Volume 9 — New York Supplement

Action by William L. Stow against Martin Y. B. Stacy. Defendant appeals from an order denying his motion to vacate an attachment against his property.

Action by Joseph Grafton against William Moir, to enjoin defendant from building over and narrowing a carriage or alley way, about 18 feet wide, running northerly from Thirty-First street along the rear of the four lots on the north-easterly corner of Thirty-First street and Fifth avenue.

An action for the partition of real property, brought by Cleveland D. Fisher, Louisa F. Waller, and Annie S. Waller against Mary C. D. Fisher, Catharine C. Ferris, and Charles Ferris, her husband, impleaded with others. Plaintiff’s based their right to bring the action upon a voluntary conveyance to them by their aunt Eliza Fisher. The deed was procured by the plaintiff Cleveland D. Fisher, who attended to all the business affairs of the grantor.

The action was in the nature of a quo warranta, brought by the attorney general, to annul the charter of the defendants, or to vacate and annul the additional franchises granted to it by chapter 461, Laws 1860, because of the non-user of said franchises. Judgment of forfeiture of the franchises granted by the act of 1860 was awarded, and the defendant perpetually in-joined from their exercise. Defendant appeals therefrom.

<p>1. Executors and Administrators—Proof of Claims.</p> <p>In an action for services rendered and for goods furnished to defendant’s intestate, the fact that plaintiff was the step-son of decedent, and a member of his family, does not require him to prove an express contract by decedent to pay, but it is sufficient if he proves facts and circumstances showing that decedent expected to pay, and plaintiff to receive, the value of such services and goods.</p> <p>2. Same.</p> <p>Evidence that decedent was paid for the education and maintenance of plaintiff during plaintiff’s minority; that plaintiff worked for him during such time, and until he was about 23 years old, when they had a settlement; and that decedent had stated after the settlement that he owed plaintiff for his work and for matters existing between them,—shows that both parties intended that plaintiff should be paid for his services and property.</p> <p>8. Same—Evidence.</p> <p>The fact that plaintiff gave decedent a note for money received of the decedent does not disprove an agreement between them that plaintiff was to be paid for his services and property, where decedent stated that he did not want a note, and plaintiff insisted on giving it because it would be useful when they came to settle.</p> <p>4. Same—Statements of Administrators.</p> <p>Statements by the administrators, made at the time they were engaged in trying to settle plaintiff’s claim, are competent evidence in behalf of plaintiff.</p> <p>5. Witness—Transactions with Decedent—Examination of Administrator.</p> <p>Testimony of plaintiff’s mother, the widow and administratrix of decedent, as to conversations between herself and decedent, was not prohibited by Code Civil Froc. N. T. § 829, rendering a party to an action against an administrator incompetent to testify as to a personal transaction had with intestate, unless the administrator testifies in his own behalf; she being only a nominal party to the action, and her testimony being against her interest.</p> <p>6. Same.</p> <p>Where a transaction between plaintiff and decedent was shown by defendant’s examination of plaintiff, it is competent for plaintiff to testify in his own behalf in relation thereto.</p> <p>7. Costs—Allowance—Report of Referee.</p> <p>An order confirming the report of the referee, and awarding costs, will not be disturbed on appeal from the judgment, where the order shows that it was based on affidavits, none of which are set out in the appeal book.</p>

<p>Appeal from special term, Delaware county.</p> <p>Action by James Boyle against William Youmans. Judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Thomas J. Larkin against William C. Taber. Defendant appeals from a judgment for plaintiff entered on the report of a referee.</p>

In an action by Matthias H. Arnot and others against Samuel P. Wright, after judgment for plaintiff, and the issue of an execution, an order was obtained for the examination of defendant. From the order denying his motion to set aside the order for his examination, defendant appeals.

Action by Fannie Martin against the Equitable Accident Association of Binghamton, IT. Y., on a certificate of membership issued by the defendant, which was in the nature of a policy of insurance against accident.

An action by Isaac Gr. Jenkins, as receiver of the firm of Bond & Jenkins, against Stephen Lefaiver and Ozro M. Bond, from that portion of a judgment which reformed two contracts between him and his co-defendant. Defendant Bond appeals.

<p>Appeal from judgment on report of referee.</p> <p>Action by Eliza W. Brown against Louisa Danforth, Esther Sanborn, David Wilber, and Sylvester Diefendorf. Plaintiff appeals from a judgment in favor of defendants Sanborn and Danforth dismissing the complaint.</p>

Action by Merritt Knight against Fowler Willson, Jr., originally brought in a justice’s court, wherein plaintiff recovered a judgment, which was reversed on appeal to the county court. Plaintiff appeals.

<p>Husband and Wive—Rights oe Subvivob.</p> <p>A married woman died intestate, leaving no descendants, and her personal estate came into the possession of her husband, who assigned a mortgage, forming part thereof, to plaintiff; sufficient of the estate being reserved by him to pay all debts. Held, that the transfer was valid as between the parties, and that the husband could not afterwards claim the avails of the mortgage simply because he had not been appointed administrator at the time of the transfer.</p>

Action by Julia C. Ludington against George B. Garlock for rent of a bouse from October 20 to November 20, 1888. The action was originally commenced before a justice of the peace, who rendered judgment for defendant.

<p>Motion to Dismiss Appeal—Pendency of Negotiations for Settlement.</p> <p>The filing of notice of a motion to dismiss an appeal for failure to serve printed papers, ends, so far as the appeal is concerned, any negotiations for a settlement that may he pending; and the pendency of such negotiations cannot he given as an excuse for such failure on hearing of the motion.</p>

Action by William L. Pfeiffer against Adelia S. Pfeiffer for divorce on the ground of adultery. Two issues submitted to the jury were answered in the affirmative, and defendant moves to set aside the verdict as contrary to the evidence, and for a new trial.

