Volume 9 — New York Appellate Division Reports

<p>Decree amendment of, by a court presided over by a judge other than the one who entered it.</p> <p>Where it appears that the person to whom premises are directed to be conveyed by a decree had assigned her interest therein before the making of such decree, it is improper for the court, although presided over by a judge other than the one who entered the decree,, to refuse (in the absence of objection by parties having an adverse interest) to amend such decree by directing the premises to be conveyed to the grantee of such person.</p> <p>Van Brunt, P. J., dissented upon the ground that there was no power in the court to amend, in a substantial particular, a decree entered by the direction of another judge and that in the present case the application was unnecessary.</p>

<p>Common ca/nrie/r- — limitations as to liability in bills of lading — time for commencing a/n aetion for damages because of injury to goods shipped—three months is-reasonable— a delay of neaniy three years is fatal.</p> <p>A limitation contained in >a bill of lading, to the effect that the carrier shall not be liable for any loss sustained “ unless written claim for the loss or damage shall be made to the person or party sought to.be made liable, within thirty days, and the action in which said claim shall be sought to be enforced shall be-brought within three months after the said loss or damage occurs,” is a reasonable one, and! a delay of nearly three years in bringing suit for such a loss- is-fatal to the plaintiff’s right of recovery therein.</p> <p>In an action brought by a fire insurance company to recover the amount which it had been compelled to pay as an insurer of certain grain which was destroyed by fire while in possession of the. defendants, it appeared that part of the-grain was received for shipment by the defendants under a bill .of lading-which exempted them from all liability for loss. by fire unless occasioned by their negligence or that of their servants; and that subsequently the bill of' lading, was assigned to- the person to whose rights the plaintiff had succeeded and who owned the grain at the time the loss occurred.</p> <p>Held, that as the plaintiffs claim was derived by subrogation or assignment, it, was subject to any defense that existed against its assignor;</p> <p>That, as the assignor had knowledge of the conditions under which the defendants received and carried freight, and had actually received part of the grain-shipped under such bill of lading, and had directed the rest to be held to await his order, he may be said to have ratified the conditions of the bill.</p> <p>Where a bill of lading provides that, in case of loss or damage of any of the goods named in it for which any carrier under the same would be liable, the carrier shall have the benefit of any insurance by or for account of the owner of such .goods, no cause of action' accrues by subrogation, to an insurance company issuing such policy, nor can one be assigned by the owner of the goods to the insurance company against the common carrier.</p>

Appeal by the plaintiff, William Lord, as executor, etc., of Martha A. Cronin, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 5th day of June, 1895, upon a dismissal of the complaint upon .the merits, directed by the court after a trial at the Rensselaer Circuit,' before the court and a jury on the 3d day of June, 1895, with notice of an intention to bring up for review upon such…

<p>Appeal by the defendant, Simeon S. Gross, from a judgment of the Supreme Ooiirt in favor of the plaintiff, entered in the office of the" clerk of the county of Fulton on the 8th day of October, 1895, upon the report of a referee.</p> <p>The action was to recover for labor performed and materials furnished by the plaintiff in the erection of a hotel building under a contract with the defendant, the owner thereof, which building after the plaintiff had nearly performed his contract was. destroyed by fire; also, for extra work done by the plaintiff thereon at the defendant’s request. The building was a large brick structure, and when ready for the inside carpenter and joiner work, the plaintiff agreed with: the defendant to furnish the materials and do that work for $13,675, seventy-five per cent of the amount to be paid, from time to time as the work progressed,, upon the architect’s certificate, and the balance when the work was fully completed and accepted by the defendant and the architect. The plaintiff commenced performance in March, 1891; the building was destroyed by fire.October 2, 1891, before its completion.</p> <p>The referee found that the fire occurred without the fault of either party. While the plaintiff was engaged in his work, the defendant, by his other contractors and workmen, was also engaged upon other parts of the building. At the time of the' fire and for a considerable time prior thereto, the plaintiff had the keys of the building and kept it closed and locked during the night time, opening it in the morning. There was no agreement in this respect, At the time of the fire the defendant had paid the plaintiff $7,361.93 upon the contract, but the value of the work and the materials furnished by the plaintiff up to that time exceeded that amount. The contract contained no provision respecting the destruction of the building by fire.</p> <p>The referee held that the plaintiff was entitled to recover for the. work and materials furnished in performance of the contract up to the time of the fire at contract prices; also, for his extra work, and directed judgment against the defendant in the sum of $3,241.70, with costs.</p>

<p>Duty of a justice of the peace, in case of the plaintiff’s failure to appeem' on the adjourned day, to render a judgment of nonsuit — what is not a consent by the defendant to an adjournment.</p> <p>The return filed on an appeal from a judgment rendered byn justice of the peace recited that, upon the adjourned day, a person appeared onbehalf of the defendant and stated that the defendant’s attorney had requested him- to appear for him, and if the plaintiff appeared, to secure an adjournment;' if he did not appear, to have the action dismissed.</p> <p>It further stated that a telegram having been received from the plaintiff to the effect that, on account of a severe snow storm, he would .be unable to be present on that day, the justice, on his own motion, no objection being made by the person appearing for the defendant, adjourned the case to a later day, on which day, the defendant hot appearing, the justice took the plaintiff’s evidence and rendered the judgment appealed from.</p> <p>Held, that the judgment was erroneous and should be reversed;</p> <p>That the plaintiff having failed to appear upon the adjourned day, the statute required the justice to render a judgment of nonsuit against him with costs; that the statement made by the person representing the defendant did not constitute a consent to the adjournment.</p>

<p>Ejectment—a vendee cannot dispute the title of Ids vender unless he swrenders possession— his equities and remedies — estoppel—ratification — intestacy presumed'as to real estate—right of a tenant in common to bring ejectment.</p> <p>A person who enters into the possession of land under a contract to purchase it, cannot, without surrendering the possession- thus obtained, attack or disputa the title of his vendor.</p> <p>The purchaser cannot maintain possession and, at the same time, refuse to perform his part of the contract, upon the ground that the vendor cannot give a good title, or that some one else has the title, or that- his own possession has. ripened into an adverse title. • .</p> <p>If the purchaser is in default in his payment and the vendor brings ejectment,, the purchaser may set up any equitable defense which he may have.</p> <p>The purchaser may tender full performance and ask a judgment that the vendor convey to him, or he may show that he defaulted because the vendor was unable to perform, and he may ask that, upon his surrender of possession, the vendor repay him what he has paid, or he may set up any other equity arising -out of the contract.</p> <p>In an action of ejectment the plaintiffs showed a conveyance of the premises in question, from Gouverneur Morris to Lyman Rhoades, William H. Weed and •Charles W. Weed, dated August 1, 1836, but did not show that either Morris or any of his grantees ever had possession of the premises. On January 1, 1857, a written contract of sale of the premises, in which “ Charles W. Weed, assignee, etc.,” was named as party of the first part, was executed to one Collins Barnes, and subsequently one Gideon Freeman, the person under whom the defendants claimed and who had acquired the' rights of Collins Barnes, entered' into possession of the premises under a- contract of sale, also executed by “Charles W. Weed, assignee, etc.” Part of the purchase price' mentioned in both of the contracts executed by Charles W. Weed, assignee, etc., had never been paid.</p> <p>There was no evidence in the case that Rhoades, William H. Weed and Charles W. Weed ever owned the premises as co-partners or that Charles W. Weed had any authority to sell any one’s interest in the premises in question, except his own. The plaintiffs, three of whom were heirs at law of Rhoades, five, heirs at law of William H. Weed and two, heirs at law of Charles W. Weed, failed to prove title in themselves.</p> <p>Held, that none of the plaintiffs could prevail, except those who claimed as descendants of Charles W. Weed. That the words “assignee, etc.,” annexed to the name of Charles W. Weed in the contract of sale, were merely descriptive of the person, and that when he executed the contracts he assumed to act for himself alone, and to convey the whole title;</p> <p>That, therefore, the defendants were not, as to such of the plaintiffs as .claimed under Rhoades and William H. Weed, estopped from setting up title in themselves or in another, hut that they were estopped from setting up such title as to the plaintiffs who claimed under Charles W. Weed, as such persons stood in the position of vendors to Gideon Freeman and the persons claiming under him;</p> <p>That the bringing of the action by .the plaintiffs, other than .those who claimed under Charles W. Weed, could not amount to a ratification of the contracts of sale made by Charles W. Weed, for the reason that, as Charles W. Weed never assumed to contract for their ancestors or for them, there was no contract in existence which they could ratify.</p> <p>It appeared that of the two descendants of Charles W. Weed, one Charles H. Dougliss was a son of a deceased daughter of Weed, who, by her will, devised all her property to the father of Charles H. Dougliss. The father died and left a will, the terms of which were not proved. The other plaintiff, Martha E. Weed, was a daughter of Charles W. Weed.</p> <p>Held, that Charles H. Dougliss had not shown that he succeeded to the title nor to any part of the title which Charles W. Weed had in the premises;</p> <p>That in the case of Martha B. Weed, it must he presumed, in the absence of proof that Charles W. Weed left a will, that he died intestate, and that she inherited her legal share'of his rights in the premises;</p> <p>That, consequently, Martha E. Weed had a right to maintain an action to recover her share of the interest of' Charles W. Weed in the premises; which interest, as agaihstitiie defendants, must be deemed to cover the whole title;</p> <p>That the action was .maintainable by Martha B. Weed as a tenant in common under section 1500 of the Code of Civil Procedure, and that it was erroneous to dismiss! the complaint as against her. ' ■ ■</p>

<p>Appeal by the defendant, Egbert Humphrey, from a judgment of the County Court of Ulster, county in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 20th day of December, 1895, affirming a judgment rendered by a justice of the peace of said county.</p>

<p> Gontenpt—faihwe to obey an order in supplementary proceedings, of the hearing under which but three hours and a half notice was given—reasonable excuses—an order adjudging one guilty of contempt is appealable. </p> <p>Upon an appeal from, an order made in an action adjudging the defendant guilty of contempt, it apiDeared that she lived about three miles from" Saratoga Springs, and that an order was served on her at her residence at half-past ten o’clock in the forenoon of the day, requiring her to appear before a referee in supplementary proceedings at two o’clock in the afternoon of the same day in Saratoga Springs. Her husband and son had left the house early in the morning, and the son had with him the-horse which the defendant was in the habit of driving, and the only single wagon which she could use, and her condition of health was such as to make it unreasonable to require her to walk three miles. Held, that it was erroneous to adjudge her to be guilty of contempt in having failed to appear;</p> <p>That under the circumstances the notice given her of the examination was not sufficient;</p> <p>That an order adjudging her guilty of contempt was appealable, under section 1856 of the Code of Civil Procedure, and that section 2483 of the Code of Civil Procedure was not applicable to it.</p>

Appeal by the plaintiff, Robert Wallace, from a judgment of the Supreme Court, in favor of the defendants, entered in the office of the clerk of the county of Queens on the 13th day of February, 1896,. upon the decision of the court rendered after a trial at the Queens County Special Term dismissing the plaintiff’s complaint.

