wrong and mental distress occasioned by being compelled to so attend, made ill, nervous and unable to work. It appeared that she was upwards of sixty years old, nervous and somewhat feeble, and was obliged to work out as a domestic for her living. The action was tried before the court and a jury and a verdict rendered for the plaintiff of $300. From the judgenent entered thereon, and the order denying a new trial on the minutes, this appeal is taken.</p>

Appeal by the plaintiff, Eugene D. Flanigan, as committee of the property of Michael A. Skelly, an incompetent person, from a judgment of the Supreme Court in favor of the defendants John Skelly and others, entered in the office of the clerk of the county of Albany on the 30th day of January, 1903, upon the dismissal of the complaint by direction of the court after á trial at the Albany Trial Term.

Appeal by the defendant, Lewis F. Eckler, from an order of the Supreme Court, made at Fulton Special Term and entered in the office of the clerk of the county of Montgomery on the 23d day of June, 1903, directing the distribution of the share of the defendant Glidden A. De Wandelaer arising from the sale of real estate in a partition action. This action was brought to partition the real estate of James S. De Wandelaer, who died December 7, 1901.

<p>Action by a married woman for services rendered to a boarder — they belong to her husband — if the husband so agree the sum thus earned belongs to the wife.</p> <p>Where a husband as the head of the household takes boarders into his house and his wife takes charge of the house, and thus aids the husband in carrying on the business so maintained in the house, her services and earnings belong to the husband.</p> <p>Where, however, a wife renders services and furnishes meals to a stranger within the household under an agreement made between herself and her husband that, in case she renders such services and furnishes such meals, she alone shall receive the recompense therefor and that it shall become her separate property, the common-law rights of the husband to his wife’s services are abrogated and she may enforce the claim in her own name and right.</p> <p>Appeal by the defendant, Daniel I. Devoe, as executor, etc., of Nancy Smith, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 29th day of April, 19Ó3, upon the report of a referee.</p>

Appeal by the defendants, John 0. Garand and another, as primary inspectors, and others, from an order made by a justice of the Supreme Court, and entered in the office of the clerk of the county of Albany on the 19th day of October, 1903, canceling and setting aside a certificate and statement of primary inspectors in the third election district of the fourth ward in the city of Cohoes.

Appeal by the plaintiff, Westinghouse, Church, Kerr & Company, from an order of the Supreme Court, made at the Tompkins Special Term and entered in the office of the clerk of the county of Tompkins on the 21st day of September, 1903, granting the defendant’s motion to serve an amended answer in the above-entitled action.

Certiorari issued out of the Supreme Court and attested on the 13th day of June, 1903, directed to.

Appeal by the plaintiff, Frank Ehrenfried, as administrator, etc., of Charles A. Ehrenfried, 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 16th day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office, on the 16th day of February, 1903, denying the plaintiff’s motion…

<p>Appeal by the defendants, George A. Stoddard and another, as executors, etc., of Addison Stoddard, deceased, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 14th day of April, 1903, upon an order made at the Jefferson Special Term and entered in said clerk’s office on the 4th day of March, 1903, overruling the defendants’ demurrer to the complaint, and also from such intermediate order upon which the final judgment was entered.</p> <p>Harriet Stoddard commenced an action in the Supreme Court for a judgment of separation against her husband in January, 1901, the law firm of which the plaintiff is a member appearing in her behalf. Upon her motion an order was granted at Special Term “ to pay to the plaintiff’s attorneys in said action the sum of $250 as and for their counsel fee therein.” The order was entered April 9, 1901, and a certified copy served on the defendant May tenth thereafter. Ho part of the sum awarded was ever paid and Mr. Stoddard died May 25,1901. The plaintiff, who claims that he alone of his firm represented the plaintiff in the separation action, presented a claim to the executors of Stoddard, deceased, for.said sum of $250. The claim .was rejected by the executors, who refused to refer the same, and this action followed to enforce the collection of the sum allowed by said order.</p> <p>The demurrer, interposed on the ground that the complaint did not state a cause of action, was overruled with leave to answer in twenty days, and upon failure so to do the interlocutory judgment or order provided for judgment absolute in favor of the plaintiff, and such final judgment was thereafter entered as no answer was served.</p>

<p>Appeal by the defendant, Robert Cameron, from a judgment of the County Court of Erie county in favor of the plaintiff, entered on the 10th day of July, 1902, convicting the defendant of highway robbery in the first degree, and also from an order bearing date the 22d day of May, 1903, denying the defendant’s motion for a new trial made upon the ground of newly-discovered evidence. Hamilton Ward, Jr., for the appellant.</p>

<p>Appeal by the defendant, The Board of Supervisors of Livingston County, from an order of the Supreme Court, made at the Livingston Special Term and entered in the office of the clerk of the county of Livingston on the 10th day of April, 1903, directing the issuance of a peremptory writ of mandamus.</p>

Appeal by the defendants, Michael Daley and others, as president and board of trustees of the village of Lewiston, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the cleric of the county of Niagara on the 16th day of October, 1903, directing the issuance of a peremptory writ of mandamus requiring the defendants to call a special election to vote upon the question of the reincorporation of the village of Lewiston.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 2d day of February, 1903, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 11th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, Eoretto Dugan and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 16th day of September, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendants, Daniel Scholl and another, from a final' order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of ' Queens on the 2d day of February, 1903, confirming the report of commissioners of appraisal appointed in a condemnation proceeding.

Appeal by the defendant, Georgiana Estelle Kennedy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of January, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term, the court having, at the Westchester trial term, directed a verdict upon certain issues of fact tried before a jury; also from an order of the Supreme Court, made at the…

Appeal by tbe defendant, llomer Folks, as commissioner of public charities of the city of New York, from: a final order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 10th day of February, 1903, granting the relator’s motion for a peremptory writ of mandamus after the trial of issues raised by the return to an alternative writ of mandamus.