Action by Stephen Murphy and others against the Gold & Stock Telegraph Company. Defendant moves to offset costs allowed to abide the event.

Action by William O. Allison against Harvey N. Loomis, and Florence Y. Loomis, and others.

Action by Joseph L. Spofford and others against Pauline S. Pearsall and others. There was a judgment for plaintiffs and defendant Pauline S. Pearsall appeals.

<p>Wills—Construction—Bulb in Shelley’s Case.</p> <p>A testator devised land to Ms son for life, and after Ms death, “to my daughter, Margaret, for and during her natural life, and after her death then to her heirs forever, or in the event of her being dead at the time of the death of my son, then to her heirs directly in fee. ” Held that, testator having died before the passage of the Revised Statutes abolishing the rule in Shelley’s Case, the entire fee passed to Margaret on the death of the son in her life-time.</p>

<p>1. Husband and Wipe—Contbacts Between.</p> <p>A contract between a husband and wife, who were then living in a house owned by the wife, that the wife should furnish the house, and the husband the provisions for the table, for the purpose of keeping boarders, and that they should share equally in the proceeds, is valid, and a recovery may be had for board and lodging furnished under the agreement.</p> <p>2. Evidence—Expebts.</p> <p>One who has been a housekeeper for 30 years, and who performed the necessary services in furnishing board and lodging, the value of which is in suit, is competent to testify as to the value of the board and lodging.</p>

<p>Appeal from, circuit court, Onondaga county.</p> <p>Action by Clara L. Doty against the New York State Mutual Benefit Association. Judgment was entered in favor of plaintiff upon the verdict of a jury. Defendant appeals.</p>

Two actions, respectively, brought by the Merchants’ National Bank of Binghamton, N. Y., and John Seacord, against Charles E. Pendleton and others, and a third action brought by Annie O’Hearn against Elizabeth Pearsall and others, wherein it was sought to hold defendants liable as partners in the Home Savings Bank. Defendants appeal from a judgment overruling their demurrers to the complaints.

<p>Appeal from circuit court, Oswego county.</p> <p>Action by Joshua L. Wadley against Jacob L. Poucher and Willard Johnson. There was a judgment for plaintiff. Defendants appeal.</p>

Action by Marietta L. Lane, as executrix, against the New York Life Insurance Company and another. The insurance company appeals from an order denying a motion for leave to deposit in court the fund in dispute.

Action by Erastus H. Barnes against Walter P. Denslow and Rufus T. Bush. Trial resulted in a verdict for plaintiff. From the judgment entered thereon, and the order granting an extra allowance, defendants appeal.

<p>At Chambers. On motion for reference.</p>

<p>Landlord and Tenant—Rent—Stipulation by Third Person.</p> <p>Defendant, as sheriff, seized, under attachment, stock and fixtures in a building leased to the debtor by plaintiff. The attaching creditors and the debtor agreed that the sheriff should pay the rent, and charge it as an expense in the action, and that the property might remain in the building during his discretion. Plaintiff showed these agreements to defendant’s deputy, who assented to them, and in subsequent conversations assured plaintiff he would get the money out of the property attached, and that it was ample to meet all charges against it. Defendant taxed the rent in his bill of costs. Held, that proof of these facts did not establish an obligation on the part of defendant, individually, to pay the rent.</p>

<p>Appeal from special term, Chemung county.</p> <p>Action by Mathias H. Arnot and others against Charles L. Bingham, receiver of the First National Bank of Dansville, N. Y., and others. Judgment for plaintiffs. Defendant appeals.</p>

An action by John J. Olcott and another against John Erwin and others. The action was to recover $356.29, being one quarter’s rent due the plaintiffs, November 1,1888, upon premises leased by the plaintiffs to the defendants for the term of three years and one month from April 1, 1886. In January, 1887, the defendants sublet the premises to John McKinley, who entered and continued in possession until November 12, 1888.

<p>Appeal from circuit court, New York county.</p> <p>Action by Stephen J. Weaver and another against Hugh J. Grant, sheriff, etc. From a judgment for plaintiffs, defendant appeals.</p>

<p>1. Banks—Deposits op Monet Fraudulently Obtained—Liability to Owner.</p> <p>Where money fraudulently obtained is deposited with-a bank, which, after notice from the legal owner of its claim, with instructions not to pay to any one else, pays it to a third person, who also had notice of the claim, the bank and the one to whom the money is paid will be liable therefor to the legal owner, though the notice to the bank was informal.</p> <p>2. Same—Action to Recover—Parties.</p> <p>Though the party to whom -the money is paid is primarily liable therefor, the bank is liable in case it cannot be obtained from him, and both are properly made defendants in the same action.</p> <p>8. Same—Rights of Attaching Cbeditok,</p> <p>An attachment by a creditor of the depositor would not authorize the hank to pay the money to the creditor.</p> <p>4. Same—Deposits—Ammoation of Checks.</p> <p>Where a bank keeps a general account with a depositor, placing to his credit Ms deposits, and charging against them his checks in the order in which they are drawn, the legal presumption is that the checks are paid in the order in which they are drawn, out of the earlier, instead of the later, deposits.</p>

<p>Appeal from a judgment on report of referee.</p> <p>Action by Charles B. Bassett against Jesse L. Wood and others. There was judgment for plaintiff. Defendant Wood appeals.</p>

Lawrence county. Action by Harriet H. Vilas, as administratrix of Samuel F. Vilas, deceased, against Peter Butler and others. Motion to vacate judgment was denied, and defendants appeal.

Action by Elmer J. Albert against Elnathan Sweet and James R. Young. Defendants appeal from an order denying their motion for a new trial. For former report, see 22 K. E. Rep. 762.