<p>Warehouseman liable only for negligence — burden of proof in the case of his failure to return goods — collapse of a warehouse while being repaired, after a fire..</p> <p>A -warehouseman, in the absence of bad faith, is liable only for negligence.</p> <p>The general rule is that the burden of proof remains where the issue made by the pleadings places .it.</p> <p>A failure upon the part of a bailee to deliver to a bailor his property, on demand, raises a presumption of liability, but this presumption is prima facie only, and may be overcome by evidence; and where it appears that the loss was caused by some accident, the onus rests upon the bailor to prove that such accident was caused by the want of care upon the part of the bailee.</p> <p>While a carpenter was engaged under a contract with a bailee in removing certain damaged beams and timbers from a warehouse in which a fire had occurred, and replacing them with new ones furnished by the bailee, the building collapsed and certain goods held therein on storage were damaged.</p> <p>In an action brought by the owner of such goods against the bailee to recover for such damage, the court.charged the jury: “The burden is on the .defendant, who has concededly failed to return these goods or a portion of them, to satisfy you by a fair preponderance of evidence that he acted in regard to these goods, or dealt with them, as a prudent man would deal with his own property.” '</p> <p>Held, that although the plaintiff had made out aprima facie case when he proved the defendant’s failure to deliver the goods on demand, yet as the basis of the plaintiff’s cause of action was the defendant’s negligence, the burden of proving such negligence rested upon the plaintiff throughout the trial, and that the charge was, therefore, erroneous.</p>

<p>Injuries caused by falling upon an icy sidewalk—proof as to the cause of the injuries — proof of the adoption by a municipality of land as a public street — excessive verdict.</p> <p>In an action brought against a municipal corporation to recover the damages resulting from personal injuries caused by the plaintiff having fallen upon ice, which had been permitted to accumulate and remain upon a sidewalk in its city, the clerk of the defendant testified that the street upon which was the walk in question, had never been opened or accepted by the defendant; that no grade line had ever been established thereon by the defendant, and that although a portion of it had been flagged,- that work had not been done by the defendant. It was shown, however, that there had been a public user of . the street in question for over twenty years, and that during the winter in which the plaintiff was injured the city had employed men to clean the street, and that notices had been served on the owner-of the property, where the accident occurred, to clean the sidewalk.</p> <p>Held, that there was sufficient proof that the defendant had adopted the street in question as a public street, assumed authority over it, and recognized its obligation to exercise some degree of care over it.</p> <p>Upon the trial the plaintiff’s son, who had made measurements five days after the accident, and had sworn that the condition of the sidewalk in question was the same then as it was at the time of the accident, testified, without objection, ■ to the thickness' of the ice upon such walk. Subsequently a witness, who. hack seen the former witness make the measurements in question, was permitted, against the defendant’s objection, to describe how such measurements were made.</p> <p>Held, that as no suggestion was made upon the trial that the place which the witness had examined was not the place at which the accident occurred, and as no objection was taken to the principal testimony upon that point, no error could be assigned because of the admission of evidence in confirmation thereof. The defendant further alleged that the plaintiff had failed to prove by specific statements that the ice and snow on the sidewalk were the cause of the accident.</p> <p>Held, that the testimony of eye witnesses of the accident as to the slippery and uneven condition of the sidewalk tended strongly to show that the accident was due to that cause; and that the question whether the plaintiff herself in any way contributed to the injury was properly left to the jury;</p> <p>That as the plaintiff’s leg was fractured and was kept in plaster for five weeks,</p> <p>- and still after the lapse of a year occasioned her discomfort in walking, a verdict of §1,100 was not, under all the circumstances, excessive, notwithstanding the fact that a complete recovery was to be expected.</p>

<p>Appeal by the plaintiffs, Jakobina Fleck and others, from a judgment of the Supreme Court in favor of the defendant Carolina Rau, entered in the'office of the clerk of the county of Westchester on the 28th day of January, 1896, upon the decision o"f the ■court rendered after a trial at the Westchester Special Term.</p>

<p>Appeal by tbe defendant, tbe Ball Electric Light Company, from a judgment of tbe Supreme Court iu favor of the plaintiff, entered in the office of the clerk of the county of Queens on the -25th day of February,; 1896, upon the decision of- the court rendered after a' trial at the Queens County Special Term, which judgment required the removal of all the defendant’s pole's, wires and electric lamps from the streets of the village of Hempstead.</p>

<p>Negligence—presumption arising from the death of a horse stepping on the rail of an electric railroad—doctrine of res ipsa loquiturthe facts need, not exclude every hypothesis hut that of the defendants ‘negligence.</p> <p>In an action brought to recover the damages resulting from the killing of a horse, it appeared that while the plaintiff was driving along a street upon which the defendant maintained an electric railway his horse stepped upon one of the rails of the defendant’s track, sprang into the air and fell down upon the track, where it died in a few minutes. The plaintiff testified that when the horse fell down he rushed to his head and seized the frames of the harness, when he received a shock which distorted his hands and produced a feeling of numbness which lasted several weeks.</p> <p>Expert electricians testified that, in the system by which the defendant’s road was operated, a trolley wire formed the positive pole, and the rails the negative pole, and that, in the ordinary operation of the cars, the current passed from the overhead wires to the motor, and from the motor to the wheels, and from them to the ¿rack; that such an accident as the onedn question could not have happened unless, through the defective insulation of the overhead wires, some portion of the positive current was withdrawn therefrom and found its way to the ground or other surface upon which the animal was stepping at the time it came into contact with the negative rail.</p> <p>The court dismissed the complaint upon the ground that there was no proof that the "accident was the result of negligence, inaction or want of repair on the part of the defendant, and that the plaintiff was bound to make such proof.</p> <p>Held, that this was error; that the evidence amply warranted the inference that the horse was killed by an electric shock received from some source; and that as the defendant had brought electricity into the street for use as a motive power, and as electricity so employed yvas capable of escaping in such, a way as to produce the casualty which actually took place, these facts were sufficient to justify the inference that the accident was due to the agency of the defendant in the.absence of proof that it was otherwise caused;</p> <p>That the doctrine of res ipsa loquitur was directly applicable, as that doctrine simply calls upon the defendant after proof of the accident to give such evidence as will exonerate him, if any there be, and relieves the plaintiff from the burden of proving the non-existence of an adequate explanation or excuse.</p>

<p>Appeal — absence of a statement that the ease contains all the evidence — an attorney consulted by both parties may testify to such communications— a transfer of property by operation of law or by direction of the court is not champei’tous.</p> <p>In the absence of a statement in the appeal book that the case contains all the evidence, the court cannot review the findings of fact.</p> <p>Where two persons together consult an attorney for their mutual benefit, the attorney may, in a subsequent action between such persons, testify in regard to' the communications so made to him by them.</p> <p>The statute of champerty, against buying and selling pretended titles or the.</p> <p>' transfer" of lands in suit, does not prevent the transfer of property by. operation of law, or by a conveyance made under the decree of a court of competent jurisdiction.</p>

<p>Appeal by the defendant, George W. Palmer, as comptroller of the city of Brooklyn, 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 6th day of March, 1896^ directing the issuance of a peremptory writ of mandamus commanding him to restore and reinstate the relator to and in the position and clerkship previously held by him in the office of the comptroller of the city of Brooklyn, and also from an order, entered in said clerk’s office on the 6tli day of March, 1896, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Jane Wells, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 10th day of March, 1896; upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said cleric’s office on the 5th day of March, 1896, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of March, 1896, upon .the verdict of a jury rendered after la trial at a Trial Term of the Supreme Court held in and for the county of Kings, and • also from an order entered: in said clerk’s office on the 26th day . of March, 1896, denying the defendant’s motion for a new…

Appeal by the defendant, Michael O’Keeffe, from a judgment of the City Court of Brooklyn in favor of the plaintiff, entered in the office of the clerk of said court on the 31st day of May, 1895, upon the verdict of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 15th day of July, 1895, denying the defendant’s motion for a new trial made ujion the minutes.

• . .Appeal, by the defendant,. The Brooklyn Heights Railroad Company,, from; a judgment, of, the Supreme Court in favor .of .the plaintiff,,… Held: In and for the ¡county of Kings, and also from an order entered in said clerk’s- office .'on .the lgtli day of March, 1896, denying the defendant’s motion- for a new trial made upon the minutes.- ■ . - This action was brought.to recover- the damages resulting' from, personal .injuries caused by the alleged negligence of the…

<p>Negligence—newsboy knocked off the side step of a street railroad Co) ly a wagon — whether it is negligent to remain on the step is a question for the jury.</p> <p>In an action "brought to recover damages resulting from personal injuries caused-by the alleged negligence of the defendant, it appeared that the plaintiff, a newsboy about eleven years of age, had boarded a motor car in order to sell papers; that, although not a passenger, he was upon the car with the consent of its owners, but at his own risk-. While he was standing upon the step which ran along the side of the car, a wagon belonging to the defendant approached the car so closely that it knocked him off the step into the street, and he was injured.</p> <p>Meld, that the plaintiff was not guilty of contributory negligence as a matter of law, and that that question was one to be decided by the jury;</p> <p>That it was not the duty of the- plaintiff, as matter of law, to look out for ■ approaching vehicles, although the rule would be different if the plaintiff had brought his action against the owners of the motor car;</p> <p>That it was not erroneous for the court to refuse to charge the jury that the plaintiff could not recover if he knew that it was dangerous for him to mount and to remain upon the step of the car while in motion, or was capable of understanding that it was dangerous, or if his presence on the step contributed to produce the injury, as the requests were defective in omitting all reference to the question whether the plaintiff did what a prudent person of his age and capacity would do or ought to have done in the exercise of reasonable care under similar circumstances;</p> <p>That it did not follow that a person was guilty of contributory negligence because he voluntarily assumed a position which might involve danger. '</p>

<p>Slander—actual malice — a repetition of the slander—attemping to haw the accused discharged from his employment—comersations out of the presence of the plaintiff, inadmissible — measure of damages.</p> <p>Where an. action is brought to recover damages because of an alleged slander, any act or language of the defendant, tending to prove malice upon, his part in regard to the particular slander which is the subject of the action, may be proved with a view of enhancing the damages.</p> <p>A plaintiff who has been charged by the .defendant with theft is entitled to prove, as indicating actual malice, that the defendant said to him that he would follow the thing out (meaning the alleged theft) if it cost him §100. Declarations or conversations of the defendant, which took place out of the presence of the plaintiff, are not admissible on the defendant’s behalf, when not required to refute statements of the plaintiff in respect to such conversations. Where a defendant, who has charged the plaintiff with theft, persistently attempts to have the plaintiff dismissed from his employment, and subsequently repeats the slander, a recovery by the plaintiff of damages to the extent of §600 cannot be deemed excessive.</p>

<p>Appeal by the petitioner, August Meidling, as guardian ad litem of August Meidling, Jr., an infant, 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, 1896, denying the petitioner’s motion to vacate an order appointing a receiver and also a judgment entered in the action, or to modify the same. -</p> <p>This action was brought for the purpose of foreclosing a mortgage executed by the Hew York and Sea Beach Railway Company. On January 11, 1896, the plaintiffs in this action procured' an order appointing a receiver of said company, and of all the prop^ erty then owned by it. Subsequently a judgment of foreclosure was entered by which the receivership was continued and a sale directed of all the property in the receiver’s hands. Thereupon the appellant, who is a judgment creditor' of the Hew York and Sea Beach Railway' Company, instituted this proceeding for the purpose of having the order appointing the receiver and the judgment of foreclosure, and sale so modified as to affect only such property as the mortgagor had when the mortgage was executed.</p>

<p> Negligence—servant slipping off a defective keelson of a coal large inaster not liable for'conditions created by tlie servant. </p> <p>In an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant, it appeared that the plaintiff, who-was entirely familiar with the work, was engaged, with other men, in unloading coal from a vessel; that the unloading had proceeded until a part of the keelson, which was three and one-half or four feet high, had been uncovered, the top of which had been about two feet wide, but had been narrowed and rounded by the action of the coal. In attempting, to walk upon it, in order to reach a ladder which had been lowered from the deck to the bottom of the hold, the plaintiff slipped, because of the rounded top of the keelson, and -was. injured. . .</p> <p>The men engaged in unloading the vessel were paid by the ton for unloading it, and while their work was under the general supervision of a manager, yet they themselves, to a great extent, regulated its course and conduct. The ladder was placed in position by the men themselves, they selecting the place and the. defendant exercising no control whatever over such selection.</p> <p>Held, that the workmen in the hold, and not the defendant, were chargeable with knowledge of the condition of the keelson;</p> <p>That, as the conditions existing at the time of the accident were created by the workmen themselves, over the manner of the performance of whose work the defendant exercised no control, no liability attached to the defendant because, of the accident.</p>

Appeal by Minnie Waldron Furman (now Minnie W. Braun) and Mirabeau L. Towns from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the cleric of the county of Queens on the 1st day of May, 1896, vacating and annulling a judgment and discontinuing the action in which it was entered. The order appealed from was made upon the hearing of an order to show cause dated January 13,1896, and made returnable January 15, 1896. , '

<p> Negligence—evidence—declarations of the defendants, made some time after an accident, incompetent. </p> <p>In an action brought to recover damages, resulting.from personal injuries caused by the alleged negligence of the defendants, the plaintiff was allowed to prove that,, some time after the accident in question, he called iipon the defendants and asked them if they, were going to do anything for him, as he was a poor man and had a wife, and that the defendants replied, as stated by the witness, that “ they couldn’t do anything for me, that it was not their fault for my being blinded.”</p> <p>Held, that the' evidence was incompetent and distinctly prejudicial to the defendants’ case, as it was of a nature calculated to excite sympathy for the plaintiff, and arouse prejudice against the defendants, tending to influence the jury to give enhanced damages.</p>

<p>Appeal by the plaintiff, Bollin W. White, 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 29th day of February, 1896, upon a dismissal of the complaint directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Kings.</p> <p>This action was brought to recover commissions which the plaintiff claimed to have earned while acting as a broker for the defendant upon the sale of certain salt.</p>

<p>Appeal by the defendant, the Home Furnishing Company, from three judgments of the County Court of the county of Kings, entered in the office of the clerk of the county of Kings on the. 1st day of April, 1896, upon the decision of the court affirming three judgments rendered by a justice of the peace of the city of Brooklyn, ,</p>

<p>Appeal by the defendant, The Standard Oil Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of February, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county <of Kings, and also from, an order bearing date the 2'Tth day of February, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover the damages resulting from personal injuries caused by the alleged negligence of the defendant.</p>

<p>Appeal by the defendant, Sarah Ann Wright, 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 12th day of January, 1895, upon the decision of the court, rendered after a trial at. the Westchester Special Term.</p> <p>This action was brought in equity to obtain an injunction restraining the defendant from closing or obstructing a certain lane or right of way upon which plaintiff’s land is bounded. The plaintiff’s title to the premises bounded by the lane or right of way was derived through Patrick Fahey, a grantee of one Purdy.</p>

<p>Appeal by the defendants, Bertha E. Whigam 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 Kings on the 16th day of May, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.</p>

<p>Appeal by the defendant, The Kaufman Dairy and Ice Cream Company, from, a judgment of the Supreme Court in favor of the-plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of February, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of Kings.</p> <p>This action was brought to recover certain installments of rent</p> <p>under a lease made by the plaintiff to the defendant of a store, and basement.</p>

Appeal by the defendant, Richard Dieckman,' from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10 th day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term overruling his demurrer to the plaintiff’s complaint.