<p>Appraisal of damages for a change of grade in a town highway— a petition therefor must allege that it was previously graded and the ownership of adjacent land by the petitioner.</p> <p>In a proceeding instituted against a town under chapter 610 of the Laws of 1903, for the appointment of commissioners to determine the compensation to which the petitioner claims to be entitled by reason of a change in the grade of a highway in the town, it is necessary for the petitioner to establish that the highway has been previously repaired, graded and macadamized from curb to curb by the authorities of the town in accordance with section 69 of the County Law, and that the petitioner is the owner of land adjacent to the highway.</p> <p>Both these facts are jurisdictional, and if the answer of the town raises an issue in respect thereto, the issue must be tried before commissioners can be appointed.</p>

<p>Oleomargarine—statute prohibiting the sale of any substance in imitation of butter — it is constitutional — the disclosure at the sale of oleomargarine colored to imitate butter of its true character—qusere, as to the case of its looking like butter in its natural state.</p> <p>A Federal statute providing for the taxation of persons engaged in the manufacture or sale of oleomargarine does not authorize such manufacture or sale in a State in which either is lawfully forbidden.</p> <p>Chapter 385 of the Laws of 1902, which amended section 26 of the Agricultural Law by inserting therein the following provision: “ Any person manufacturing, selling, offering, or exposing for sale any commodity or substance in imitation or semblance of butter, the product of the dairy, shall be deemed guilty of a violation of the Agricultural Law, whether he sells such commodity or substance as, butter,, oleomargarine, or under any other name or designation whatsoever, and. irrespective of any representations he may make relative to such commodity or substance,” is not unconstitutional so far as it prohibits the sale of oleomargarine which has been changed by the, addition of coloring matter from its natural white color to the yellow color of butter, even though the seller discloses the true character of the substance at the time of the sale. Quare, whether the provision quoted would be unconstitutional if oleomargarine in its natural state actually looked like dairy-made butter.</p>

Appeal by the plaintiff, Conrad Brand, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 23d day of June, 1903, upon the dismissal of the complaint on the merits at the close of the plaintiff’s case, the defendant’s counsel having stated that he wished to rest on the plaintiff’s testimony.

<p>Delay in deciding, in the second, department, appeals from the New York Municipal</p> <p> Court explained. </p> <p>The delay of the Appellate Division in the second department, in disposing of appeals, involving questions of fact, from judgments of the Municipal Court of the city of New York, declared to be due to the fact that the appellate court is provided with but a single copy of the appeal papers, thus preventing all the members of the court from working upon the case at the same time.</p>

Appeal by the defendant,. William. Brown, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, Edward Watkins, entered on the 2d day of June, 1903.

<p>'Damages for a breach of contract — refusal of a stable Iceeper, in violation of a contract, to admit a truck into his stable — if the truck is left in the street and goods are stolen there from the truckman cannot recover the value of the goods—proof of value.</p> <p>The damages recoverable upon a breach of contract are such only .as follow naturally and directly from the violation of the agreement, and do not include those which could have been prevented by the exercise of reasonable care by the injured party.</p> <p>A truckman entered into a contract with the keeper of a boarding stable, by which the latter agreed to board the truckman’s horses and to store in his stable at night the truckman’s trucks. At the time of entering into the agreement, the stable keeper said that he would be responsible for all the truckman’s goods that went into the stable on the trucks.</p> <p>On one occasion the stable keeper refused to receive into the stable a loaded truck driven by one of the truckman’s servants, whereupon the driver of the truck left it unguarded in the street for some hours, during which time a case of clothing was stolen from it.</p> <p>Held, that the truckman was not entitled to recover from the stable keeper the value of the stolen case of goods, as the theft was not a natural and direct consequence of the breach of the contract, and could have been prevented by the exercise of ordinary care on the part of the truckman and his servants;</p> <p>That the truckman’s servant having been excluded from the stable could properly have taken his truck elsewhere for shelter and the stable keeper would have been chargeable with the reasonable expense of his so doing, or, if no stable accommodations were obtainable, the stable keeper would probably be chargeable as damages with the cost of providing a watchman for the truck;</p> <p>That, even if the value of the stolen case of goods were the proper measure of the truckman’s damages, proof that the truckman paid to the firm owning the case of clothing §106 on account of the loss did not constitute competent proof of the actual value of the goods.</p>

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 17th day of September, 1903, upon the decision of the court.

<p>Delay in performing a contract for the alteration of a machine — remedy of the: owner of the machine —measure of damages.</p> <p>Where a person, who has entered into a contract with the owner of a machine to-alter it, fails to make the desired alteration within the time limited by the contract, or within a reasonable time if no definite time is specified in the contract,, the owner of the machine is not entitled to recover, as damages for the breach of the contract, the reasonable value of the use of the machine during the time that the delay continues, unless it appears that such a measure of damages was within the contemplation of the parties at the time the contract was made.</p> <p>In such a case the owner of the machine, if dissatisfied with the delay, should. inform the other party thereof and have the work done elsewhere.</p> <p>Semble, that the measure of damages was the cost of having the work done elsewhere.</p>

<p>itebt for liquor sold on credit to be drunk on the premises — an action will not lie to enforce it or a promissory note given therefor.</p> <p>A recovery upon a promissory note made by the defendant to the order of the plaintiff, and given in payment for liquors sold on credit to the defendant’s son to be drunk upon the premises of the plaintiff, is-proliibited by section 32 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) which-provides: “ No recovery shall be had in any civil action to recover the purchase price of any sale on credit of any liquor to be drunk on the premises where the same shall be sold. All securities given for such debts shall be void.”</p> <p>Such an action is, in effect, both an action to recover the purchase price of the liquor within the meaning of the 1st sentence of the section, and an action on a security given for the debt so contracted.</p>

<p> Evidence—a witness, not testifying as an expert, may not state a conclusion without testifying to the fads on which it rests. </p> <p>A witness will not be allowed to testify to conclusions of fact without disclosing" the circumstances upon which those conclusions are founded, except as to matters, in regard to which opinion evidence is admissible, or where the facts upon which the conclusions are based are such as cannot be distinctly stated so-as to be within the grasp and comprehension of the jury.</p> <p>In an action in which the court charged that the defendant, the American Distributing Company, could not be held liable unless the defendant, the Eastern- . General Bonded Warehouse Company, was its mere creature or agent, it is error to allow a witness to testify that “The American Distributing Company control the Eastern General Bonded Warehouse Company,” where the witness- • does not state a single fact upon which such conclusion is based.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 5th day of January, 1903, upon the verdict of a jury for $10,500, and also from an order entered in said clerk’s office on the 12th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the City of Mount Vernon, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 22d day of September, 1902, upon the verdict of a jury for $800, and also from an order entered in said clerk’s office on the 17th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Eliza Jane Smith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of • the clerk of the county of Kings on the 16th day of March, 1903, upon the verdict of a jury for $750, and also from an order bearing date the 12th day of March, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Joseph McDermott, 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 10th day of January, 1903, as amended by an order entered in said clerk’s office on the 11th day of February, 1903, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s evidence upon a trial at the Kings County Trial Term.