Action by Amos Potter against Abram P. Gates. The complaint contained two claims. The first was for goods sold and delivered. The second, on a special contract by which defendant was to draw logs to plaintiff’s mill, enough to make 100,000 feet of lumber, and to pay plaintiff $2 for sawing each 1,000 feet. And plaintiff alleged that defendant drew only enough to make about 40,000 feet, and had not paid for the sawing of these.

An action for slander by Alice Graves against Archibald W. Gilchrist. The words laid in the complaint were: “Alice Graves has kept a whore-house in Rutland during the past winter.” The answer was: (1) A general denial; (2) by way of mitigation, that defendant heard others charge the plaintiff, in substance, with the same offense; and (3) that plaintiff was a woman of bad repute. There was a verdict for plaintiff for $800. From the judgment entered thereon defendant appeals.

Action by Margaret Kain, as administrator of David Kain, to recover damages for his death, caused by the wrongful act of the defendant, Patrick Larkin. There was a verdict and judgment for defendant. Plaintiff appeals. At the time of the trial, defendant was in state’s prison, under sentence on conviction of a felony in the shooting and killing of the intestate.

<p>Appeal from circuit court, Albany county.</p> <p>Action by Bernard Kelly against the New York Central & Hudson River Railroad Company, to recover for injuries sustained by the negligence of defendant in not keeping in proper repair a bridge across its tracks at West Albany. Plaintiff was nonsuited, and exceptions ordered heard in first instance at general term.</p>

<p>Appeal from special term, Ulster county.</p> <p>Action by Catherine E. Deerman against Gardiner Smith. The complaint, verified August 27, 1889, sets forth that plaintiff was the owner of a certificate of sale issued by the state engineer entitling her to purchase certain lands from the state, for which she paid $1,000, and gave her bond for $2,000 more; that she assigned this, October 27,1884, to defendant, to secure defendant for indorsing a note of hers of $700; that she has paid the note in full, and since such payment has requested the reassignment of the certificate, which defendant refused. That, as additional security, she also gave defendant, May 13, 1887, a chattel mortgage, which she has paid, and of which she demanded a satisfaction, which defendant refused. The complaint asks as relief that defendant be adjudged to deliver up the assignment and satisfy the mortgage. The answer avers that defendant paid the last renewal of said note, for which plaintiff became indebted to him in $300, and $32 money loaned, and says that the chattel mortgage was given to secure this debt of $332; that, on receiving this chattel mortgage, defendant elected to hold this as security, and virtually canceled the assignment of the certificate; that defendant sold part of the mortgaged property, and thus paid the mortgage debt, and the residue of the property was returned to plaintiff; that when the papers were presented to him, July 18,1889, supposed to be the reassignment and the satisfaction piece, he did not know their force, and, as there was a litigation between him and plaintiff, he did not sign them; that on the 3d day of August, 1889, he tendered to plaintiff a release, attached to a copy of the certificate of sale, which contained a consent that one Brodhead deliver the original to the plaintiff; that plaintiff refused to accept it, unless the costs were paid. He denies that he has refused to cancel the agreement or satisfy the mortgage, except as above explained. A motion was made by plaintiff for judgment on the frivolousness of the answer, and judgment was granted, with $10 costs of motion, and costs of the action. Defendant appeals.</p>

Action by John Skaarup, as administrator of Lawrence Skaarup, against Charles Stover, to recover damages for the death of plaintiff’s intestate, caused by the alleged negligence of defendant. Plaintiff appeals from a judgment dismissing his complaint entered upon a nonsuit.

<p>1. Municipal Corporations—Street Improvements—Contract.</p> <p>Laws N. Y. 1888, c. 319, § 5, declares that the provisions of the Albany city charter as to ordinary repairs to granite block, or other kind of square stone, pavement, shall apply to Trinidad asphalt pavement, if selected by the property owners, to he laid on Delaware avenue. The charter (Laws 1883, c. 398, tit. 10, § 3) provided that the repairing of “the carriage way of all streets now paved, or that may be hereafter paved, withgranite blocks, or otherkind of square stone pavement, * * * shallbe charged upon said city. ” An ordinance to pave Delaware avenue with Trinidad asphalt, (the pavement selected by the property owners,) directed the hoard of contract to require the contractor to agree “to keep the said pavement in repair for seven years from and after its acceptance by the city,without expense to the city, or abutting property owners. ” Held, that a contract embodying this provision was void, as the effect of it was to throw upon the property owners the expense of keeping the pavement in repair, where such expense was only chargeable upon the city.</p> <p>■3. Same—Cebtiobari.</p> <p>Certiorari to review the action of the hoard in letting the contract, and not an application for reduction of the assessment to be levied, was the remedy of the property owners, as it could not be told that lower bids might not have been made if the specifications had not contained the objectionable provision.</p>

Action by Hannah L. Smith against John Bingham, for trespass upon lands in possession of plaintiff. Defense, general denial, and that the defendant was the owner of a portion of the premises upon which trespasses, as claimed by plaintiff, were committed. Ho undertaking was given as required by section 2952, Code Civil Proc, A judgment of the justice for defendant was reversed, and defendant appeals.

Action by Marvin Lane, as administrator of Sarah A. Lane, against the town of Hancock, to recover damages for the death of plaintiff’s intestate. Defendant appeals from an order denying its motion for a change of venue from Sullivan to Delaware county for convenience of witnesses. Seventeen witnesses living in defendant town were claimed to be material and necessary.