<p>Appeal by the defendant, The Union Railway Company of New York City, from a judgment of the Supreme Court in favor of 'the plaintiffs^ entered in the office of the clerk of the county of West- . Chester on the 28th day of December^ 1895, upon- the report tif a. referee.</p> <p>• This action' was brought to recover the value of professional serv- - ices alleged -to have been performed by the plaintiffs. The amount .demanded in the complaint was $132,500'. The referee directed a judgment to be entered in favor of the plaintiffs against the defendant-for. the sum of $24,693.02. ... -</p>

<p>Appeal by the plaintiff, Lorenzo G. Tomaselli, Jr.,, from a judg-ment 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, 1896, upon .a dismissal, of the complaint upon, the merits, directed by the court after a trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of Kings.</p> <p>This action was brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant.</p>

<p>Negligence —defective beam on an elevated, railroad structure—used by a workman as a support from which to work—not a“plaae” nor an “appliance” — the master not liable for its breaking.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff's intestate, caused by the alleged negligence of the defendant, it appeared that the defendant was engaged in constructing and affixing to the structure of its elevated railroad a trough to carry the trolley wire. Gross beams were fastened to the flanges of the railroad, and to these were bolted the troughs. The deceased was seated upon a cross beam, engaged in boring holes therein, when the beam broke, and he fell and was killed. The beams were procured from a reputable dealer and before being used were subjected to certain tests. The deceased weighed but 120 pounds, and the beam which broke was apparently good, but in the interior there was a knot or curl whose presence was undoubtedly the cause of its breaking.</p> <p>Held, that the master was not liable;</p> <p>That the beam was neither a place nor an appliance provided for the work of the deceased, but was part of a structure which he and the other workmen were engaged in erecting.</p>

<p>Sow fa/r champerty and maintenance exist in this State — the doctrine now affects only attorneys.</p> <p>The common-law doctrine relating to champerty and maintenance no longer obtains in this State, and the only statutory provisions relating to these subjects and now in force are sections 73 and 74 of the Code of Civil Procedure, which relate solely to attorneys.</p> <p>By a contract reciting that the property of Thomas R. Browne had been damaged by the construction of an .elevated railroad, George P. West agreed to</p> <p>bring in Browne’s name “asuit against said elevated railway company to recover the d'amages * * * and receive as and for his compensation fifty per cent of all money recovered as damages” and to “pay all court costs, including attorney and counsel fees. ”</p> <p>Under the terms of this agreement West brought an action in the name of Browne against the Kings County Elevated railway for damages resulting to the property of the latter from the construction and operation of the railway.</p> <p>The plaintiff in that action, Browne, was unsuccessful and was compelled to pay costs, and thereupon brought the. present action against the defendant West to recover their amount.</p> <p>Held, that the* action could be maintained,, as the contract wa's not illegal, and under its terms West was bound to indemnify Browne against any costs which might he recovered against him.</p>

Appeal by the defendant, Asa Gibbons, from a judgment of the City Court of Yonkers in favor of the plaintiff, entered in the office of the clerk of said court on the 1st day of April, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 6th day of April, 1896, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Negligence— what facts do not justify an inference that a h/yrse died, from the effects of a collision.</p> <p>In an action brought to recover the damages resulting from personal injuries and from the loss of a horse alleged to have been occasioned by a collision caused by the defendant’s alleged negligence, the evidence was to the effect that the horse was thrown down by the force of the collision, immediately got up and was driven off without any appearance of injury. After the accident the horse “ pined away,” was afflicted with sore throat, and died in three weeks.</p> <p>Held, that an inference that the death of the horse resulted from the collision was ' not justified.</p>

<p> JRemew of findings of fact, exceptions unnecessary—.measure of damages where a contractor persistently delays, and the other party ejects him and completes, the work, upon the contractor’s account. </p> <p>Upon appeal to. the Appellate Division a certificate that the case embraces all the evidence given on the trial enables that court to review the findings of fact made by the trial court; it is not necessary for the unsuccessful party to file exceptions to such findings.</p> <p>In an action brought to enforce a mechanic’s lien, it appeared that a board- of education had contracted with the plaintiff to construct a school house to he paid for in five payments. After the fourth payment had been made, the board of education, because of the persistent delays of the contractor, ejected him from the premises and, under a provision of the contract authorizing, it to do so, completed the work. The board of education proved the amount which it had expended in the completion of the work; the court decided upon the evidence that the contractor had performed about one-third of the work, and held that he was entitled to one-third of the contract price.</p> <p>Held, that this ivas erroneous;</p> <p>That the contractor was only entitled to recover whatever balance might be due him after crediting the board of education with the sum which it had paid for the completion of the work, there being no evidence that its expenditures were not made in good faith and with reasonable care.</p>

<p>Negligence — employment of an ignorant boy in plunging heated spoons into turpentine which is thereby ignited — duty of the master — absence of previous accident.</p> <p>In an action brought to recover damages resulting from the death of the plaintiffs intestate, caused by the alleged negligence of the defendant, it appeared that the deceased was an ignorant Italian boy aged fourteen, and had been employed by the defendant for only three days. He was engaged in cleaning spoons, part of the process being to dip them into boiling grease, then into a pot of melted metal, and then, after they had cooled to some extent, to place them in a bath of turpentine. The deceased had received no instructions, and the master had made no rules nor regulations in reference to his work.</p> <p>While the deceased was so engaged the turpentine took fire and the deceased was burned. The evidence justified the conclusion that the fire was caused by the heat of the spoons.</p> <p>Held, that the master was liable;</p> <p>That, as the deceased was required to do the very thing which caused the accident, viz., to insert the spoons in the turpentine, he was entitled to be instructed not only to wait until the spoons had cooled, sufficiently, but also to have given to him some practical standard to apply, or some ride or regulation upon the subject;</p> <p>That the fact that no previous accident of this character had occurred did not ■ relieve the master from liability.</p>

<p>Appeal by the plaintiffs, Charles Deuterman and others, as executors, etc., of Charles Deuterman, deceased, 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 23d day of December, 1895, upon the decision- of the court rendered after a trial at the Westchester Special Term.</p>

<p>Contract — agreement to sha/i'e the profits arising out of sales of lands — no partnership relation nor interest in the lands created— costs in equity.</p> <p>A contract provided “that inasmuch as the party of the first part is the owner of two certain plots of real estate on Newkirk avenue in Flathush, lying between Flatbush avenue and Ocean avenue, and is desirous of disposing of the same at ¡the best advantage, it is, therefore, agreed between the party of the first part and the parties of the second part that, in consideration of said parties of the second part devoting to said business their best endeavors to dispose of .the said property, the party of the first part hereby agrees that after he shall be reimbursed for the cost of said property and improvements, with interest at six per cent per annum, the profits on said property shall be divided as follows : ”</p> <p>' After the party of the first part had been reimbursed by the proceeds of sales of a portion of the lots, some of which still remained unsold, one of the parties of the second part brought an action for an accounting, claiming an interest in the excess of the proceeds of the .sales over the expenditures and in the unsold lands.</p> <p>Held, that the contract was one merely of employment, and that the parties of the second part acquired no interest in the property itself;</p> <p>That, even were it an agreement to share in the profits as profits, it would not have constituted the parties partners as between themselves or have given the parties of the second part any interest in the lands;</p> <p>That the jjarties óf the second part were not entitled to share in any profit which arose simply by reason of the original purchase, as the agreement contemplated only the profit which might accrue upon subsequent sales, and, therefore, they were not entitled to any interest in the lands unsold.</p> <p>Where, in an equity action, the defendant, by his answer, offers the plaintiff the relief to which he is entitled, and which is ultimately awarded to him, it is improper to charge the defendant with costs.</p>

<p>Appeal by the ¡Dlaintiff, Dwight . H. Olmstead, as trustee under the last will and testament of Hoah T. Pike, deceased, from so much of a, judgment of the Supreme Court, entered in. the office of the clerk of the county of Kings on the 12th day of March, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term, as awards judgment against the defendant Frederick B. Latimer for only sixteen-seventy-fifths of any deficiency which may arise upon a sale of certain mortgaged premises, and also from so much of said judgment as adjudges that . the defendants, Henry A. Latimer and Brainard G. Latimer, are not liable as heirs at law, or otherwise for any deficiency arising from such sale.</p> <p>Also, an appeal by' the defendant Frederick B. Latimer from so much of said judgment as awards judgment against him for sixteen-seventv-fifths of any deficiency which may arise upon the sale of said mortgaged premises.</p>

<p>Common carrier — liable as a warehouseman after tendering goods to-tlie consignee— it may store the goods — duty as to notifying the consignor.</p> <p>A common carrier discharges its duty as such when it tenders the goods to the consignee, and its subsequent liability is only that of a warehouseman.</p> <p>It may, in such case, discharge itself from liability as a warehouseman by storing the goods for account of the owner in the warehouse of, a responsible person.</p> <p>The carrier is hound to give notice to the consignor that the consignee has refused the goods only when reasonable care would require it; when such notice is given to the consignor he must take immediate action, and direct the carrier as to the disposition to be made of the goods. The consignor cannot, by his inaction under such circumstances, cast upon the carrier.tbe duty of caring for the property.</p>

<p>Justice’s Court — review of its acts — adjournment when both parties fail to appear— no liability for a judicial error when there is jurisdiction of the person and subject matter ■—Code of Civil Procedure, §§ 2959, 2960, 3013.</p> <p>The sound rule of construction, in respect to the Courts of Justices of the Peace, . is to he liberal in reviewing their proceedings so far as respects regularity and form, and strict in holding them, to the exact limits of jurisdiction prescribed to them by the statute.</p> <p>Notwithstanding the provision of section 3013 of the Code of Civil Procedure, providing that, in the Court of a Justice of the Peace, judgment of nonsuit, with costs, must be rendered against the plaintiff if he fails to appear within one hour after the time to which the trial has been adjourned, yet, where a justice of the peace, after the adjournment of a case, when both parties failed to appear, granted a judgment in favor of the plaintiff, and issued an execution upon it, the court considered that the justice had not made himself liable as a trespasser;</p> <p>That as the justice had jurisdiction, both of the subject-matter and of the parties, the judgment and execution, although erroneous and voidable, were not void, and that, therefore, the justice was entitled to protection as in an ordinary case of judicial error.</p>

<p> Partnership—when the assignee of a pm'tner becomes a partner. </p> <p>An assignment of the interest of one partner in a firm business to a third person does not make such third person a partner with the person who continues in the business, and the sole right of such an assignee is to have an accounting and to receive the share of Ms assignor in the. surplus after the partnersMp affairs are wound up by the continuing partner.</p> <p>When, however, after such an assignment, the partner continuing in the business receives the assignee into it as a partner, by such act the partnership relation is created between them, resulting entirely from his reception as partner and not from the assignment; no particular form of words or written instrument is required to create this relation between them.</p>