Appeal .by tbe defendant, The Brooklyn Heights Railroad Company, from á judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of April, 1902, upon the verdict of a jury for $4,200, and also from an order entered in said clerk’s office on the 21st day of April, 1902, denying the defendant’s motion for a dismissal of the complaint.

Appeal in each of the above-entitled actions by the respective plaintiffs, Mary F. Cox and William R. Cox, from a judgment of the Supreme Court in each action in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of December, 1900, upon the dismissal of the complaint in each action by direction of the court, at the close of the plaintiff’s evidence,, upon a trial at the Kings County Trial Term.

<p>Appeal by the plaintiff, The, City of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of September, 1903, denying the plaintiff’s motion for an injunction pendente lite.</p>

<p>Appeal by Mathan L. Miller, as Comptroller of the State of Mew York, from an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 6th day of July, 1903, vacating a previous order, entered in said Surrogate’s Court, assessing a transfer tax upon the estate of Joseph L. Lowry, deceased, and remitting the appraiser’s report to said appraiser for revision and correction.</p>

Appeal by the defendant, School District No. 15 of the Town of Cortlandt, and by Edward D. Beliefeuille and others, individually, and as and constituting the board of trustees of said school'district, from an order made by the county judge of Westchester county, bearing date the 14th day of September, 1903, and entered in the office of the clerk of the county'of Westchester charging a portion of the account of the claimant upon said school district pursuant to sections 5, 6…

Appeal by the defendants, Michael F. McDermott and William J. Howard, a copartnership doing business under the name and style of McDermott & Howard, 'from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, entered on the 4th day of August, 1903.

<p>Appeal by the defendant, the United States Wood Preserving Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, entered on the 27th day of July, 1903, and also fro'm an order denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, William W. Relyea, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 11th day of November, 1902, upon the decision of the court rendered after a trial at the Orange Special Term.</p>

Appeal by the plaintiff, Joseph Rosin, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 9th day of September, 1903, dismissing the plaintiff’s complaint, and also from an order entered on the 9th day of September, 1903, denying the plaintiff’s motion for a new trial.

<p>Written agreement settling a strike of •employees and providing for an arbitration committee — an employee, working by the week, cannot recover for three days’ work by showing that the employer did not pay certain money agreed to be paid — he is bound first to resort to the arbitration—parol evidence to vary the written agreement is incompetent — qusere as to the validity of such an agreement.</p> <p>In action to recover for work, labor and services performed on the 9th, 10th and 11th days of March, 1903, by the plaintiff and his assignors, in the defendants’ factory, it appeared that the plaintiff and his assignors were employed by the week. In order to establish a legal excuse for not continuing to work during the entire week the plaintiff gave evidence tending to show that prior to February 28, 1903, a strike existed in the defendants’ factory; that upon that day the walking delegates of a labor union entered into a written agreement with the defendants providing that the striking employees should return to work in a body; that the defendants should pay them one-half day’s pay for Lincoln’s birthday and one week’s pay for lost time, and that all future difficulties should be settled by a court of arbitration.</p> <p>It further appeared that, pursuant to the agreement, the striking employees returned to work and the defendants paid them the one-half day’s pay for Lincoln’s birthday and one-half, of the week’s pay for lost time, and that, because of the defendants’ failure to pay the remaining half of the week’s pay for lost time, the employees quit work in the middle of the second week after they had returned to work.</p> <p>Held, that the failure of the defendants to pay the remaining half of the week’s pay for lost time did not, in the absence of any effort on the part of the employees to resort to the arbitration committee provided for in the agreement, constitute a legal excuse for leaving the defendants’ employ in the middle of the week;</p> <p>That parol evidence, that the plaintiff and his assignors had reserved the right in the written agreement to renew the strike in the event of the money not being paid, tended to vary the terms of the written agreement and was inadmissible. Quare, whether the contract was in accord with public policy or was binding upon the defendants.</p>

Appeal by the plaintiff, William P. Wnest, 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 22d day of January, 1902, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the plaintiff, Jennie Quinlan, as administratrix, etc., of William J. Quinlan, deceased, from a judgment of the Supreme-Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 24th day of June, 1903, upon, the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of July, 1903, denying the plaintiff’s motion for a new trial made upon the minutes, t

Appeal by -the plaintiff, Thomas P. Pritchard, 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 24th day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial’ Term.

'Appeal, by the defendant, Harri M. Howell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of the county of Suffolk on the 25th day of October, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17th day of November, 1902, denying the ■defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Harry W. Bell, from a judgment of the County Court of Kings county in favor of the defendants, entered in the office of the clerk of the county of Kings on the 9 th day of January, 1902, upon the dismissal of the complaint by direction of the court after a trial before the court and jury.

<p>A check given in New York and purchased by a bank in Kansas seven days after its' date — the purchaser is not put on inquiry—a breach of warranty on the sale of chattels for which a check is given—it does not constitute a defense to the check— the bringing of a suit by a foreign bank is not doing business in the State of New York.</p> <p>In the absence of any evidence of bad" faith it cannot be said that a check dated in a suburb of New York city June 1, 1900, and sent in the course of business to the State of Kansas, where it arrived on June 8, 1900, and was purchased by a Kansas bank in good faith and for value, was overdue to such an extent as to put the bank upon inquiry or raise any presumption that it knew of any defense existing between the original parties.</p> <p>The fact that the bank purchased the check, instead of receiving it on deposit for collection, is not evidence of a deviation from the usual lawful course of business such as will justify a conclusion of bad faith on the part of the bank.</p> <p>Where a vendee of chattels gives his check in payment therefor, the breach óf a warranty accompanying the sale of the chattels does not constitute a defense, available to the vendee in an action brought upon the check by a person who innocently purchased it for value.</p> <p>A foreign banking corporation may maintain an action in the courts of the State of New York to recover upon a negotiable instrument without filing the instrument in writing required by the Banking Law (Laws of 1892, chap. 689) as a condition of doing.business within the State of New York, as the mere bringing of such an action does not constitute doing business wi-thin the State of New York.</p>

Appeal by -the plaintiff, John F. Lynch, 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 11th day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term. ,

Appeal by the defendants, George E. Hertz 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 Suffolk on the 29th day of September, 1902, upon the verdict of a jury, and also from an •order entered in said clerk’s office on the 26th day of September, 1902, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the relator, the Mew York and Richmond Gas Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 5th day of May, 1903, denying the relator’s motion for an alternative writ of mandamus.