Action by Michael Dillon against the city of Syracuse. It is alleged in the complaint “that the defendant is indebted to the plaintiff upon a contract in the sum of $1,551, and interest thereon from the 11th day of February, 1887, for work, labor, and services, and materials furnished by this plaintiff for the defendant in the building, repairing, altering, and constructing a certain stone bridge over the Onondaga creek on West Genesee street, in the city of Syracuse.” There…

Action by Maud Webber against Dorliska B. Vincent and Wilber J. Vincent, to recover damages for slanderous words, imputing unchastity to plaintiff, uttered by the defendant Dorliska B. Vincent, who is the wife of the-other defendant. The complaint contained two counts,—one for words spoken in July, 1886, and the other in September, 1886. Judgment was entered on a verdict for plaintiff for $800, and defendants appeal.

<p>Appeal from circuit court, New York county.</p> <p>Action by Charles Minerley, Jr., against the Union Ferry Company of Brooklyn. Plaintiff appeals from a judgment dismissing his complaint on the merits.</p>

Action by Frederick H. Smith against Francis W. Savin and Elisha W. VanderhofE, and John Wheeler as assignee and receiver of O. M. Bogart & Co., and others, defendants. A reference was had, ,nd plaintiff and defendant Wheeler appeal from the judgment entered on the report of che referee.

Action by Philo S. Mills and others against J. Foster Parkhurst, as assignee for benefit of creditors of Henry W. Ferine, and said Ferine, for an accounting and a distribution of the assigned estate. Beuben 0. Smith and the First National Bank appeal from the order settling the account of the assignee and striking out their claims.

<p>Appeal from special term, New York county.</p> <p>Action by Charles A. Post against William A. Simmons, A. Foster Higgins, and Charles M. Fry. Defendants appeal from the judgment entered in favor of plaintiff on report of referee.</p>

Action by Blanche L. Andrews against William G-. Brewster and Randolph W. Townsend, as executors, etc., of Seabury Brewster, deceased. Defendants’ exceptions, taken on trial at circuit, were ordered to be heard in the first instance at the general term.

Application by Stephen Burkhalter for the payment of a claim against the estate of Lewis Depuy, deceased. An order was entered dismissing the petition, and petitioner appeals. Prior to 1883, 3 Rev. St. (6th Ed.) p. 436, § 2, provided that a judge shall not sit in any case “in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties.”

<p>Appeal from surrogate’s court.</p> <p>Application for the probate of an instrument propounded as the will of John-B. Graham, deceased. The instrument was admitted to probate, and John B. Graham, Jr., and Kate Storm appeal.</p>

The hearing was had and determination made upon objections filed by the relator to the legality and validity of the letting, award, and contract; the proceeding being in pursuance of the provisions of the Albany city charter. The return to the writ brings before the court all the proceedings preliminary to the contract, the contract itself, the relator’s objections, the evidence given, and the determination of the board.

. Action by George W. Driscoll, as receiver, against William W. Downer and others. Two orders were entered, one on May 13, 1889, and one on May 16, 1889.

An equity action by Edward Mitchell and Hamilton L. Hoppin and Samuel H. Hoppin, as trustees for Louisa H. Hoppin, against the Metropolitan Elevated Railway Company and the Manhattan Railway Company, to restrain the operation of defendants’ railroad in the street in front of plaintiff’s premises unless defendants should pay such sum as might be found to be the value of the rights and easements taken by them.

Action by Theodoras B. Woolsey and others against the New York Elevated Railway Company and the Manhattan Railway Company. From the judgment rendered in favor of the plaintiffs, defendants appeal.

<p>Evidence—Book-Entries—Authentication.</p> <p>In an action for detective services, plaintiff, in order to prove the number of days during which his detectives had performed their services, offered in evidence a hook in which the entries had been made by himself, and testified that the entries had been first made in another book, which had been lost, and that the entries made in that book were from slips and reports returned to him by the detectives; also, that the book produced by him contained an accurate copy of the entries made in the first book. The slips were not produced, having been lost; and the only evidence that the statements which they contained were true was that of plaintiff and another witness, to the effect that at different times they had observed the different detectives apparently in the discharge of their duties. Held, that the book was not admissible in evidence against defendant, nor was it made so by the fact that its contents were communicated to defendant’s attorney; it not having been shown that the extent of the services was reported to him, or that he accepted the reports for that object. Brady, J., dissenting.</p>

Action by William F. Taylor and Horace C. Gifford against Almon M. Hull. Defendant appeals from an order denying his motion to vacate an attachment against his property.

Action by Archibald Farr against Robert H. Doxtater and others to foreclose a mortgage given by Doxtater to plaintiff, and reciting that it was to-be “security for the payment of any and all notes, checks, and drafts indorsed by Farr for the benefit or accommodation of Doxtater, or of any firm in which Doxtater is interested, or in any way connected.” At the time of the execution of the mortgage, there was a note of Doxtater’s firm outstanding, on which plaintiff was…

Action by Margaret Wheeler against the Continental Insurance Company upon a general average bond. On the 28th November, 1885, the plaintiff was the owner of the schooner Bolivia, then lying at the port of Toledo, Ohio. At that date there was shipped on board of that vessel, for the purpose of transportation to Ogdensburgh, N. Y., 25,000 bushels of corn, which was insured for the sum of $11,250. Of this insurance $5,000 was taken by the defendant.