<p>Highways — rule as to the beds of highways laid out before the English occupation — effect of the Dutch capitulation and of subsequent English patents — when a description excludes the bed of a highway.</p> <p>Under the Dutch law, which prevailed in the colony of New York while it was a province of the States General, the fee of a -highway, and not a mere easement in it, vested in the public.</p> <p>The rights of the Dutch in the province of New York were finally determined by the terms of the capitulation made at, the time of the English occupation, and as a consequence of that capitulation the title to the bed of a road vested in the English government until granted by it.</p> <p>Upon the submission of a controversy without action, it appeared that the defendant declined to complete a purchase and refused to accept the plaintiff’s title to certain premises, forming part of an ancient highway which formerly traversed the city of Brooklyn (not beiug-one of those retained xvhen the system of .city, streets and avenues was adopted), and that the road had been for some years .abandoned and the land within its limits incorporated into city lots. During the Dutch occupation their authorities granted a patent or. charter to the . town of Brooklyn ; subsequent patents were" granted by the English crown covering all the lands within the limits of the town. The plaintiff had acquired, by conveyances from the city of Brooklyn, all its title to the land.</p> <p>Held, that the title of the plaintiff was good and that the purchaser was bound to accept it.</p> <p>Neither a description in a deed which runs to a road, and thence along the road, nor a description which commences at a point on the southerly side of a turnpike road and then runs on various courses and distances tó the southerly side of the said road, and thence along the said road to the point of beginning, conveys any part of the bed of the road.</p>

<p>A contract to improve highways made by county commissioners-—a contractor is bound to know the limits of their authority—where quantities wre stated to be approximate a contractor bids at his peril and- cannot recover for extra work— proof of a forfeiture.</p> <p>The hoard of supervisors of the county of Queens directed the improvement of certain highways' in that county, and appointed commissioners who were authorized to prepare plans and specifications of the work, and all other instruments in writing, found necessary during the course of the work, and to execute the necessary contracts. It was provided, however, that all plans, specifications, contracts and other instruments in writing should he submitted to the board for approval, and that proposals for the doing of the work should be publicly advertised for.</p> <p>' The advertisement for proposals expressly stated that the estimates of the quantities of work to be done were approximate only, and required the bidders to satisfy themselves of their correctness, and the contract stipulated that the contractor would not demand “ an extra compensation beyond the amount payable for the several classes of- work in this contract enumerated, which shall be actually performed at the prices therefor therein agreed upon and fixed,” and that the contractor admitted and agreed that the amounts and quantities of the work to be dime and materials to be furnished as stated in the proposals for estimates, were approximate only.</p> <p>Held, that the contractor could not recover for alleged extra work;</p> <p>That, as the commissioner's were public officers, all persons dealing with them were bound to ascertain the limits of their power and authority and were chargeable with knowledge.of such limits;</p> <p>That, if the work alleged to have been done by the plaintiff was not within the terms of the specifications then the commissioners were not authorized to con- . tract for its performance; and that, upon the other hand, if the work was within the requirements of the specifications, then, by the express terms of the contract, the plaintiff was not entitled to recover.</p> <p>Where the defendant in an action, brought to recover a balance due upon a contract, claims that the plaintiff has forfeited his right to receive such balance, by a failure to perform in time the work done under the contract, the burden rests upon him to prove that fact affirmatively.</p>

<p>Appeal by the relator, J. Carlton Ward, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of April, 1896, denying his motion for a writ of mandamus.</p> <p>This was a special proceeding for a writ of mandamus to compel a membership corporation, organized under chapter 267 of the Laws of 1875, and located in the city of New York, to reinstate the relator as a member. The application was for a "writ peremptory or alternative, as might he proper. It was denied by the Special Term in the first department. This appeal was transferred to the second department^ because all, or nearly all, the justices of the Appellate Division in the first department are members of the Uptown Association,</p>

<p>Will — when a residuary clause does not cairy estates in remainder — when it covers only things ejusdem generis.</p> <p>In an action brought to procure a construction of the so-called residuary clause of the will of Maria Elizabeth Stark, it appeared that the testatrix died seized and possessed of five houses and lots, and about §10,000' worth of personalty, and that she left surviving her,- two children, a. son, John- Neiheisel, who; at the time of the making of the will, and up to the time of his death, was of unsound mind, and a daughter Lena, wife of the defendant, Nicholas Toei'ge.</p> <p>By her will the testatrix gave John Neiheisel §100 a month while he was mentally incapacitated, and in lieu thereof, in case of his recovery, she gave him during life “the following real property, to wit, the house and lot known by the street number 79 on Myrtle avenue, the house and lot known by the street number 81 on Myrtle avenue, and the house and lot known by the street and number 161 on Court street.” She further provided that if he died of the disease he was then afflicted with, “leaving him surviving his present wife, and never possessed of the premises aforesaid,” his wife should receive a legacy of §4,000.</p> <p>Then, after giving a few small legacies, she devised to her daughter Lena Toerge, a life estate in the other two houses and lots, specifically mentioning each house by its street number, and further- provided, “and until the aforesaid John Neiheisel does fully recover from the disease he is now afflicted with, and ■ in the event of his death, during the lifetime of Lena Toerge, I give and bequeath to her, during her life, the houses and-lots Nos. 79 and 81 Myrtle avenue, and the house and lot No. 161 Court street, all in the city of Brooklyn, New York.” This provision was followed by the clause, “ I further give and bequeath to her all my jewels, pictures, ornaments, books, household furniture, and all other property of whatsoever kind or nature not hereinbefore made mention of, absolutely and forever.”</p> <p>Lena Toerge died after the testatrix and left a husband and two children. By her will she made her husband her sole devisee. . John Neiheisel died after-Lena, without surviving issue, never having recovered his sanitj.</p> <p>The question was whether under the words of the so-called residuary clause, ‘ ‘ and all other property of whatsoever kind or nature not hereinbefore made mention of,” -Lena Toerge, or her husband under her will, took an estate in remainder in the five houses and lots, or whether the testatrix died intestate as to the estate in remainder therein, in which event it would pass primarily in equal parts to her daughter Lena and to her son John.</p> <p>Held, that, upon a consideration of the whole will, the latter construction was correct;</p> <p>That the rule that the devise of the “rest, residue and remainder” of an estate was to be construed as carrying everything not before effectively disposed of in a will, had exceptions where the language used tended to indicate a different intention upon the part of the testatrix;</p> <p>That the words “not hereinbefore made mention of” were tobe construed in their ordinary and popular sense, and meant and were equivalent to the words “direct attention to,” "speak briefly of,” “name casually or incidentally;” that, consequently, in view of the fact that the testatrix had already specifically mentioned each house and lot by its street number, when the testatrix made use of the words “all other property of whatsoever kind or nature, not hereinbefore made mention of,” it must be held that the words “all other property” did not include the real estate mentioned;</p> <p>That such words in the will were restricted to property of the same general nature as that already described, viz., .“jewels, pictures, ornaments,” etc., and that by such words the testatrix only meant to bequeath the undisposed of personalty.</p>

<p>Appeal by the defendant, Herbert B. Fellows, 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 24th day of October, 1895, upon the verdict of a jury rendered after a trial at-the Putnam Circuit, and also from an order bearing date the 22d day of October, 1895, 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, Hirsch Szerlip, from an order of the County Court óf the county of Kings,' entered in the office of the clerk of the county of Kings on the 2d day of May, 1896, allowing the plaintiff to discontinue the action on the payment to the.

<p>Order for defendants’ examination before trial — remeioable by the Appellate Division — the plaintiff’s apprehension that the defendants will commit perjury upon the trial is not a sufficient reason for granting it '.</p> <p>The Appellate Division has authority to review the determination of a judge who grants- an order'authorizing the examination of a party before trial.</p> <p>The affidavit, .upon which an order for the examination of the defendants in an action before trial was granted, stated that the affiant, who described himself as the plaintiffs’ agent for the purpose of making the affidavit, was “ convinced,” from the nature of certain testimony given by the defendants in a chancery suit in New Jersey, “that they would, if' placed upon the stand at the trial of this cause, give false evidence, which deponent could not then rebut, but if examined before trial thejr will not dare to testify falsely to any facts of - which the plaintiffs herein could prove the falsity and on which examination the plaintiffs could procure the indictment ” of the defendants.</p> <p>Held, that the reason assigned was insufficient to warrant the order;</p> <p>That it would be a reflection on the character of the parties to an action, which the court had no right to make, to force them to-submit to an examination upon • the assumption or assertion that such a course was necessary in order to guard against subsequent false swearing on their part, especially when there was nothing to sustain the assumption or assertion except" the bald statement of an agent of the adverse litigant that he is “ convinced ” of the danger of perjury.</p>

<p>Mortgage —an executed gift between husband and wife — merger is a question of intent—proof competent under an allegation of ownership of a mortgage.</p> <p>■ A husband bought certain parcels of land upon the foreclosure of second mortgages thereon, and subsequently paid the amounts due upon the first mortgages (which were prior liens upon the premises at the time of his purchase) to the then owners thereof; but for the purpose of protecting his title from possible imperfections arising out of defects in the proceedings for the foreclosure of the second mortgages under which he purchased, he, instead of having the mortgages satisfied of record, procured assignments thereof to be executed to his wife," .which were accepted by her in trust for the purpose of protecting his title.</p> <p>In an action brought by the wife to foreclose the mortgages so assigned to her, the court found, that, although the plaintiff had originally held the mortgages for her husband's benefit,. a controversy had subsequently arisen in which both, in equal good faith, claimed to own the assigned 'mortgages, and that ' the husband had finally yielded and given the mortgages in question to the ■wife, and judgments of foreclosure were directed in her favor. •</p> <p>Held, that the mortgages might be made the subject of ah executed gift between husband and; wife;</p> <p>That, in equity, merger was a question of intention, and would not be presumed in opposition to the intent of the parties, and that, as it appeared that the purpose of the husband was to preserve the assigned mortgages in full force and •effect, there was no merger at the time the mortgages in question were assigned to the wife ;</p> <p>That the judgments should .be affirmed.</p> <p>The wife alleged that the mortgages had been assigned to her by the mortgagees and that she was the owner and holder of the mortgages in question at the time the suits were commenced for their foreclosure.</p> <p>■Held, that it was immaterial whether she proved that she became the owner by a direct transfer from the mortgagees, or by an executed gift from her husband.</p>

Appeal by Theodore B. Willis, as commissioner of city works of the city of Brooklyn, and another, from an order of the Supreme-Court, made at the Kings County Special Term and entered in the-office of the clerk of the county of Kings on the 8th day of July, 1896, directing the issuance of a peremptory writ of mandamus-requiring the defendants to forthwith remove and keep removed the-stand, booth or table in front of Ho.- 14 Broadway in the city of Brooklyn; also, the stands,…

<p>Appeal by the defendant, George Keller, 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 21st day of February, 1896, upon the decision of the court rendered after a trial at the Westchester Special Term.</p>

<p>Motion by the defendant, William Ghormley, for a. reargument upon an appeal from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the cleric of the county of Westchester on the 23d day of May, 1896, granting a motion made by the plaintiff for the inspection and discovery of certain books and papers. The opinion in this case, written upon the decision of the appeal, is reported in 6 Appellate Division, 170.</p>

Appeal by' the complainant, Everett Greene, from so much of 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 12th day of October, 1896, as sustains the determination of the' board of elections and from so much of the said order as reads substantially as follows: Ordered that the determination of the hoard of elections of the city of Brooklyn, that the political party name National…

Appeal by the defendants, Orlando M. Harper 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 Suffolk on the 15th day of January, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Charles N. Morgan, and by the defendfendant Margaret P. Humphrey, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 1st day of August, 1896, excepting so much thereof as orders that the referee be instructed to pay to the proper authorities of the village of Goshen the amount due for the village tax for the year 1896, levied against the property described in the…

.Appeal by the defendant, Hubert G. Taylor,, as county treasurer of Kings county, from an older of the Supreme Court, made at the .