<p>Certiorari issued out of the Supreme Court and attested on the-9th day of April, 1903, directed to Francis Y.. Greene, police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the dismissal of the relator as captain of police of the police' department of the city of New York.</p>

Appeal by the plaintiff, George Ricker, from an interlocutory judgment of the Supreme Court in favor of the defendant May L. Shaler, as administratrix, etc., of Ira A. Shaler, deceased, entered in the office of the clerk of the county of Queens on the 23d day of February, 1903, upon the decision of the court, rendered after a trial at the Queens County Special Term, overruling the plaintiff’s demurrer to the second separate defense in the respondent’s amended answer.

■ Appeal by the defendant, Thomas F. Adams, 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 23d day of May, 1903, denying the said defendant’s motion to open his default ancl to restore the case to the calendar.

Appeal in the first above-entitled action by the plaintiff, Emily Keefuss, from a judgment of the Supreme Court in favor of the-defendants in said action, entered in the office of the clerk of the-county of Richmond on the 30th day of April, 1902, upon the decision of the court rendered after a trial at the Richihond Special Term dismissing the plaintiff’s complaint upon the merits. Appeal in the second above-entitled action by the defendants,.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the •31st day of January, 1903, upon the verdict of a jury for $1,500.

Appeal by the plaintiff, Jennie B. Davis, from a judgment of the Supreme Court in favor of the defendants, entered in the office -of the clerk of the county of Westchester on the 18th day of December, 1902, upon the verdict of a jury rendered by direction of the -court, and also from an order bearing date the 16th day of December, 1902, and entered in said clerk’s office, denying the plaintiff’s .motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Helen Baruth, as administratrix, etc., of David Baruth, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 24th day of February, 1903, 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 plaintiff, Morris Weintraub, as administrator, etc., of Libby Weintraub, deceased, 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 10th day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of March, 19,03, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The McCall Company, from a judgment of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 18th day of December, 1902, upon the verdict of a jury in favor of the plaintiff, and also from an order entered in said clerk’s office on the 6th day of January, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Calvin Mengle, 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 18th day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 23d day of March, 1903, denying the plaintiffs motion for a new trial made upon the minutes.

<p>Negligence — assurance of safety implied from allowing a passenger to ride on the running boa/rd of an overcrowded street car — what proof justifies a recovery because of a passenger being tlvrown therefrom.</p> <p>A street railway company, which permits passengers to stand upon the platforms or running hoards of overcrowded cars, gives an implied assurance that such places are reasonably safe, and must exercise a corresponding duty to so operate the cars as to maintain such a condition of safety.</p> <p>Evidence that a person who boarded an overcrowded street car and ro(de on the running board thereof with his back to the body of the car, holding by the stanchions on either side, and that, during the course of the journey the car, coincident with an acceleration in its speed, gave a sudden and violent jerk, throwing .the passenger to the ground, causing him to be run over and killed, . is sufficient to sustain a recovery against the. street railway company of the damages resulting from the death of such passenger.</p>

<p>Appeal by the defendants, The Brooklyn Heights Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of February, 1903, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 19th day of February, 1903, denying the said defendants’ motion for a new trial made upon the minutes.</p>

<p>Copartnership neme, assumed by a corporation with intent to acquire part of the business and prevent the incorporation of the copartnership — equity will restrain the corporation from, so doing.</p> <p>In the summer of 1901 a copartnership, engaged in the borough of Manhattan in the sale and installation of electric clocks designed to register the presence and movements of watchmen, filed a certificate, pursuant to section 363b of the Penal Code, setting forth its intention to do business under the name of the “American Watchman’s Clock Company,” and has since carried on business under that name.</p> <p>In May, 1902, the copartners executed the necessary papers for the formation in the State of New York of a corporation under the name which had been assumed by them. Before this purpose could be effected, other parties formed a corporation in the State of New York under the name which the copartners had adopted. This corporation was organized for' the sale and installation of watchmen’s clocks, and the selection of the corporate name was made with a view of obtaining a portion of the copartnership business and of appropriating the copartnership name and of preventing the copartnership from incorporating in the State of New York under that name.</p> <p>Held, that a court of equity had power, at the suit of the copartnership, to enjoin the corporation from doing business under such corporate name.</p>

Appeal by Grenville Kane and another, individually and as executors, etc., of Christopher Wolfe, deceased, from an order of the Surrogate’s Court of the county of' Orange, entered in said Surrogate’s Court on the 5th day of August, 1903, affirming upon appeal an order entered in said Surrogate’s Court on the 15th day of June, 1903, assessing a transfer tax upon the estate of said decedent.

<p>Appeal by the petitioner, James Cusack, 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 17th day of July, 1903, denying the petitioner’s motion for a peremptory writ of mandamus to compel his appointment as the principal of an evening high school in the borough of Brooklyn.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 5th day of May, 1903, upon the decision of the court.

<p> Negligence—charge that a railway company is not liable to a passenger who attempts to board a car after a signal has been given to start it, held to have been properly refused. </p> <p>In an action brought to recover damages for personal injuries the plaintiff gave evidence tending to show that, while she stood on the lower step of the defendant’s car attempting to board it, the conductor commanded her to take another car and at-the same time shoved her so that she fell against the dashboard and received injuries.</p> <p>The car was standing still, but the conductor testified that he had previously given the signal to start, and that,' for some undisclosed reason, the motorman had not responded thereto. The car was not full and there was nothing in the appearance of things which would indicate to the plaintiff that she would not be received as a passenger.</p> <p>Held, that the court properly refused to charge the jury “ that if they find that she tried to board the car after the conductor had given the signal and just before the car started in response to that signal, why then the defendant is not liable, and their verdict must be for the defendant.”</p> <p>Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on "the 24th day of February, 1903, upon the verdict of a jury.</p>

Appeal by the defendant, Sarah Krellman, from a judgment of the Municipal Court of the city of New Vork, borough of The Bronx, in favor of the plaintiff, entered on the 18th day of September 1903, upon the decision of the court.