<p>1. Wills—Contract with Devisee—Promise to Distribute Property.</p> <p>On an issue whether a devise made by plaintiff’s father to his wife was in reliance on her agreement to divide the same equally among their children, the attorney who drew the will testified that, before the will was signed, testator declared to his wife he wanted to divide his property equally among his children, and had willed it all to her, and that she was to divide it between them as they might thereafter agree, and that after her assent the will was executed. The witness admitted that on a settlement of a judgment against plaintiff he had stated that the widow was the absolute owner of the property, and that plaintiff would never get anything unless she chose to give it to him. Other witn esses testified to statements of the widow that she intended the property to be divided as her husband “wanted it. ” Evidence was also given of a partial division of the property among the children. Meld, that the devise was made on testator’s request to his wife to divide the property at or before her death among their children, and on her promise to do so.</p> <p>2. Same—Evidence—Declarations.</p> <p>The declarations of the widow as to the distribution of the property were competent evidence, not only to corroborate the testimony of the attorney, but to show what the arrangement in fact was.</p> <p>3. Witness—Credibility—Explanation of Statements.</p> <p>To explain the statement by the attorney at the time of the compromise of the judgment against plaintiff, the latter offered to show by the attorney that the settlement was made on the voluntary offer of the holder of the judgment. Meld% that the testimony was improperly excluded; for, if the statement was casual, and not to induce a settlement, its bearing on the credibility of the witness would be very different.</p> <p>i. Appeal—Review—Objections not Raised Below.</p> <p>An objection to testimony on the ground that it was a privileged communication between attorney and client cannot be raised for the first time on appeal.</p>

Action by Abram M. De Witt and Abram D. Slosson against the Elmira Transfer Railway Company. Defendant demurred to the complaint as not stating facts sufficient to constitute a cause of action, and now appeals from the interlocutory judgment overruling its demurrer.

Action by Elizabeth Nary, as administratrix of John Nary, against the New York, Ontario & Western Railway Company, for negligence in causing the death of plaintiff’s intestate, John Nary, at Oswego, on the 3d October, 1887.

Action by John Gibbons against Edward P. Van Alstyne. A verdict and judgment rendered in favor of defendant in the justice’s court was reversed by the county court,and defendant appeals.

<p>Appeal from circuit court, Albany county.</p> <p>Action by Patrick Judge against the New York Central & Hudson River Railroad Company. There was judgment for plaintiff. Defendant appeals.</p>

' Action by John Arthur against the city of Cohoes to recover for personal injuries. There was a verdict for defendant, and from the judgment entered thereon plaintiff appeals.

Action by Patrick Fenton, as administrator, etc., of John Fenton, against the Second Avenue Kailroad Company, to recover for the death of his intestate, alleged to have been caused by the negligence of defendant. The jury awarded $3,200, and defendant appeals.

Action by Mark Block, an infant, against the Harlem Bridge, Morrisania & Fordham Bail way Company, to recover damages for injuries received by plaintiff under the following circumstances: On the 6th of March, 1886, between 5- and 6 o’clock in the afternoon, but while light enough remained to distinguish objects readily, the plaintiff, a bright, smart, intelligent boy, seven years old, ran from the south-west to the north-east corner of One Hundred and Thirtieth street and…

Appeal for judgment on report of referee. Action by John Avery against Manly B. Mattice. Plaintiff appeals from a judgment entered in favor of defendant upon the report of a referee.

Application by Michael McGrath for a writ of mandamus against the Green Island Water Company. The relator is a resident of Green Island. He at •first received water in his house from the company through one faucet, under •a contract with the respondent for five years, at five dollars per year. Subsequently he adapted his house for two families, and put in another faucet for the other family. Water was thereafter received through both faucets for about one year.

<p>Municipal Cobpobations—Public Improvements—Grading Streets.</p> <p>Laws N. Y. 1883, c. 113, as amended by Laws 1884, c. 281, providing fora commission to assess damages “whenever the grade of any street * * * in any incorporated village in this state shall be changed or altered” to the injury of the owners of houses already existing on adjoining lots, applies to the change of a grade which was that of the natural surface of the earth.</p>

Action by Edgar Pool, as assignee, etc., of Henry C. Nichols and Cora I. Nichols, against Rodman B. Ellison, William P. Ellison, Carl Vietor, and Thomas H. Cullen, for the value of goods seized by the sheriff, under an attachment and execution in favor of the defendants Ellison, against property of Henry C. Nichols & Co., shortly after the latter firm had made a general assignment to plaintiff. The sheriff was originally a party defendant. Verdict was rendered for plaintiff.

Action by Stacia Cullen, administratrix of James Cullen, deceased, against Frederick O. Norton, to recover for the death of her intestate by reason of the alleged negligence of defendant. There was a verdict for plaintiff. From the judgment thereon defendant appeals. For former opinions and statements, see 4 N. Y. Supp. 774; 5 N. Y. Supp. 523.

<p>1. Preliminary Injunction—Dissolution.</p> <p>In an action to enjoin a city from discharging sewage into a creek, on the ground that it will pollute the ice in plaintiff’s pond, 13 miles down the stream, a preliminary injunction will be set aside when the proof preponderates in favor of the absence of injury, and the case can be tried on its merits before another winter, and plaintiff’s ice cannot be injured in the mean time.</p> <p>2. Appeal—Review—Consideration op Evidence.</p> <p>Upon appeal from the order granting the injunction, the court cannot take judicial notice of the opinion of experts not verified by affidavit.</p> <p>3. Equity—Pleading—Irrelevant Issues.</p> <p>A motion to strike out allegations in a complaint in equity is properly denied where the irrelevancy is not clear, and the danger of false issues is only possible.</p>

Action by the Hudson River Telephone Company against the Watervliet Turnpike & Railroad Company, for an injunction to restrain the latter for operating its electric railway. Defendant appeals from an order granting an injunction pendente lite. 0

Application, on the relation of Orson T. Cook against Samuel Smith, for a writ of habeas corpus. The writ was dismissed, and relator appeals.

' On the report of the appraisers of the estate of Catharine T. Kemeys, deceased, an order of confirmation was entered, and the collateral inheritance tax assessed. Walter T. Kemeys appeals.

Action by George A. McDermott, as receiver of the national Ammonia Company, against John Harrison and others. There was a verdict for defendants. Plaintiff appeals from the judgment entered thereon.