Appeal by Richard S. Emmet, Jr., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of October, 1896, which reversed the decision of the county clerk of Westchester county, which determined that Richard S. Emmet, Jr., was the regular Republican nominee for member of Assembly in the second Assembly district of Westchester county, and which directed the said county clerk…

<p>Appeal by the defendant, Julius Liebmann, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of April, 1896, upon the decision of the court rendered after a trial at the Kings County Special Term overruling his demurrer to the amended complaint, with notice of an intention to bring up for review upon such appeal the order and findings made herein on the 20th day of April, 1896, directing the entry of said judgment.</p> <p>The demurrer was interposed upon the ground of improper joinder of causes of action.</p> <p>The complaint, which alleged non-payment of rent and damage to the demised premises, referred to Schedule A annexed to it, which contained ajease executed by the plaintiff of the first part and by The Williamsburgh Democratic Club, by its president and secretary, of the second part. Following this lease, was an instrument, signed by J\ Liebmann and others, guaranteeing the performance by the tenant of the covenants of the lease.</p>

Appeal by the defendant, John R. Sutton, as auditor of the city of Brooklyn, from an order of the Supreme Court, made at the Kings- County Special Term and entered in the office of the clerk of the county of Kings on the 9th day of June, 1896, directing that a peremptory writ of mandamus issue, commanding the defendant to audit the relator’s claim for salary, as clerk of the board of supervisors of the county of Kings-and as custodian of records and documents for the months…

. Appeal by the relator, John Tregaskis, 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 May, 1896, denying his motion for a peremptory writ of mandamus directing George W. Palmer, as comptroller of the city of Brooklyn, to notify the civil service commission of certain vacancies in his department, and to require said Palmer to request from said commission- a…

<p>Railroad—a nuisance created by a turntable is not authorized by the statute— remedy in equity.</p> <p>A statute authorizing the creation and operation of a railroad does not authorize it to so maintain and operate a turntable situate upon its premises as to make the same a nuisance.</p> <p>The fact that a judgment, rendered in an action brought to restrain the use of property alleged to constitute a nuisance, and to recover damages, does not award damages, does not render the judgment inconsistent, as when the equitable powers of the court are invoked to restrain the commission of a wrong of Which it can take cognizance, it may render any judgment essential -to accomplish that end, which is warranted by the evidence.</p>

Appeal by the plaintiff, the New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Westchester Special Term and entered in. the office of the clerk of the county of Westchester on the 3d day of July, 1896, appointing a referee to ascertain and report the amount' of damages sustained by the village of Hastings-on-Hudson by reason of an ' injunction granted in the action.

.Appeal by the defendant, The Village of White Flams, from an order of the Supreme Court, made at the. Dutchess Special Term, and entered in the office of the clerk of the county of Westchester on the 29-th day of June, 1896, appointing a referee to- hear and determine the issues in me action..

Appeal . by The -Town of New Windsor from, an order of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 3'lst day of' August, 1896, directing the Town of New Windsor to pay the fees of commissioners appointed by the court on the application to lay out and open the highway, and also from an order bearing date the 21st day of August, 1896, and entered in said clerk’s office modifying the said order.

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

<p>Bailroads—form of the complaint in an action by a stockholder' to set aside a lease— the complaint must show that the corporation refused to sue—what is not a demand that it sue—scheme of a syndicate to control a lessor company — when not illegal— power of a railroad corporation to lease its road—privilege to a syndicate to subscribe to the stock — insufficient allegations of fraud—Laws 1892, chap'. 676.</p> <p>Semble, that, where an action is brought by a stockholder of a street railroad corporation to set aside a lease of its railroad to another corporation, it is not a material defect in the complaint that it fails to allege that the action was brought, not only in the right of the plaintiff, but also on behalf of all the other stockholders of the corporation. Such an objection, even if valid, does not go to the existence of any requisite fact, but solely to the form of the pleading, and the plaintiff should be allowed to amend his complaint in this particular upon the trial.</p> <p>As the primary right of action in cases of this nature is in the corporation, it is essential that the complaint allege that the corporation had been applied to and had refused to bring the action.</p> <p>An allegation that the plaintiff demanded of the corporation, in which he was a stockholder, his share of the proceeds of the operation of the railroad over and above the rent, stipulated to be paid in the lease, does not constitute a sufficient demand that the corporation bring the action; nor does an allegation that the plaintiff has notified the directors and officers of his company that the lease was unlawful and injurious to the stockholders, and that he has demanded that there shall be distributed among the stockholders all the profits and receipts from the operation of the railroad without regard to the lease.</p> <p>The scheme of the lease of the Brooklyn City Railroad Company to the Brooklyn Heights Railroad Company was substantially as follows:</p> <p>A syndicate proposed to the directors and stockholders of the Brooklyn City Railroad Company that it should be leased to the Brooklyn Heights Railroad Company for a net sum, above all taxes and expenses, equal to ten per cent of the stock of the Brooklyn City Railroad Company, which was then §9,000,000. A traction company was to be formed with a nominal capital of §30,000,000, which was to own and control the company which leased the Brooklyn City railroad, and the syndicate was to deposit the sum of §4,000,000 as a fund to guarantee the payment of the rent. Each shareholder of the Brooklyn City Railroad Company, for every hundred dollars par value of his stock, was entitled to subscribe for and receive three shares of the traction company’s stock upon the payment of fifteen dollars per share, or to sell his right to such subscription. If all the stockholders of the Brooklyn City Railroad Company exercised their option there would still remain §3,000,000 of the stock which it was stipulated should go to the syndidate, which was to pay for it at the rate of fifteen dollars per share.</p> <p>It was alleged that the Brooklyn City Railroad Company was in a condition to increase its earnings and pay dividends of at .least fifteen per cent, while the Brooklyn Heights Railroad Company was 'a small .company with a capital of but $200,000 and had not the means to pay the rental of ten per cent to the Brooklyn City Railroad Company, except as it’, derived súeb means from the. earnings of the latter company.</p> <p>1Held, that it did not appear that the lease was illegal';</p> <p>That under prior statutes and under the existing law of 1892 (Chap. 676), authority was given to railroad companies to lease their roads to others, that power being, under the act of 1892, coupled with a provision that, if the lease exceeded in length one year, it should not be valid unless approved' by the holders of two.-thirds of the stock of the lessor and lessee corporations ;</p> <p>That' the. fact that the scheme contemplated a traction company which should . own the stock of the Brooklyn Heights Railroad Company, although introducing an element of stock-jobbing or stock-watering,, was not contrary to statute, -nor could it he said to he against public policy ;</p> <p>That the scheme itself was not fraudulent, as the stockholders of the Brooklyn City Railroad Company were to receive dividends of ten per cent per annum in place of the present eight per cent; nor a foolish bargain, as these dividend's were guaranteed by the deposit of $4,000,000 made by the syndicate;</p> <p>That it was not illegal to allow the syndicate, to subscribe for'§3,000;000 of the capital, it appearing that the syndicate had already advanced $500;000, and • was further to secure the deposit of the $4,000,000;.</p> <p>That the allegation contained in the complaint, that the Brooklyn City Railroad Company would be able to pay fifteen per cent dividends instead of ten percent, provided.it retained its road, and that the effect of the lease was to deprive that company of its full earnings, was not necessarily an allegation that the lease was illegal or fraudulent;</p> <p>That an allegation that certain persons, some of whom were directors of the company (these directors not having .been alleged to constitute a majority of the directors), had designed and entered into a scheme to' divert a .portion of the . earnings from the. stockholders, and in pursuance' of that scheme to lease the road for a consideration less than its rental value, was not a sufficient allegation of fraud;</p> <p>That an allegation that .the scheme of leasing the road was unlawful, and that the effect and intent thereof, upon the part of the shareholders’ who designed, "approved and carried the same into effect, was to injure and' defraud the stockholders of the Brooklyn City Railroad Company,was defective Inasmuch as it failed to charge what the fraudulent conduct and motive of' the stockholders were, and did mot constitute a sufficient allegation of fraud-.</p> <p>Cuiden, J., dissented as to this latter proposition.</p>

<p>Appeal by the defendant, Catharine Schneider*, 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 13th day of January, 1896, upon the verdict of a jury rendered after a trial at a. Trial Term of the Supreme Court held in and for the county of Kings, and also from an order entered in said clerk’s office-on the 13th day of January, 1896, denying the defendant’s motion for a new trial made, upon the minutes.</p>

Appeal by the defendant, Valerie L. D. Powell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 30th day of October, 1894, upon the decision of the court rendered after a trial at the Richmond County Circuit before the court without a jury.

Appeal by William 0. Johnson and others from a-decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 28th day of March, 1896, settling the accounts of the - executors and trustees of the estate of Abijah ■Curtiss, deceased, and also from an interlocutory decree of said court entered in said clerk’s office on the -2d day of March, 1896.

<p>- Appeal by the defendant, Harrison Fuller, 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 8th day of January, 1896, upon the decision of the court, rendered after a trial before the court without a jury at the Jefferson Circuit, on the 1st day of November, 1895.</p>

Appeal by the plaintiff, Caroline Eyring, from an order of the County Court of Erie county, entered in the office of the clerk of the county of Erie on the 6th .day of August, 1896, vacating a. judgment of foreclosure.

<p>Executory sales—the vendee is entitled to areasonable opportunity to inspect the goods— what is not an acceptance.</p> <p>The vendee in an executory contract for the sale of personal property-is entitled to a fair and reasonable opportunity to inspect the property, in order that he may satisfy himself that the goods correspond in quality with those purchased.</p> <p>Employees of the purchasers of a carload of posts removed from the car one load of posts, but before the same were removed from the freight yard, it was . discovered that the posts were of an inferior quality. One of the vendees, upon, being, informed of the inferior quality of the posts, went to the yard, examined; those removed from and also those which remained on the car, and being- satisfied that the posts were not of a merchantable quality, he directed ■ that such of them as had heen taken from the car should he returned, and immediately notified the vendor that the vendees declined to accept the posts, for the reason that they were not of the quality ordered.</p> <p>Meld, that under the facts of the case there had heen no acceptance of the posts upon the part of the vendees.</p>

Appeal by the plaintiff, Simon E. Rose, from a judgment of the Supreme Court in favor of the defendants, George W. Chadwick and George W. Lynn, entered in the office of the clerk of the county of Oneida on the 8th day of April, 1896, upon the dismissal of the complaint directed by the court after a trial before the court without a jury at a Trial Term of the Supreme Court, held in and for the county of Oneida, and also from an order entered in said clerk’s office on the 7th…

<p>Election Law—a board of canvassers, directed to recanvass according to law, but without specific directions — no contempt where they home exercised their best judgment—Laws 1895, chap. 810, § 104.</p> <p>Upon an appeal from an order adjudging tile defendants guilty of contempt, it appeared that they were the board of inspectors and the clerk of a village, and that, upon a canvass of the votes cast for the office of president of the village they had rejected certain ballots for the reason that they were marked with a cross placed at the left of the candidate’s name, but not within the rectangular space provided for that purpose. Subsequently an alternative writ of mandamus was obtained, requiring in terms a recanvass of the votes in the manner prescribed by law, and directing the defendants, the board of inspectors, upon such recanvass, to reject “ only such ballots as the law declares void and not to be counted,” and not to “reject any ballot for any technical error which does not make it impossible to determine the voter’s choice, but that every such ballot cast shall be counted in the manner prescribed by law.”</p> <p>The defendants made a return of compliance to the writ, but it appearing that about three-fourths of the ballots in question had been rejected on the recanvass, the defendants were subsequently, upon the return of an order to show cause, adjudged guilty of contempt.</p> <p>Held, that this was erroneous; ■</p> <p>That the effect of the alternative writ of mandamus was to relegate to the board of inspectora the whole matter of recanvassing the ballots, with no specific directions as to how such recanvass was to be conducted, beyond the direction that they were to follow the language of the statute;</p> <p>That as no had faith was shown it was impossible to say that the inspectors, in the exercise of a judicial function, had not employed their best judgment in the matter, and that, as they were given no specific directions, it was improper to punish them for contempt.</p>

Appeal by the plaintiffs,. Chauncey N. Shipman and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 2d day of April, 1896, upon the decision of the court, rendered after a trial before the court without a jury at the Erie Circuit, on the 23d day of September, 1895.

Motion by the defendant, The American Central Insurance Company, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury, rendered by direction of the court after a trial at 'a Trial Term of the Supreme Court, held in and for the county of Steuben on the 6th day of January, 1896.