Appeal by the plaintiff, George Spor, from a judgment of the. Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 17th day of April, 1903,, dismissing the plaintiff’s complaint.

Appeal by Emile R. Lattan from a decree, of the Surrogate’s ■ Court of the county of Kings, entered in said Surrogate’s Court on the 9th day of August, 1902, confirming the report of a referee appointed in the proceeding, rejecting the appellant’s claim.

<p>Negligence — injury from, the falling of a temporary arch used in the construction of a building — the master is not liable for its fall from neglect in setting or in the workmen’s use of it — the rule of res ipsa loquitur does not apply—it is not a scaffold or place or appliance — it is while in place a component part of the building.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the defendant was engaged in the construction of a building and that the plaintiff was employed in putting in for the defendant terra cotta arches between the floor beams; that in building the terra cotta arches, temporary arches made of Iron ribs were employed. While the plaintiff was standing upon one of the temporary arches, engaged in setting terra cotta bricks upon it, the temporary arch, for some undisclosed reason, fell with him to the floor below.</p> <p>The temporary arches used in the work were of a pattern which had been in use for many years and had been set in the work by experienced men. They were furnished to the defendant by an apparently reputable and responsible independent-contractor under a contract which required the contractor to set them in the building.</p> <p>There was no evidence of any structural defect in the. arch which fell and there was some evidence that it had been securely set. Some evidence was given, however, tending to show that it was the practice of the defendant’s workmen, for convenience in doing their work, to knock aside the hangers of the temporary arch and thereby diminish ■ the extent of its bearing upon the beam ■flange.</p> <p>A scaffolding was furnished on each side of the arch for the workmen to stand upon, but the men were in the habit of standing upon the temporary arch, instead of upon the scaffolding, while laying the terra cotta bricks because the work could be more easily done in that way than from the scaffolding.</p> <p>Held, that a verdict was properly directed for the defendant;</p> <p>That if the fall of the arch was occasioned by some negligence in the act of setting it in the first place, or by some act of the defendant’s workmen in dealing with it after it had been set, such negligence would not be chargeable to the defendant, in the absence of proof that it resulted from incompetent or from an insufficient number of servants;</p> <p>That the rule of res ipsa loquitur did not apply, as this rule can, as between master and servant, be invoked only where the facts not only warrant an inference of negligence, but also establish that such negligence was that of the master;</p> <p>That the temporary arch was not a scaffold within the meaning of section 18 of the Labor Law (Laws of 1897, chap. 415).</p> <p>Semite, that the temporary arch could not properly be considered as either a place or appliance furnished by the defendant,, but, while it remained in place, should be regarded as a component part of the building.</p>

Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 31st day of March, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term.

<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 Westchester on the 20th day of February, 1903, upon the verdict of a jury for $17,000, and. also from an order entered in said clerk’s office on'the 5th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence — injury to a policeman, attempting to save a woman and child,, from being run'over by a fire patrol wagon — contributory negligence — an act giving ,the right of way in the streets of Brooklyn ” does not relieve the fire patrol from the duty of exercising care.</p> <p>In an action brought against the Fire Insurance Salvage Corps of Brooklyn, Long Island, to recover damages for personal injuries, it appeared that the plaintiff, a policeman, was, while on duty, knocked down and run over by a fire patrol wagon of the defendant on its way to a fire at seven o’clock on an August evening.</p> <p>The plaintiff gave evidence tending to show that he was struck while endeavoring to save a woman and child from being knocked down by the fire patrol wajfon. The wagon was being driven as fast as the horses could gallop and no attempt was made to slacken their speed until the collision was im'minent. The servants in charge of the wagon could have seen the plaintiff.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;</p> <p>That it was not contributory negligence, as matter of law, for the plaintiff to expose himself to danger in an attempt to protect the woman and child;</p> <p>That the act incorporating the defendant, conferring on it “the right of way in the streets of Brooklyn” (Laws of 1895, chap. 1016, § 2), did.not absolve it from liability for negligence, or relieve it from the duty 'of exercising reasonable care, or of acting with a due regard for the life and limbs of those who niight lawfully be upon the streets at the time of a fire.</p>

Appeal by the defendant, The 'New York Central and Hudson River Railroad Company, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of - November, 1902, upon the verdict of a jury for $770, and also from, an order entered in said clerk’s office on the 6th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Augustine J. Powers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Marianne H. Gaming, from a judgment of the Supreme Court in favor of the plaintiff, entered in the-office of the clerk of the county of Putnam on the 31st day of May*. 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office, on the 18th day of .June, 1902, denying the: defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Ellen M. Bray, as administratrix, etc., of John Bray, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county ot Kings on the 8th day of December, 1902, upon the decision of the court rendered after a trial at the Kings County Trial Term, a jury having been waived.

<p>Appeal by the defendant, the Cook & Bernheimer Company, from a. judgment of the Supreme Court in favor of the plaintiff and the defendant, Frank L. Entwisle, as trustee of the estate of James M. Connelly, entered in the office of the clerk of the county of Kings on the 12th day of. September, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term,. arid also from an order entered in said clerk’s office on the 4th day of September, 1902, denying the appellant’s motion for a new trial made upon the minutes, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 13th day of December, 19Ó1, denying the said appellant’s motion to dismiss the plaintiff’s complaint, and also an order entered in said clerk’s office on the 29th day of March, 1901, permitting the defendant, Frank L. Entwisle, as trustee of the estate of James M. Connelly, to be brought in as a party defendant in this ,action.</p>