Action by Joseph O. Brown and Charles H. Macy, as executors, etc., of George Ghesterman, for the construction of the will of their testator. There was a judgment at special term, from which plaintiffs appeal.

<p>Appeal from special term, New York county.</p> <p>Action by Frederick B. Wilson against Eastman & Mandeville Company. Defendant appeals from an order striking out its answer as sham.</p>

Action by Harshaw Scott, against the Pennsylvania Railroad Company, to recover- damages sustained by the plaintiff by reason of his being run over and injured by one of the defendant’s trains in the vicinity of the defendant’s station at Rahway, R. J. Upon the trial, the evidence given upon both sides in respect to most of the important circumstances attending the happening of the accident was in direct conflict.

Action by William H. Hussey against Weeks W. Culver and Benjamin Wright. Defendants appeal from final judgment establishing an equitable lien in favor of plaintiff upon certain moneys collected by them as attorneys of Alexander Low.

Emma Foley brought an action against Alfred G. Stone, who was arrested upon the giving of an undertaking with worthless sureties. Her attorney, W. Duryee Hughes, now appeals from an order punishing him, the plaintiff, and the sureties for contempt in procuring the acceptance of such undertaking, and imposing a fine for the amount of a judgment recovered thereon, or imprisonment. For former report, see 3 H. Y. Supp. 288.

Action by George B. Inman and Willard E. Inman against John E. Cor-win and John Wilkin. Plaintiffs appeal from a judgment entered upon an order sustaining a demurrer to their complaint.

<p>1. Municipal Corporations—Ordinances—Delegation oe Authority.</p> <p>An ordinance, for the paving of an avenue in the city of New York, which provides for the relaying of the cross-walks which, in the opinion of the commissioner of public works, should not be found to be in good repair, or not on a grade adapted to the new pavement, is not such an unlawful delegation of authority as to vitiate an assessment made under it.</p> <p>2. Same—Excessive Assessment.</p> <p>Where by an assessment the entire cost of a street pavement was imposed on the property fronting on the avenue, though a former ordinance required a railroad company to pay for 25 feet of the pavement in the middle of the avenue, a property owner who had paid the assessment in ignorance of the ordinance was entitled to recover back the excess over and above which his property was liable for.</p>

Action by Thomas Cavanagh as administrator, etc., of Jane Lingard Robinson, deceased, against the Oceanic Steam Navigation Company. Plaintiff appeals from an order requiring him to reply to certain paragraphs of the answer.

<p>Appeal from special term, New York county.</p> <p>Action by Patrick Jackman against Franklin B.Lord and the Consolidated Gas Company. Defendant Lord appeals from an order denying his motion to make the complaint more definite and certain.</p>

<p>Motion for reargument. For former reports, see 5 N. Y. Supp. 948, mem.; 7 N. Y. Supp. 596.</p>

Action, by Chauneey St. John against Howard W. Coates and Benjamin 0-Wetmore as executors, etc., of George H. Peck, deceased. Defendants appeal from an order striking out certain issues directed to be tried before a jury.

Proceedings for the settlement of the estate of Oscar Strasburger, deceased. As the result of an order of reference made therein in respect to the claim of Deutseh Bros., the following facts wrere found by the referee: “First. That Oscar Strasburger entered into a lease with Simon L. Deutseh and Alexander Deutseh, bearing date February 6, 1882, and also into another lease, bearing date December 6, 1883, which leased and demised to the said Messrs.

Action by the Sixth Avenue Bailroad Company against the Metropolitan Elevated Bailway Company and the Manhattan Bailway Company. Defendants appeal from a judgment recovered on trial at the special term.

<p>Appeal from circuit court, New York county.</p> <p>Action by Myer Elsas against the Second Avenue Railroad Company. There was a verdict and judgment for plaintiff. Defendant appeals.</p>

Action by John W. Haaren against Jeremiah Lyons and others. Defendant Lyons appeals from an interlocutory judgment overruling his demurrer to the complaint.

An application by William H. Osborn for a mandamus to compel the-board of assessors to change the name on the assessment list of the owner of a certain lot assessed for regulating Westchester avenue. The court below made an order denying the application. The relator has appealed. The material dates, as appears by the papers, are as follows: The contract for the work was dated November 26, 1884, pursuant to an ordinance previously adopted.

Action by Mary E. Goodrich against Byron D. Houghton and Claude S. Houghton. In the complaint there are three counts.

<p>1. Attorney and Client—Lien—Limitation oe Actions.</p> <p>Where an attorney employed to prosecute an action waits more than six years after the action has ended in judgment, and after his services have ceased, before suing lor his fees and disbursements, his cause of action being barred by Code Civil Proc. B. Y. § 382, his lien upon the judgment falls with it.</p> <p>2. Same—To what Lien Attaches.</p> <p>The lien of an attorney is wholly confined to the judgment, and the proceeds thereof which may come to his hands, or under his control, and does not include a mortgage given in settlement of a suit brought in aid of the judgment.</p>

<p>Appeal—Review—Weight op Evidence.</p> <p>Where the evidence is conflicting, with no very substantial preponderance in favor of either party, the verdict of the jury is conclusive.</p>

<p>Vendor and Vendee—Defective Title—Description of Premises. •</p> <p>Premises sold at foreclosure sale were described in the deed to the mortgagor, the mortgage, the decree, and notices of sale, as Ho. 347 West Sixteenth street, and as commencing 366 feet east of Eighth avenue. In the deed to the mortgagor’s grantor the premises were described as commencing 336 feet east of the avenue. Held, that the title was not a marketable one, and that the purchaser was entitled to be relieved from his purchase.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Michael Brennan against the Brighton Beach Racing Association. The complaint was dismissed, and plaintiff appeals.</p>

Action by George P. Lawrence and others against Jerome F. Manning and others.. The plaintiffs are shipping and commission merchants in this city. During the war of the Rebellion, they, as ship’s husbands and managing part owners, paid war premiums for insurance on vessels for themselves and various other parties, who are made defendants in this action, including the estate of William A. Sale, of whose will the defendant Amanda T. Sale is executrix.