<p>Appeal by the plaintiff, Albert A. Baker, from an order of the Supreme Court, made at the Monroe Circuit and entered in the office of the clerk of the county of Monroe on the 5th'day of November, 1894, denying the .plaintiff’s motion for a new trial.</p> <p>The trial court dismissed the plaintiff’s complaint, and ordered judgment for the defendants, upon the ground that the cause of action set forth in the complaint was barred by the Statute of Limitations.</p>

<p>Appeal by the defendant, Martin Brown, from a judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 10th day of February, 1896, upon the decision of the court rendered after a trial at the Erie Equity Term, affirming a judgment of the Municipal Court of Buffalo, entered on the 7th day of November, 1895, in favor of the plaintiff against the defendant.</p>

<p>Will — test of capacity to execute it — undue influence, burden of proof •—■ acts of the-testator done in the presence of the witnesses — request to the witnesses to sign-made by a third person and assented to by the testaton\</p> <p>If a testator comprehends the nature and extent of his property and who have' just or natural claims upon his bounty in his disposition thereof, the will should not be rejected because he is of weak understanding or physically .weak.</p> <p>Where the want of ability in a testator to speak fully and to discharge the duties' which are connected with the execution of a will, arises wholly from physical' incapacity, the question to be determined is, whether the testator was to such an extent ill or suffering that he did not properly comprehend what he was doing and did not act intelligently upon the subject.</p> <p>That a testator who has been for many years upon bad terms with his sister, because of her having contested the will of their father, makes but a slight, provision for his sister, and a much larger provision for a half-brother with whom he resided for a long period, affords no reason for rejecting the will.</p> <p>Where a will is attacked upon the ground of undue influence, it must be shown that the influence exercised was sufficient to destroy free agency, or that because of importunity, which the testator was unable to resist, he was. constrained to do that which was against his free will and desire.</p> <p>A defense of unclue influence must be alleged by the contestant, and. the burden ' of establishing it is upon the contestant.</p> <p>Proof of any act of the testator done in the presence of-the witnesses at the time of the execution of his will which tends to show that the testator desired to-publish the paper as his will, and that he wished the witnesses to execute it, is competent.</p> <p>A request to witnesses to sign a will, if made by the person superintending the execution of the will, in the hearing of the testator and with his silent permission and approval, is sufficient,</p> <p>Adams and Green, JJ.,. dissented xipon the question whether the facts of the case justified the court in directing the framing of issues of fact, to be tried by a jury at a Trial Term of the Supreme Court.</p>

<p>Appeal by the defendant, John Leonard, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie oñ the 4th- day of April, 1896, upon the report of a referee.</p> <p>This action Was originally brought by the plaintiff against John Leonard, the husband and residuary legatee of the testatrix, Dorothea Leonard, as sole défendant. After a partial hearing of the case before the referee, á motion was made at Special Term to require the plaintiff to make the guardian of the infants, Herman A. Ruf and Margar'et A. Ruf, a party defendant to the action, so that all parties interested would be before the court. Thereupon a supplementary complaint was served, making the infants’ guardian, which, as administrator, is also the plaintiff, a party defendant. Substantially the same facts were therein alleged as in the original complaint. Defendant Leonard, in his answers to the original and sup- ■ plemental complaint, among other things, alleged that the legacies sought to be recovered in this action were lost solely by and through the carelessness, negligence and inattention to duty of the guardian of said infants in not taking proper steps to reduce their . estate to possession and to properly invest it, and in permitting it to remain unsecured in the hands of Louis K. Purviance, who gave no security for the faithful performance of his duty as executor, and that the loss should fall upon the recalcitrant guardian and not upon the residuary legatee.</p> <p>The facts, as found by the referee and as conceded, are these :</p> <p>Dorothea Leonard departed this life in 1890, leaving a last will and testament, which was admitted to probate by the Surrogate’s Court of Erie county May 1, 1890.</p> <p>In and by that will a legacy, of $2,000 to each, was given to the infants, Margaret A. Ruf and Herman A. Ruf. Louis K. Purviance was appointed sole executor of said will, qualified, and continued to act as sucli until July 31, 1895; he gave no security for the faithful discharge of his duties as such executor. On March 14, 1890, the plaintiff in this action was appointed by the Surrogate’s' Court of Erie county guardian of the estates of said infants, and has ever since remained such. Prior to March 5, 1891, said Purviance, as such executor, converted the estate of deceased into money and received more than sufficient to pay the legacies of said infants in full, and leave a residue for defendant Leonard more than the amount he has received from said estate. Said Purviance was financially responsible from the time of his appointment up to November 14, 1894, on which day, in a proceeding which the defendant Leonard, as residuary legatee, had instituted, to compel said executor to account before the surrogate, said guardian caused to be entered in said Surrogate’s Court a decree requiring said Purviance, as executor, to pay to the guardian of said infants $3,606 in full for their legacies on or before January 1, 1895. . Since that date said Purviance has been and is wholly insolvent, has not-accounted for, or paid to the parties entitled thereto, the moneys of said estate, but has absconded to parts unknown. Prior to the year 1894 said Purviance paid over to defendant Leonard, as residuary legatee, a sum exceeding $5,000, but not the whole amount which he would have been entitled to receive had said executor paid said legacies in full and accounted for the balance of said estate. From the time of the appointment of said guardian, March 14, 1890, to November 14,1894, said guardian took no proceedings to collect the legacies due to said infants from the estate of Dorothea Leonard, deceased, or to prevent said legacies remaining in the custody and control of said executor. During that time said executor paid to said guardian divers sums upon said legacies, amounting to the sum of $675. Since the 14th day of November, 1894, said infants have recéived from said estate the sum of $150. On July 31, 1895, letters testamentary to said Purviance were revoked by the Surrogate’s Court, and this plaintiff was appointed administrator with the will annexed of said estate, in his place.</p> <p>Upon these facts the referee found, as conclusions of law, that the plaintiff was entitled to judgment against the defendant Leonard for $3,591.35 and costs, and upon this report judgment was entered April 4, 1896, in.favor of plaintiff against defendant Leonard for that sum, together with $169.67, costs. Exceptions to the conclusions of law only were properly taken, and this appeal is from that judgment.</p>

<p>Conversion—rights of chattel mortgagees, as against purchasers of the property of one mortgagor sold at a sheriff’s sale under an execution against the other mortgagor — a mortgagee may recover the entire value of the property as against a stranger.</p> <p>In an action brought by the assignees of a chattel mortgage given by one George Teeter and Delphine, his wife, to secure a debt owing by the husband to the mortgagee, it appeared that the consideration of the mortgage was expressed as $350, while the amount of the debt owed by Teeter was $235. It was claimed that part of the mortgaged property, which belonged to Delphine Teeter, was added to the mortgage and more than $100 was added to the amount thereof with the purpose of defrauding her creditors, but no proof was made upon the trial that she had any creditors. After the plaintiffs had become by assignment the owners of the mortgage, a creditor of George W. Teeter recovered a judgment against him, and the sheriff sold the mortgaged property belonging to Delphine Teeter to the defendants.</p> <p>The plaintiffs claimed in their complaint the possession of the property under the clause usual in chattel mortgages, allowing the mortgagor to take possession whenever he deemed his demand to be unsafe.</p> <p>Held, that the mortgage was not fraudulent as being one given to hinder, delay and defraud the creditors of Delphine Teeter, as no proof whatever had been made that she had any creditors at the time when the mortgage was executed;</p> <p>That as the defendants were not creditors of Delphine Teeter, and as she had at all times insisted upon her title, the plaintiffs, holding under her by mortgage duly recorded, were entitled to recover the property as against the defendants, who, as mere purchasers at the sale, were strangers to the title and had no right to redeem from the mortgage, nor to an accounting from the plaintiffs as to the amount still remaining unpaid upon the mortgage;</p> <p>.That, as against the defendants, the plaintiffs were entitled-to recover the full value of the property; and that, as to any surplus of value, over and above the amount due on the .mortgage, the plaintiffs would stand as trustees, to the extent of the interest of the mortgagor in' the property.</p> <p>■ Appeal by the plaintiffs, James Y. Bigelow and another, from an ..order of the: Supreme Court, made at the Yates Circuit and entered in the office;of the clerk of the county of Yates on the 11th day of December, 1895, denying the plaintiffs’ motion for a new trial'made upon the minutes, after a trial at the Yates Circuit on the 2d day of December, 1895, which resulted in a verdict in favor of the plaintiffs for twenty-four dollars. .</p>

<p>Appeal by the defendant, Francis G. Babcock, from an order of the Supreme Court, made at the Steuben Special Term and entered in the office of the clerk of the county of Steuben on the 1st day of April, 1896, denying his motion for a retaxation of the plaintiff’s costs so as to disallow certain items thereof objected to by him, and •also for an order directing the clerk of the county of Steuben to tax certain costs which the defendant claimed to have' become entitled to subsequent to the making of an offer' of judgment in the action..</p>

<p> Mistake of fact—payment to a wife of insurance moneys in the belief that her husband, the insured, is dead—recovery thereof—consideration. </p> <p>The wife, a beneficiary under a policy of insurance upon the life of one Crandall, who was supposed to have been drowned, recovered from the insurance company the amount of the policy. Subsequently, a rumor obtaining currency that Crandall was alive, she deposited the avails of the insurance policy with a third party in trust to hold them for three years, and if the rumors proved to be true, to turn them over to the insurance company; if not, to her. These avails were, at the end of the three years, returned to her. ■ Thereafter fresh rumors arose and she made a second deposit in trust of such avails, and during the period of the second deposit it was shown that Crandall was alive.</p> <p>Held, that, as the money was paid to her under á mistake of fact, she was bound to pay over to the insurance company the proceeds of the policy;</p> <p>That her legal obligations were in no way changed by reason of such deposits in trust having been made;</p> <p>That the deposits were made upon a sufficient consideration, as. she thereby ■ escaped the danger of being sued and of publicity in this matter.</p>

<p>Motion by the respondent to dismiss an appeal pending in the Appellate Division of the Supreme Court of the first department.</p>

<p>Practice — laches in filing a case on appeal — what must be shown to open a default.</p> <p>An attorney will be held to reasonable diligence in filing his printed case upon an appeal; on an application to open a default in filing a. case it is necessary not only to show good grounds for the delay, but also satisfactory reasons why an application for an extension of time was not made before the time expired.</p>

Appeal by the defendants, John Munroe 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 4th day •of November, 1895, upon the verdict of a jury rendered after- a trial at the New York Circuit. The facts are more fully stated in the dissenting opinion of Ingraham, J.

Appeal by the plaintiffs, William B. Millard and others, from a judgment of the Supreme Court in favor of the defendant Edward P. Steers, entered in the office of the clerk of the county of Kew York on the 31st day of October, 1895, upon the decision of the court rendered after a trial at the Kew York Special Term dismissing the plaintiff’s complaint.

Appeal by the petitioner, Barbara Ellensohn, from a decree of the Surrogate’s Court of the county of New York, entered in said court on the 18th day of February, 1896, dismissing her petition for a revocation of the last, will and testament and codicil of Antoine Ruppaner, deceased. , •

Appeal by the defendant, The Berlin and Jones Envelope Com- ' pany, 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 14th day of April, 1896, 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 complaint.

Certiorari issued out of the Court of Common Pleas for the city and county of New York, and attested on the 3d day of October, 1895, directed to Edward C. O’Brien and others, as dock commissioners of the city of New York, constituting the board of the department of docks of the city of New York, commanding them to certify and return to the clerk of. the Court of Common Pleas for the city and county of New York alb their proceedings relating to the removal or dismissal of the…

<p>Public nuisance — courts will not ordinarily interfere with efforts of health officials to suppress a nuisance.</p> <p>A court should not, even if it lias the power, except upon good cause shown, interfere in measures taken by public officials to protect the public health.</p> <p>An injunction to restrain the health board of New York city from interfering with the occupants of a building in that city, which by the affidavits read on behalf of that board appeared to be in an unsanitary condition, refused.</p>

Motion by the plaintiff, James Talcótt, for a new trial upon a. case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York on the-27th day of March, 1896.