<p> Will—an attestation clause is not essential—sufficiency of one—testimony as to a testator having signed after the witnesses—the attending lawyer,- when competent to so testify. </p> <p>An attestation clause is not essential to a will.</p> <p>Quarre, whether the following attestation clause.attached to a codicil to a will, “ Signed, sealed, published and declared by the said testator Benjamin L. Cornell to be a Codicil to his last Will and Testament and we thereupon at his request and in his presence and in the presence of each other have signed our námes as witnesses this seventh day of JÍay, 1900,” sufficiently shows that the testator signed prior to the subscribing witnesses. ■</p> <p>Where one of the subscribing witnesses to the codicil testifies that the testator subscribed to the instrument after the witnesses, but subsequently qualifies his testimony by stating, “I am not sure about that; I think he signed it after-wards,” and the other subscribing witness and the attorney who supervised the execution of the will testify positively and explicitly that the testator subscribed first, the codicil may properly be admitted to probate.</p> <p>The lawyer who supervises the execution of a codicil is competent, at least when, called to the stand by the proponent, the sole executor of the testator, to testify to the transactions occurring at the time of its execution.</p>

Appeal by the plaintiff, George J. McKenzie, 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 11th day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 17th day of February, 1903, denying the plaintiff’s motion for á new trial made upon the minutes. '

Appeal by the defendant, Woodbury Lowery, 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 December* 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of December, 1902, denying the defendant’s, motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Charles T. Saxton, Lieutenant-Governor, and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county , of Kings on the 8th day of May, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, declaring certain assessment and tax sales to be void.</p> <p>This action was brought to cancel certain tax sales of land, owned by the plaintiff, and to set aside conveyances executed by the State Comptroller to the People of the State of New York pursuant to. such tax sales; i</p>

Appeal by the plaintiff, Samuel Moskowitz, 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 17th day of June, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Joinder of causes of action — where a com/plaint ashing for an accounting alleges one ■ primary, right and one subject of action, the distinction between liability in & representative and in an individual capacity is immaterial — what causes of action are properly joined — in equity all the carnes of action need not affect dll the parties in the same way.</p> <p>In an action brought by Cornelia H. B. Rogers against Philip H. Wheeler and John H. Stoddard, individually and as executors, etc., of Lucy E. Stoddard and John W. Sweeney, as executor, etc., of George S. Wheeler, it appeared from the complaint that Samuel T. Rogers, the plaintiff’s predecessor, and A. S. Wheeler made a written contract by which Wheeler agreed to invest the moneys of Rogers in realty sold for unpaid taxes,, to do all the business connected with the purchase and management of the property and to pay semiannually to Rogers a proportion of the interest, retaining the balance thereof as his compensation. The contract was made binding upon Wheeler’s executors, administrators and assigns.</p> <p>Upon the death of A. S. Wheeler, which occurred after the interest of Rogers had passed to the plaintiff, George S. Wheeler was appointed his executor-Nancy B. Wheeler, the wife of A. S. Wheeler, as his assignee and as his legatee and devisee, received the property, business and assets in question, and in such capacity, and also by her own individual agreement with the plaintiff, carried on the business under the original contract.</p> <p>Upon her death the said George S. Wheeler became her executor, and as such, and by virtue of his own individual agreement, he carried on the business under the original contract. Upon his death, Lucy E. Stoddard succeeded him as executrix of Mrs. Wheeler, and as such, and by her individual contract, she carried on the business. Upon the death of Lucy E. Stoddard the defendants John H. Stoddard and Philip H. Wheeler became her executors, and as such and by virtue of their own individual agreement, carried on the business.</p> <p>The relief demanded was an accounting for the fund.</p> <p>' Meld, that the agency created by the contract involved elements of trust and confidence beyond those incident to cases of naked agency and justified the ■ maintenance of an action in equity for an accounting;</p> <p>That, as the facts alleged showed one primary right, namely, that to an accounting for the fund, and one wrong done by the defendants, namely, the failure to account for it after having it in their charge, the complaint did not state more than one cause of action;</p> <p>That the distinction between liability founded upon the obligation of the defendants in their representative capacities and upon their individual agreements was not material;</p> <p>That, assuming that the complaint stated more than one cause of action, the causes of action arose.out of transactions connected with the same subject of action and might be united under subdivision 9 of section 484 of the Code of Civil Procedure;</p> <p>That, admitting that causes of action were stated against the defendants individually and in their representative capacities, the causes of action having arisen out of transactions connected with the same subject of action, might be joined under section 1815 of the Code of Civil Procedure;</p> <p>That the action being one in equity, it was not necessary that the causes of action should affect all of the defendants to the same extent or in the same way.</p>

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Municipal Court of the •city of Ííew York, borough of Queens, in favor of the plaintiff, •entered on the Yth day of April, 1903. ' ■ The action' was brought to recover penalties for. violations of the following ordinance of the city of New York: “ Section 1.

<p>Constructive eviction — declarations of a janitor that he thought an odor came from a vent pipe — scope of a janitor’s authority—when the odor does not relieve the tenant from paying rent</p> <p>Declarations made by a janitor of an apartment house, to a tenant of one of the apartments, that he “thought” that an odor, which had at times penetrated to ■the tenant’s apartments, was due to the shortness of a certain vent pipe on the ■outside of the building, are inadmissible to establish a constructive eviction for the reason that they rest on an inference by the janitor. tSemble, that they are further inadmissible, where there is no proof that they were made within the scope of the janitor’s authority.</p> <p>"The fact that' the odor arose from the pipe in question will not defeat the landlord’s claim for rent, where the lease did not contain an express or implied warranty as to the fitness of the apartment for habitation, and no evidence is .given that it became untenantable through any default or wrongful act on the part of the landlord.</p>

Appeal by the defendant, Isaac Rothfeld, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 2oth day of August, 1903.

Appeal by the defendant, the H. W. Johns-Manville Company, from a judgment of the Municipal Court of the city of Néw York, borough of Brooklyn, in favor of the plaintiff, entered on the 29th day of May, 1903.

Appeal by the defendants, Thomas Hears and another, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 5th day of May, 1902.

Appeal by the plaintiff, Edwin P. Merritt, from a judgment of the Municipal Court Of the city of Yew York, borough of Brooklyn, in favor of the defendant William H. Y. Cadmus, as receiver of Samuel C. Pulis, entered on the 11th day of August, 1903.

Appeal by the defendant, The Baltimore and Ohio Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 10th day of July, 1903.

Appeal by the plaintiff, Henry Hieland, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 27th day of May, 1903.

Appeal by the defendant, Isaac A. Silvie,- from a judgment of the Municipal Oourt of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 25th day of September, 1903.