T. D. Matson sued J. Blossom as maker, and L. Collamer as indorser, of a promissory note for $510, payable to J. M. Orcutt or bearer. The note was given for 34 bushels of Bohemian oats, at the price of $15 per bushel, and a bond in which the seller of the oats agreed to sell for said purchaser, within a certain time, 68 bushels of oats, at $15 per bushel, deducting therefrom a commission for making the sale.

Action by Henry M. Peyser and others against William M. Halsted and others, composing the firm of Halsted, Haines & Co., and Sarah L. Myers and others as executors, etc., of John K. Myers. There was judgment for defendants. Plaintiffs appeal.

Action by Meredith Howland, individually and as trustee of Gardiner G. Howland, for the purpose, inter alla, of obtaining a construction of the will •of his testator. The defendants appeal from that part of the judgment which ■undertook to place a construction upon the will.

<p>Appeal from circuit court, New York county.</p> <p>Action by Alfred de Cordova against Stephen C. Barnum. Judgment was entered on a verdict for plaintiff, and defendant appeals.</p>

<p>Change of Venue—Defendant’s Residence—Convenience of Witnesses.</p> <p>Where neither party to an action for divorce is a resident of the county wherein the action is brought, defendant’s motion to change the venue to the county of his residence must prevail against plaintiffs counter-motion to retain the venue for convenience of witnesses.</p>

Action by the Metropolitan national Bank against John Paretand MaryE. Palmer, Ursula Story and Alice Rowland, executrices of Rufus Story, and -others, impleaded. There was verdict for defendants, and an order denying a motion for a new trial, and plaintiff appeals.

At chambers. Certiorari by the People ex rel. Updyke and others against Edward G-ilon and others, forming the board of assessors of New York city.

Action by Andrew Langdon and others against the Yew York, Lake Erie & Western Railroad Company to recover damages for excessive freight charges. Defendant demurred on the ground that the court had no jurisdiction, and that the complaint did not state a cause of action.

Action by Mary T. Witty against Thomas O. Acton to recover possession of certain premises leased from defendant. Defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. Code B. Y. § 2253, provides that the issuing of a warrant for the removal of a tenant cancels the agreement and annuls the relation of landlord and tenant.

At chambers. Laws 1813, c. 60, § 3, provides that the wardens, vestrymen, and rector of an incorporated Episcopal Church shall form a vestry, and shall be the trustees of the church. Laws 1875, e, 79, § 4, provides that the management and disposal of affairs and property of such corporation shall be in the hands of the trustees thereof.

<p>Appeal from surrogate’s court, New York county.</p> <p>The surrogate entered an order appointing a temporary administrator of the estate of Charles A. Platb, deceased, and Jacob Bieser appeals.</p>

Action by George H. Hardy against Stephen A. Main. There was a verdict and judgment for plaintiff, and a motion made on the minutes for a new trial was denied. Defendant appeals.

Action by Montz Gluck, as administrator of Henry Gluck, against the Bidgewood Ice Company, to recover for the death of his intestate, a boy of the age of six years, who was drowned by falling through a hole in a pier on the East river, in the city of New York, leased by defendant from the city of New York. By the terms of the lease, defendant was bound to keep and maintain the pier in good and sufficient repair and condition. There was a verdict for plaintiff for $2,000.

Action by William T. Cunningham and others against Theodore von Pus-tan and others. Defendants appeal from an order denying their motion to vacate an attachment against their property.

A partition suit brought by Albert L. David against Adelaide David, Charles F. David, and Mary O’Gorman David. Defendant Charles F. David appeals from the interlocutory judgment directing a sale of the property.

Action by Aurelie Giordano against the Manhattan Railway Company and the Metropolitan Elevated Rail way Company. There was j udgment for plaintiff, and defendants appeal therefrom.

Action by William Bose Hynes and Andrew Hynes, infants, by Mary E. Hynes, guardian ad litem, and said Mary E. Hynes, individually, against the Farmers’ Loan & Trust Company. Plaintiffs appeal from an order sustaining a demurrer to the complaint.

Certiorari by Louis Lorch to review the action of Stephen B. French and others, as police commissioners of the city of New York, in dismissing the relator from the police force.

Certiorari by George Hansen against John McClave and others, as police commissioners of the city of New York, in dismissing the relator from the police force.

<p>Eminent Domain—Compensation—Interest.</p> <p>Laws N. Y. 1888, c. 191, § 3, relating to the acquisition of lands for school purposes, provides that, on the final confirmation of the report of the commissioners appointed to condemn land for school purposes, the mayor, etc., of the city of New York “shall become and be seised in fee-simple absolute of the lands included in said report, * * * and thereupon the said mayor * * * shall immediately take possession of the same, without any suit or proceedings at law for that purpose. ” Section 4 enacts that “the comptroller of the city of New York, upon the confirmation of the said report, shall pay to the parties entitled thereto the respective sum or sums so estimated and reported in their favor, respectively, with lawful interest from the date of such confirmation; and, in default thereof within four calendar months after the date of such confirmation, said persons or parties respectively, his, her, or their respective heirs, executors, administrators, successors, or assigns, may sue for and recover the same, with lawful interest, from and after demand thereof, and the costs of suit. ” Held that it was intended that the city should not be put into default and chargeable with interest until a demand was made for payment of the award, but that after demand had been made the city would be in default, and the ordinary rules as to the running of interest would apply.</p>

<p>Witness—Competency—Husband and Wife.</p> <p>In an action for crim. con., plaintiff is not prohibited from testifying in his own, behalf by Code Civil Proc. N. Y. § 831, providing that “a husband or wife is not competent to testify against the other upon the trial of an action * * * founded upon an allegation of adultery, except to prove the marriage, ” or disprove the allegation of adultery. Poliowing Smith v. O’Brien, 6 N. T. Supp. 174.</p>

Action by Konrad Schmidt and Henry Lehrberger against the Rochester Lithographing & Printing Company. Plaintiffs appeal from an order changing place of trial from New York county to Monroe county, for the convenience of witnesses.