<p>Selling beer to minors — trial in Special Sessions — Penal Code, § 290, not repealed by chapter 112 of 1896.</p> <p>The provisions of the Liquor Tax Law (Chap. 112 of 1896); making the sale of liquor to a minor under sixteen years of age a misdemeanor, and providing that the offense “shall "be prosecuted by indictment * * * and by trial in a court of record having jurisdiction for the trial of crimes of the grade of a felony,” are not exclusive and do not repeal by implication that provision of the Penal "Code which makes it a misdemeanor to sell liquors to a Child actually' or "apparently under the age of sixteen years —an offense cognizable in the Court of Special Sessions of the city and county of New York, except in a case where the accused demands a trial by jury or where the case is subsequently removed into the Court of General Sessions. ...</p> <p>Repeals by implication are not favored in the law, and a statute is not to be deemed repealed by implication by a subsequent statute upon the same subject, .unless the two are manifestly inconsistent with and repugnant .to each other, or unless a clear intention is disclosed on the face of the lgter statute to repeal the former one.</p>

<p>Appeal by the defendant, Ashbel P. Fitch, as comptroller 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 1st day of June, 1896, granting the relator’s motion for.a peremptory writ of mandamus directed to the defendant commanding him to draw his warrant upon the chamberlain of the city of New York in favor of the relator for the sum of $9,416.50.</p>

<p>Appeal by the defendant, David H. King, Jr., from a judgment of the Court of Common Pleas -for -the city and county of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 21st day of December, 1895, upon the verdict of' a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 19th day of' December, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Elevated, railroads—a request of an owner that rapid transit commissioners direct ■ the construction of a road, is not a waiver of his claim for damages.</p> <p>The fact that a property owner joins in a request to rapid transit commissioners, appointed under chapter 606 of the Laws of 1875, that they determine that an elevated road ought to be constructed and operated over the center of a street upon which the property owner’s land abuts, does not constitute a waiver of the right on the part of such property owner to claim the damages resulting to his property from the subsequent construction of the railroad ou the street.</p>

<p>Appeal-by the defendant, The People’s Traction Company, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of July, 1896, continuing pendente lite an injunction restraining the defendant Fitch, as comptroller, from continuing the sale of the franchise of constructing, maintaining and operating a certain street surface railway in the city of Hew York, and from entertaining, receiving or accepting any further bids at such sale.</p> <p>The injunction order also restrained the three corporations defendant from making any further bids at such sale or from receiving or accepting an award' of such franchise upon any bid heretofore made by either of them. The sale was pursuant to a resolution of the common council and in accordance with the Railroad Law (Laws of 1890, chap. 565, § 93). It was adjourned to the 9th' day of October,- 1895. Upon such sale, after two very small bids, the Horth Hew York City Traction Conqpany bid thirty-nine and twelve-sixteenths per cent. Immediately thereafter the People’s Traction Company bid ninety-seven per cent for the first five years, and ninety-five per cent thereafter. All such bids were additional to the percentage required • by the railroad statute, namely, three percent for the first five years and five per cent thereafter. Therefore, tire aggregate bid of the People’s Traction Company was 100 percent of its gross receipts.</p> <p>The defendant the Horth Hew York City Traction Company immediately thereafter bid 101 per cent, and the People’s Traction Company at once protested against the reception of any further bid beyond its bid of 100 per- cent, claiming that no legal bid could be made to pay any percentage greater- than 100 per cent.</p> <p>The protest was overruled, and the bid of 101 per- cent received, and thereupon the People’s Traction Company bid 1000 per- cent. The bidding continued until the close of business hours, the last bid being 6975 per cent by the defendant the Horth Hew York City Traction Company; and thereupon, the auction sale was suspended and an announcement made that it would be continued on the next day, October tenth, at twelve o’clock noon, at the same place.</p> <p>The Southern Boulevard Company made no bid after three and a half per cent.</p> <p>On the 10th day of October, 1895, before -the hour fixed for resuming the sale, an action was commenced in the Supreme Court by the Southern Boulevard Company, as plaintiff, against the People’s Traction Company, the North New York City Traction Company and Ashbel P. Fitch, comptroller. In said action an order was granted by a justice of the Supreme Court enjoining further continuance of the sale until further order of the court. Subsequently the action was tried, and a judgment was entered, therein dismissing the complaint of the Southern Boulevard Company upon the ground that it had no grievance to be redressed, because its bid of three and one-half per cent had been largely exceeded by subsequent bids made in good faith by the. two competitive companies. This judgment was subsequently affirmed by this Appellate Division. (5 App. Div. 330.)</p> <p>On the thirteenth day of June this action was commenced, and the injunction Order under review was obtained and served upon the respective parties on the same day.</p> <p>The relief demanded in the present complaint is as follows:</p> <p>1. If the court finds that the bidding had passed beyond all reasonable and valid bids, that the court determine in such case which is the highest legal and valid bid, and direct the comptroller' to award the franchise accordingly; or,</p> <p>2: Direct that the biddings be canceled and the proceedings be adjudged to be null and void, and direct a resale under such terms and conditions as may be lawful, and,</p> <p>3. That the . court render such judgment as will protect the plaintiff’s interest in said franchise, and instruct the said defendant Ashbel P. Fitch, comptroller, aforesaid, as to his official duty in the premises, and that the court in the meantime restrain and enjoin said corporation defendant from purchasing said franchises, and said .Ashbel P. Fitch frormawarding said franchise to either of the bidders-at said anction sale until the hearing and determination of this action.</p>

<p>Certiorari issued out of the Supreme Court" and attested on the 9th day of January, 1895, directed to Daniel Lord and others, commissioners, appointed under chapter 537 of the Laws of 1893, and chapter 567 of the Laws of 1894, commanding them to certify and return to the office of the clerk of the county of Hew York all and singular their proceedings relating to the award of damages to the claimant, Rachel Purdy, sustained through injury to her real property, caused by the change of grade of the railroad tracks of the Hew York and Harlem Railroad Company in the annexed district of the city of Hew York.</p>

<p>Appeal by the plaintiff, George W. Chesley, as administrator, etc., of William P. Chesley, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of .the clerk of the county of New York on the 18th day of May, 1896, vacating an order made by a justice of the Supreme Court on the 19th day of March, 1896, directing the service of the summons by publication.</p> <p>The complaint alleges the existence of a co-partnership between the defendant, a resident of Massachusetts, and the plaintiff’s intestate, William P. Chesley, which was dissolved by mutual consent on April 4, 1892; that said firm did business in the cities of New York and Boston; that William P. Chesley died on October 12, 1895, and plaintiff was thereafter appointed his administrator by the Surrogate’s Court of the county of New York; that on December 17, 1895, plaintiff demanded an accounting as to the affairs of the firm, which the defendant has failed to render ; that the defendant is largely indebted to the co-partnership, and that there are assets of the co-partnership within the State of New York. The judgment demanded is, that an account, be taken as to all the transactions of the co-partnership, and that the defendant pay to the plaintiff the sum found due upon such accounting; also, that a receiver be appointed of the assets of the' co-partnership “ with the usual powers and duties' and under the usual directions,” and that the defendant be restrained from interfering with, or disposing of, the same.</p>

<p>Specific performance—a manifest error in a description in the me of “ northwest ” for “ southwest,” corrected—discrepancies of description in the record title— different surveys—correction by a referee’s deed of a misdescription in a complaint.</p> <p>Where the word “northwest” is used by mistake instead of “southwest” in a, deed, and three sides of the lot in question are accurately described, and the literal reading of the deed would throw a great portion of the lot into a public street, the word “northwest” will be read “southwest,” where such reading-will make the deed cover the lot which the predecessor in title of the plaintiff' in an action for specific performance actually owned.</p> <p>In an action for the specific performance of a contract to purchase real property, it appeared that one Lawrence, being seized of the property in question, conveyed it to Thomas White by an incorrect description, which, by employing “ northwest ” for ‘ ‘ southwest,” threw a large portion of the property into-a public street. White died in 1814, devising it by a correct description. His. devisee, Ann White, conveyed it by the description in the deed from Lawrence, but described it as the same property devised to her by Thomas White. Subsequent grantees conveyed it by the same description and reference employed</p> <p>■ by Ann White. The last of these grantees, Speaight, died intestate; the property was partitioned, and the plaintiffs’ testator bought at the sale. The referee’s deed recited the prior proceedings, and conveyed the property by a correct description; but made no reference to the devise by Thomas White. The premises were, however, described as being the premises of which Speaight died seized, and which were conveyed to him by a specified deed.</p> <p>Held, that the reference to Thomas White’s will in deeds subsequent thereto rectified the incorrect description contained in these deeds — the effect being the-same as though the deeds had employed the description contained in White’s, will;</p> <p>That the omission in the referee’s- deed of the reference to the devise by White was unimportant; that the referee’s deed conveyed title to the property actually owned by Speaight, as against his heirs or parties claiming under them subse- ' quently to the partition’ proceedings; and that such subsequent grantees or incumbrancers had notice of the prior instruments whereby Speaight acquired title to the property, wherein the reference to White’s will appeared;.</p> <p>That, in view of the foregoing facts, and assuming that the descriptions by metes and bounds in the various deeds should be construed literally, the plaintiffs’ testator acquired a clear record title from Thomas White, by a chain of instruments containing a sufficient description and dating from 1814, when the devise from White took, effect; and that this, in connection with the adverse possession thereunder, gave him a title free from reasonable doubt, and hence marketable.</p> <p>The fact that surveys recently made show the description by metes and bounds in prior deeds to be inaccurate', is no ground for rejecting the title where the party contracting to sell has title to a plot of the proper size, and there is no encroachment upon the lands of others.</p>

Appeal by John N. Hayward and others, holders of certain coupons, 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 6th day of April, 1896, denying their motion to compel the purchasers on foreclosure of the property of the defendant, the.

<p>Appeal by the plaintiff, Theron C. Crawford, 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 27th day of April, 1896, upon the dismissal of the complaint directed by the court after a trial at a Trial Term of the Supreme Court held in and for the ¡county of New York, and also from an order entered in said clerk’s office on the 1st day of May, 1896, denying the plaintiff’s motion for a new trial.</p>

<p>Appeal by the defendant, Jacob Hew, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 18th day of June, 1895, upon the verdict of a jury rendered after a trial at the Hew York Circuit, and also from an order entered in said clerk’s office on the 18tli day of June, 1895, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was brought to recover the damages occasioned to the infant plaintiff, by reason of an accident occurring in the use of an elevator owned by the defendant in the building No. 65 South Fifth avenue, New York city. In front of the elevator was a gate, at the top of which there was an open space, over which the plaintiff, who had just got 'off the elevator, put his head, which was caught between the gate and the elevator car. The gate was closed when the plaintiff* turning around, saw the elevator going down, and put his head over the gate to ask the elevator man where he was going. . . .</p>

<p>Equity — an action to avoid a deed and also to set aside a will proper when they are parts of a single frcmd.</p> <p>Where the complaint in an action, brought to avoid a deed and to set aside the probate of a will, alleges that all the instruments were obtained by undue influence and in furtherance of a design to secure to the defendant the property of the father of the plaintiff, and, in effect, to induce the father to disinhe-rit.his children, such a complaint sets forth but a single scheme in furtherance of which the instruments were procured; and the fact that a considerable time intervened between the first and last steps in the perpetration of the alleged fraud does not affect its inherent quality nor the entirety of the cause of action.</p> <p>While it is the rule that courts of equity have not assumed jurisdiction merely to set aside a will at the instance of an heir at lawy the rule has had exceptions, and in .such exceptional cases, the court, having jurisdiction of an action to set aside deeds, may bring in the whole subject of a single fraud with all its. incidents, including a will, in order that the rights of the parties may be settled in a single suit without multiplicity of actions.</p> <p>An action to set aside the probate of a will is authorized by section 2653a of the • Code of Civil Procedure, which, by allowing “ any person- interested in a will or codicil admitted to probate ” to test the validity of the probate in the Supreme Court, extends the remedy provided by the statute to heirs at law and next of kin.</p>

<p>Appeal by the ¡ilaintiffs, Charles Mulford and others, judgment creditors, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the -26tli day of August, 1896, denying the plaintiffs’ motion to punish the defendant, the judgment debtor, for contempt of court.</p>

<p>Appeal by Julia Comins, as administratrix, etc., of James Comins, .deceased, from an order of the Surrogate’s Court of the county of •New. York, entered in said Surrogate’s Court on the 10th day of July, 1896, directing her to file an inventory.</p> <p>The application was- made upon an affidavit of Ella. Viola Ward, stating “that she is the duly adopted daughter of James M. Comins, deceased, and is the only heir at law and next of kin of the said James M. Comins, deceased.”</p>

Appeal by the defendant, Charles Gahren, from a judgment of the Court of Common Pleas for the city and county of Hew York an favor of the plaintiffs, entered in the office of the clerk of the county of Yew York on the 9th day of Décember, 1895, upon the verdict, of a jury rendered after a trial at a Trial Term of said court, and also from an order entered in said clerk’s office on the 11th day of December, 1895, denying the defendant’s motion for a new trial made- Upon the…

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

<p>Appeal by the plaintiff, Serena Toch, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the cleric of the county of Hew York on the 3d day of July, 1896, nxmo fro intnc as of the 12th day of June, 1896, granting the defendant Maximilian Toch an extra allowance of costs.</p>