■ Appeal > by the ■ plaintiff, Catherine Nelson, from a judgment of the Municipal Court of the city of New York, borough of Queens, in'favor of the defendant, entered on the 19th day of August, 1903, and also from an order entered on the 19th day of August, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendants, Ella Mayfield and others, from a jtidg-ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Nassau on the 3d day of March, 1903, upon the decision of the court rendered after a trial at the Nassau Special Term, and also from an order entered in said clerk’s office on the 19th day of February, 1903, resettling an order denying the defendants’ motion for a new trial upon the ground of surprise and…

<p>Appeal by the plaintiffs, William E. T. Smith and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Suffolk on the 31st day of May, 1902, upon the report of a referee.</p>

<p>Appeal by the defendant, David Cromwell, substituted in the place of Peter Muller, deceased, as assignee of F. Foehrenbach Company, for the benefit of its creditors, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the County of Westchester on the 17th day of November, 1899, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of January, 1903, upon' the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 23d day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Cross-appeals by the petitioner, The City of New York, and by Annie W. Stephens and others, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 5th day of May, 1903, confirming the report of the commissioners of estimate and assessment in the above-entitled proceeding.

<p>Action for damage to land caused hy driven wells — discovery and inspection of the land hy the defendant —when not authorized hy Code of Civil Procedure, section 1683 — ignorance hy the-defendant of the information sought for must he shown — conditions which the plaintiff may reasonably impose.</p> <p>In an action brought against the city of New York to recover damages for a trespass upon the plaintiff’s realty, committed by establishing, driven wells and pumping stations near the plaintiff’s premises, thus lowering the level of the waters underlying the plaintiff’s land', the defendant obtained an order requiring the plaintiff to permit the defendant to enter upon his real property for the purpose of making a survey of the surface of his premises, boring beneath the surface to ascertain the underground water level and permitting it to carry away samples of the soil.</p> <p>The moving affidavit was made by an assistant corporation counsel of the defendant who had charge of the action. He alleged that from his preparation of the case and by inquiry of and Consultation with the defendant’s officers he was informed and believed that the defendant and its officers had no knowledge by actual experiment or test of the height of the water level prior to or since the construction of the defendant’s pumps and wells.</p> <p>Held, that section 1683 of the Oode of Civil Procedure, which provides a remedy in the nature of discovery or inspection, was not applicable to the case;</p> <p>That, assuming that that section was applicable, the moving affidavit was insufficient, as matter of law, to bring the case within the rule that a party who seeks the benefit of the remedy of a discovery or inspection must show positively that he has no knowledge of the facts proposed to be discovered and has no copies of the papers proposed to be inspected..</p> <p>It further appeared that the attorney for the plaintiff, long prior to the application for the order, offered to allow' the officers of the defendant to bore holes upon the plaintiff’s land so long as they did not interfere with his crops or business and so long as they should be properly protected by the defendant, and to permit it to take measurements of the water in such holes once a day during the prescribed tests and to allow the defendant to take samples from the soil in the plaintiff’s land, the plaintiff, however, imposing the condition that he be furnished with a topographical map which the defendant was about to make, a verified record of the quantity of water pumped on each day for a number of days past and of the number of days that the pumping station was working; that the plaintiff be permitted to go upon the lands of the defendant during the test and inspect the operation of the driven wells and pumping . station, pnd that the defendant cease, for a period of one week, operating a pumping station which was claimed to be the one which interfered principally with the water level of the plaintiff’s property.</p> <p>It was not shown that the conditions imposed by the plaintiff'were unreasonable or were not imposed in good faith.</p> <p>Held, that the order in question should not be granted until it was shown that it was impracticable or unreasonable to require the defendant to comply with the conditions imposed by the plaintiff.</p>

Appeal, by the relator, James .Campbell, 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 13th day of April, 1903, denying the relator’s motion for a writ of peremptory mandamus.

<p>Appeal by the plaintiff, James McGarey, 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 11th day df December, 1902, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff. " "</p>

<p>Appeal by the defendant, William M. Oalder, as superintendent of the bureau of buildings, borough of Brooklyn, city of new York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of September, 1903, granting the relator’s motion for a peremptory writ of mandamus.</p>

<p>Appeal by the -.defendant, the Brooklyn and New York Ferry Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings-on the 5th day of January, 1903, upon the verdict of a jury for $11,000, and also from an order entered in said' clerk’s office on the 5th day of January, 1903, denying the defendant’s motion for anew trial made upon the minutes.</p>

<p>Appeal by the plaintiff, The Astoria Heights Land Company, in behalf of itself and such other persons and corporations similarly situated, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Queens on the 18th day of October, 1902, upon the report of a referee dismissing the complaint upon the merits.</p> <p>Judgment affirmed, with costs, upon the opinion of Hamilton^ Odell, Esq., referee.</p> <p>Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred.</p>

<p>Pleading — a complaint on a guaranty, not alleging the performance of the condition prescribed thereby, is demurrable.</p> <p>R. Forsyth Little, Jr., executed the following instrument of guaranty: “ In consideration of Elmer E. Cooley refraining from entering judgment against Caroline W. Whiton for a period of ten days, I hereby guaranty the payment of the note sued upon in which he is the plaintiff, and Caroline W. Whiton is the defendant, and upon which there is now due the sum of $1,200.00 with interest from November 18th, 1900, and in and for the same consideration, I hereby guaranty to the holder of the note made by Caroline W. Whiton, bearing date the 6th day of July, 1900, for $1,750.00 and interest, payments on the said notes to he made as follows: ”</p> <p>Held, that the complaint in an action brought against Little upon the guaranty to recover the amount of the $1,750 note, which did not allege that Cooley had refrained from entering judgment on the $1,200 note for the ten days provided in the guaranty, was demurrable;</p> <p>That an allegation that the $1,200 note had been paid was not equivalent to an allegation of compliance with the condition respecting the refraining from the entry of judgment.</p>

<p>Tenement Souse Act—replacing school sinks by water closets — the requirement is constitutional — what will be considered in determining whether an act is constitutional.</p> <p>Section’100 of the Tenement Hquse Act (Laws of 1901, chap. 334, as amd. by Laws of 1902, chap. 352,. § 47), requiring school sinks in tenement-houses in- the city of New York to be replaced by individual water closets, is a reasonable' and proper exercise of the police power vested in the Legislature and is constitutional.</p> <p>In determining the constitutionality of the act the court is limited to a consideration of. the law itself considered in the light of the facts of which the court can take judicial notice.</p> <p>The fact that the changes required by the statute in a tenement house, valued at §16,500 and in which the owner’s equity is $3,500, will necessitate an expenditure of from §750 to $2,800, does not affect the constitutionality of the act as. to such owner.</p>

<p>Appeal by the plaintiff, Shepard N. Edmonds, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of June, 1903, upon the decision of the court, rendered after a trial at the New York Special Term; overruling the plaintiff’s demurrer to one of several separate defenses contained in the defendants’ amended answer.</p>

<p>Transfer to a corporation of the assets of an association in the hands of receivers— order approving the transfer, by the terms of which the directors of the association were released from all personal liability — an action to set aside the order, so far only as the release was concerned, cannot be maintained.</p> <p>A stockholder of a savings and loan association, which had been dissolved and had passed into the hands of receivers, brought an action on behalf of himself and of all other stockholders against the .directors of the association to recover damages sustained by the corporation and the stockholders because of various breaches of trust committed by such directors.</p> <p>It appeared that a corporation known as the Empire State Realty Company, which the complaint alleged “was to all intents and purposes the said defendant directors and represented their interests,’’ had submitted an offer to the receivers of the savings and loan association to purchase the assets (other than cash) in the hands of the receivers for fifty per cent of their hook cost value;, to assume and secure the release of the receivers from all indebtedness of the association and to give its bonds for the balance of the purchase price; to secure the payment of said bonds by a mortgage on all assets transferred, and also by the joint and several bonds of the former directors of the association in the penal sum of $250,000; to allow any shareholder of the association to exchange his stock therein for common stock in the realty company and to provide a cash fund of $175,000 subscribed by its directors for its preferred stock, which cash was to be applied exclusively to the payment of interest and taxes and in otherwise safeguarding the property transferred.</p> <p>The offer provided that the receivers and any shareholder of the association who should make the exchange of stock therein provided for “shall in consideration of said $175,000 and said bond of the directors release said directors from all " claims of personal liability.” '</p> <p>An order was entered authorizing the receivers to accept this offer, and the transfer of the assets was consummated and a release to the directors executed..</p> <p>The complaint in the action was held demurrable on the ground that “ in the absence of fraud and bad faith ” in procuring the order of compromise the plaintiff as a stockholder could not maintain the action while such order remained in force. The plaintiff thereupon amendedhis complaint by asking foi a modification of the order of compromise by eliminating therefrom the provision for the release of .the defendant directors from liability. He alleged, as the basis for such, modification, that the receivers failed and omitted to present to the court any of the facts and circumstances tending to establish the liability of the defendants and were led to so fail and omit by the acts of the defendant directors and of the realty company which had been organized by the defendants.</p> <p>It was also alleged that the defendant directors, by false and fraudulent representations, induced the receivers to believe that they were men of limited means and could not be made to respond fully in damages; that such representations were false and were made with intent to deceive and were relied upon by the receivers.</p> <p>Held, that an action could not be maintained to set aside that portion of the order which secured to the defendant directors the only advantage which they, indi- . vidually, secured thereunder, and leave in force the provisions of the order, advantageous to the receivers, for the benefit of the plaintiff and his costockholders.</p>

Appeal by the defendants, Frederick Holbrook and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 3d day of August, 1903, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an interlocutory judgment entered in this action on the 1st day of July, 1902, upon a remittitur from the Court of Appeals; also an appeal from an order made at the New…

Appeal by the plaintiffs, Thomas C. Chapman and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1903, denying the plaintiffs’ motion to discontinue the action as against certain of the defendants, and to amend the summons and pleadings by striking therefrom the names of such defendants.

Appeal by Addie Egan, as executrix, etc., of Patrick Henry Egan, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 29th day of October, 1903, directing the said executrix to file her accounts.

<p>Negligence—the use of single-cap molding in the electric wiring of a building — measure of the contractor's duty.</p> <p>A corporation employed to wire a building intended to be lighted by electricity assumes no obligation to furnish the best materials or to use the best method, and does not insure that the wires will continue for any definite or' indefinite period to transmit safely the electric current. Its sole obligation is to use the care and skill ordinarily used by those engaged in like undertakings, and it is only for a failure to perform this duty that it can be held liable.</p> <p>What evidence is insufficient to warrant a finding that the corporation, in using single-cap molding instead of double-cap molding for affixing the electric wires to the ceiling of the top floor of the building; when viewed in the light of the way in which the business of electric wiring was ordinarily practiced and understood by those conversant - with the art at the time the corporation performed the work, was guilty of negligence, but, at most, only tends to establish an error of judgment on the part of the corporation in respect to a matter upon which experts differed, considered.</p> <p>Hatch, J., dissented.</p>

Appeal by tbe defendant, James A. Campbell, 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 Hovember, 1903, denying the said defendant’s motion for leave to serve an amended answer, or to withdraw his answer and serve a demurrer to the complaint.

Appeal by the plaintiff, Walter S. Weldon, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 5th day of November, 1903, granting the defendants’ motion to strike the case from the calendar of the Trial Term upon the ground that the action is in equity.

■ Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 21th day of June, 1903, upon the verdict of a jury for $225, and also from an order entered in said clerk’s office on the 23d day of June,' 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Street Railway 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 23d day of November, 1903, denying the defendant’s motion to open its default and to restore the case to the trial calendar.

Appeal by the plaintiff, Abraham Chinchín, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of June, 1903, striking the cause from the Special Term calendar.

<p>Negligence—verdict in an action for injuries in favor of a practicing physician of $12,000 held to be excessive.</p> <p>When a verdict for $12,000 rendered in an .action brought by a practicing ' physician to recover damages resulting from an injury to his leg caused by the alleged negligence of the defendant, is excessive and the judgment entered thereon should be reduced to the sum of $7,788.58, considered.</p>

Appeal by the defendants, The New York Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 29th day of ■ September, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Elmer B. Dixon, from a, judgment of the Supreme Court in favor of the defendant Mary M. Bickford, entered in the office of the clerk of the. county of New York on the 5th day of J une, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.