<p>Foreign will — when our courts will take jurisdiction of trusts of personalty — English rule where there is a gift of a life interest and the remainder fails — the property passes to those who were next of kin when the testator died, and a life tenant, who was then the sole next of kin, takes all.</p> <p>Where a contest arises over the construction of .a trust in personalty created under a foreign will, and the question is to be disposed of by the rules of foreign law, the ordinary course would be to remit the whole matter to the courts of the foreign State. But where the property in question is claimed by residents of the State of New York, who assert title to the property under the will of the testator, and the property itself is within this jurisdiction, and all the parties who claim to be entitled are before the court, the courts of the State of New York will not subject resident claimants to the expense, delay and uncertainty of judicial proceedings abroad, but will take cognizance of the matter.</p> <p>In cases of intestacy under foreign wills, questions relating to the distribution of personal property must be determined according to the foreign law.</p> <p>Under the rule of distribution in England, where there is a gift of a life interest, and the remainder fails, and the property passes to the next of kin, they are to be determined as of the date of the testator’s death, and' the fact that the tenant for life is the sole next of kin does not exclude her from taking the whole estate.</p> <p>Where the courts of the State of New York determine that resident claimants are not entitled to a trust fund of personal property created by an English will, the courts of the State of New York, notwithstanding the fact that all the claimants are represented in them, will not make any award in the matter, but will direct that the fund or property be transmitted to trustees in England, who have been- there appointed by'the High Court of Justice, to the end that distribution may be made in accordance with the statute of that country. ■</p> <p>The will of a resident of England, which was duly probated there, gave his residuary estate, which was directed to be converted into personalty, to his executors “in trust for all my children pr any, jny child, who, being sons or a son, shall attain the age of twenty-one years, or being daughters or a daughter' shall attain that age or marry ; and if more than one in equal shares, provided always and I declare that the portion or fortune under this my will of my said daughter Amelia Hannah Taylor, who is at present my only, child, shall be held by the trustees or trustee for the time being of this my will upon trust that they or he do and shall during the life of my said daughter pay the interest and annual income of her said portion or fortune to her, * * - -and from and after her decease do and shall hold the same portion or fortune and the interest arid iricomri’thereof in trust ior all her children living at her deceaseand for the issue then living of any her child or children who shall then be dead.”</p> <p>The daughter, Amelia Hannah Taylor, was the only issue which the testator left. She survived the testator and died, after marriage, without ever having had issue.</p> <p>Held, that the testator died intestate as to the remainder in the residuary estate;</p> <p>That the fact that the testator had directed that, in the event of his daughter’s death before she attained her majority or married, the remainder in the residuary estate should go to certain designated persons, did not evince an intention on his part that if such'remainder should fail because the daughter left no issue it should go to such designated persons;</p> <p>That upon the daughter’s death without issue the remainder passed to her as. the sole next of kin of the testator. ■</p>

. Appeal by the plaintiff, Rufus 0. Parker, 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 28th day of January, 1896, upon the verdict of a jury rendered after a trial at. a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 20th day of February, 1896, denying the plaintiff’s motion for a new trial made upon…

<p>Negligence — breaking of an eyebolt holding a wire spanning the street between trolley poles — a master is not liable for a latent defect in an eyebolt purchased from a reputable firm.</p> <p>In an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendant, who was a contractor for constructing trolley roads, it appeared that the plaintiff was working at the top of an iron pole, when an eyebolt which held a wire that spanned the street, broke, causing a jarring of the pole, which threw the plaintiff to the sidewalk. The eyebolt had been purchased of a reputable firm, had been put in place by a fellow-servant of the plaintiff, had no defect which could be detected by an external examination, and should, if in good condition, have sustained a strain of 2,000 pounds. It had, however, been welded, and it parted at the place of the weld.</p> <p>Meld, that the plaintiff was not entitledto recover;</p> <p>That the master had performed all the duty Which he owed his servant.</p> <p>The court upon the trial excluded the question : “ Q. Did any of these ring-bolts break the day or a day or two previous to this accident ? ” And also the further question : “ Q. Previous to that ?”</p> <p>Meld, that the first question excluded was incompetent for the reason that the breaking óf a similar bolt upon the day of the accident did not tend to prove that the defendant had notice prior to the accident that the bolts were defective;</p> <p>That the second question was improper because it appeared to be directed to a single case of breakage, and there was nothing to show that counsel intended to prove such frequent breakages as would tend to indicate weakness in the lot of eyebolts generally;</p> <p>That the breaking of one eyebolt, through a defective welding, was not evidence of the character of the entire lots of such bolts.</p> <p>O’Brien, J., dissented.</p>

<p>Practice—a judgment entered is not void although not folioed—service of a copy with notice of its entry limits the time to appeal — return of an unfolioed copy, necessary.</p> <p>A judgment entered pursuant to the direction of the court, though not folioed, is not void, but merely irregular, and service of a copy thereof, with notice of its entry, will be effective to limit the time in which an appeal can be taken therefrom, unless the judgment be set aside because of irregularity.</p> <p>If a party desires to take advantage of the fact that the copy of a judgment served upon him was not folioed, he is bound to return it and to apprise the opposing attorney of the irregularity to which he objects.</p>

<p>Police department — removal of an officer thereof for being in' a liquor saloon — the decision of the police commissioners, though unusually severe, will not he disturbed.</p> <p>Although the dismissal from the New York police force of an officer thereof may, in the judgment of the court, be an unusually severe punishment, under the circumstances established by the evidence, for the offense of being in a liquor saloon, the court will not reverse the decision of the police commissioners.</p>

<p>Appeal by the defendants, The Metropolitan Elevated Railway Company 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 31st day of December, 1895, upon the decision of the court rendered after a trial at the New York Special Term.</p> <p>This action was brought for ah injunction restraining the defendants from maintaining, continuing or operating then’ elevated railroad in front of the plaintiffs’ premises, and to compel them to take down and remove the same, and. for the recovery of damages.</p>

Appeal by the plaintiff, Lawrence P. Farley, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk'of the county of Yew York on the 25th day of April, • 1896, upon the dismissal of the complaint directed by the court after á trial before the court and a jury at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 22d day of April, 1896, denying the…

Appeal by the defendant, Catharine Foerster, as aaministratrix, etc., of Joseph Foerster, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 20th day of June, 1894, upon the verdict of a jury rendered after a trial at the Hew York Circuit, and also from an order entered in said clerk’s office on the 6th day of July, 1894, denying the defendant’s motion for a new trial made upon the…

• Appeal by Frederick D. Kilburn, Superintendent of Banks of the State of New York, and another, from an order of the Supreme Court, made at the N ew York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1896, appointing temporary receivers of the Murray Hill Bank. The facts are more fully stated in the dissenting opinion of Williams,. J.

<p>Appeal by Spencer Trask and another, as receivers of the Murray Hill 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 25th day of September, 1896, denying their motion to compel the State Superintendent of Banks to deliver to them, as; such receivers, the books, papers and assets of the bank, or for a peremptory writ of mandamus to compel such delivery, and to restrain said Superintendent of Banks from turning such books and papers and assets over to any other person.</p> <p>The facts are fully stated in the opinion of Williams,- J.</p>

<p>Will,— execution of— the witnesses must see the testator sign or he must acknowledge his signature to witnesses who then see it — 3 2?. 8. 68, § 40; Code of Oiril Procedure, §§ 3618, 3630.</p> <p>A will having the ordinary attestation clause, reciting that the testator signed the will in the presence of the attesting witnesses, had three subscribing witnesses, one of whom was dead, and as to his handwriting no proof was made. One of the surviving subscribing witnesses testified that he first saw the will upon the day of its date; that, while he was visiting the studio of the other surviving subscribing witness, the testator came in and said he would like their signatures to his will. This witness said that his impression was that the testator produced the will, stating that it was his will, and asked the witnesses to sign it, and that all three witnesses did sign it. The witness said he could not swear that the signature of the testator was on the will when.' he witnessed the paper, but he was sure that it was there before the witness left the room. The other surviving subscribing witness said that the testator brought the paper to his studio and asked him to sign his will; that he signed it; that the other subscribing witnesses were in the room at the time, and that the testator read the attestation clause to the witness before he was requested to sign as a witness. He said he had no recollection of seeing, the testator sign the will, and that the testator held the will in such a way that scarcely anything was to he seen, and that he only saw the attestation clause, the signatures of the witnesses that were there and the place where he himself. was to sign. He did not know whether the will was signed or not.</p> <p>Held, that the will was improperly admitted to nrobate;</p> <p>That a will must either be signed in the presence of the witnesses, or the testator must acknowledge his subscription of the will to subscribing witnesses who then see his signature.</p> <p>A signature neither seen, identified nor in any manner referred to as a separate and distinct thing, cannot in any just sense be said to be acknowledged by a reference to the entire instrument by name, to which the signature may or may not at the time be subscribed.</p> <p>Williams and O’Brien, JJ., dissented.</p>

<p>Appeal by the defendant, the General Electric 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 19tli day of August, 1896, directing that an open commission issue in the action to examine various individuals residing in the city of Cleveland, Ohio.</p>

<p>Contracts—not ref wring to one another, presumed to be separate— release construed most strictly against the one seeking the benefit of it.</p> <p>One Joseph Ryan entered into two contracts with the defendant, both executed the same day, the first for equipping premises belonging to him (Ryan) with wires and other appliances for theuse of electricity, and the second for furnishing electricity. In the second contract there was a provision which released the defendant from all claims resulting from the use of an electric current, when the wiring and electrical equipments on the premises of the consumer had been approved by the New York board of Are underwriters or other proper authorities.</p> <p>In an action brought to recover the damages resulting from a fire ■ upon the premises, resulting from defective work done under the first contract, the court directed a verdict in favor of the defendant.</p> <p>Held- that the provision cited from the second contract was not necessarily a defense to the action;</p> <p>That, as the contracts did not refer to each other in any way, the inference was, from the contracts themselves, that they were separate and distinct;</p> <p>That, under the circumstances, the question whether the parties understood that the contracts were parts of one agreement, and not two separate agreements, should have been submitted to the jury;</p> <p>That, when a release from liability is alleged to have been made, the contract should be strictly construed as against the party seeking to thus absolve itself from a.liability which it would otherwise incur.</p>

Appeal by the plaintiff, Frederick C. Hoormann, from an order of the Supreme Court, made at the New York Special Terra-and, entered in the office of the clerk of the county of Nqw York on the 26,tli day of August, .1896, granting a. .motion made by George Sehubaeh, a junior attaching creditor, to vacate the plaintiff’s, attachment against the defendant, because of the insufficiency- of the affidavit upon which the attachment was granted.

Motion by the defendants, Jeremiah J. Miillen and another, for a new trial upon a case containing exceptions, ordered to be heardi at the Appellate Division in the first instance upon the verdict of a: jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York on the 23d day of March, 1896.

Appeal by the defendant, Theodor Reichmann, 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 18th day of December, 1893, xipon the verdict of a jury rendered after a trial at the New York Circuit.

Appeal by Lewis Morris, a son of Charles M. Morris, named in the will of Helen Morris, a daughter of Richard R. Morris, named in the third clause of the will of Jacob W. Morris, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 4th day of August, 1896, construing the last will and testament of Jacob W. Morris, deceased, as orders, adjudges and decrees that the only person entitled to participate…

<p>Poor person—an infant over fourteen may sue in forma pauperis aliJiough Tier gum'dian ad litem is a responsible person— Oode of Civil Procedure, §§ 458,459.</p> <p>"Where the petition of an infant over fourteen years of age, asking leave to sue as a poor person, strictly' complies with the requirements of sections 458 and 459 of the Code of Civil Procedure, and is verified by a guardian ad litem, the application should not be denied merely because it appears from .the moving papers that the guardian ad litem, is a responsible person.</p>

Appeal by tbe defendant, the Forty-second Street, ManhattanviUe.and St. Nicholas 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 14th day of March, 1896, upon the verdict of a jury rendered after a trial at a Trial Term of the Supreme Court held in and for the county of New York, and also from an order entered in said clerk’s office on the 28th day of November, 1896,…

Appeal by the defendant, Elwood S. Hand, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of ■ the clerk of the county of Hew York on the 12th day' of June, 1896, directing him to serve a bill of particulars.

<p> Satisfaction of a mortgage by trustees for creditors for less than its face—when authorized. </p> <p>Where a mortgage is made to trustees to secure creditors of the mortgagor whose claims amount to some §30,000 (the trustees being included in such creditors and entitled to preference in payment), and the mortgaged premises are sold at public auction, subject to two prior mortgages amounting to some §100,000, for only §6,000, an agreement by the mortgage trustees to accept such §6,000 and give a satisfaction piece of their mortgage is, in the absence of proof of fraud on their part, within the scope of their authority.</p> <p>It is not necessary that the creditors should execute the satisfaction piece.</p> <p>Note.— The other cases of this term will be found in the next volume, 10, App. Div.— [Rep.</p>