Action by Stevens Yoisin against the Commercial Mutual Insurance Company. There was a verdict for plaintiff. Defendant’s motion for a new trial made on the minutes was denied, and defendant appealed. Plaintiff now moves to dismiss the appeal.

Action by Simon August and others against the Fourth National Bank. Defendant appeals from an order denying its motion to vacate an order for the examination of Frederick Fishel de bene esse. For report of former appeal, see 1 N. Y. Supp. 139.

On exceptions from trial term. Action by Florence Cushman, an infant, against the Family Fund Society,, to enforce payment of her share under a life insurance policy for $5,000, issued by defendant to William H. Cushman, payable to his personal representatives within 60 days after satisfactory proof of his death. Cushman after-wards assigned the policy to one Engleman to secure a loan.

Action by Patrick Donohue against John Flanagan to recover brokerage alleged to have been earned in procuring a purchaser for defendant’s land. Verdict for plaintiff, and from the judgment thereon defendant appeals.

<p>Discovery—Self-Crimination.</p> <p>Where defendant alleges in his affidavit for an order for the examination of plaintiff that the note in suit was obtained from him by a conspiracy, and that he desires to ascertain whether plaintiff was privy to the crime, the order must be vacated, as, under the New York Code, no examination'can be had where the disclosure might subject the witness to a penalty.</p>

Action by Jacob Goldstein against Meyer Stern. Orders were made granting plaintiff leave to amend the judgment, and denying defendant’s motion to vacate the amended judgment. Defendant appeals.

<p>Joint Tenancy—Conveyance to Husband and Wipe—Entireties.</p> <p>Although lands are conveyed to husband and wife in express terms as joint tenants, yet they do not take as such, hut as tenants by the entirety. Approving Cloos v. Cloos, 8 bf. Y. Supp. 660.</p>

Action by Charles H. Wilson against the Brooklyn Elevated Bailroad Company to recover for personal injuries. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

<p>1. Partnership—Debts—Individual Assets.</p> <p>One member of a partnership cannot call upon the other to contribute out of his individual property to the payment of a firm debt, when there are sufficient firm assets to pay all debts in full, in the absence of an express or implied agreement to make such contribution.</p> <p>2. Same—Implied Contract.</p> <p>Such an agreement cannot be implied from the fact that the partner from whom the contribution is sought, upon selling out his interest in the partnership business, either fraudulently or innocently omitted to call the purchaser’s attention to the debt in question.</p>

<p>1. Criminal Law—New Trial—Intruders in Jury-Room.</p> <p>A verdict in a criminal case is not vitiated by the misconduct of a newspaper re porter in secreting himself in the jury-room, and 'remaining there, taking notes, during a portion of the time that the jury were deliberating, where it appears that he had no communication whatever with the jury, who were ignorant of his presence, and all the jurors make a strong affidavit that they were not influenced by the incident in the slightest degree.</p> <p>2. Same—Objections Waived.</p> <p>On his discovery, the reporter was brought before the court, and his misconduct considered. Defendants were present with their counsel, and took part in the investigation, without objecting to the further consideration of the case by the jury, nor to the rendition of the verdict. Held, that they thereby waived the right to avail themselves of the incident as being ground for a new trial.</p>

<p>Bail—Judgment on Forfeited Recognizance—Vacation.</p> <p>A judgment on a forfeited recognizance will be vacated where, after the default, the principal appears, pleads guilty, and pays the fine inflicted.</p>

<p>An application to vacate judgment entered on forfeited recognizance.</p>

An action by the Chemical National Bank of New York against De Witt C. Wheeler, Lewis Colwell, Augustus W. Colwell, Latimer E. Jones, and A. Blanche Jones, directors of the New York Lumber Auction Company, Limited, a corporation organized under the act of the legislature of this state passed June 21,1875, (chapter 611,) to recover $2,200, the amount of a promissory note of that company transferred to and held and owned by the plaintiff, on the ground that no annual report…

Action by the Chemical National Bank of New York against Augustus W. Colwell and others, as directors of the New York Lumber Auction Company,. Limited, to recover the amount of a promissory note of the company. From a judgment entered on a verdict for defendant, and an order denying plaintiff’s motion for a new trial, plaintiff appeals.

<p>Appeal from special term.</p> <p>Action by Henry Lehman as assignee, etc., of Daniel Stumm, against Harry II. Koch as sheriff. Appeal from an order directing the substitution of the personal representative of the defendant. Code Civil Proc. N. T. § 757, provides that, in case of the death of a sole plaintiff or defendant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest.</p>

Action by Barbara M. ICerner against John Steck. Plaintiff appeals from an order denying her motion to set aside a notice of appeal served by defendant.

Action commenced by Christian Senft against the Manhattan Railway Company and the Metropolitan Elevated Railway Company to restrain them from operating an elevated railroad in front of plaintiff’s premises. After the case-was at issue, plaintiff conveyed the premises to his wife, Mary Senft, but did not notify his attorney of the fact.

<p>Appeal from special term.</p> <p>Frederick Lingsweiler, a judgment creditor, appeals from an order vacating an order for the examination of a third person alleged to have in her possession property of Charles Lingsweiler, the execution debtor.</p>

<p>Evidence—Relevancy—Meaning oe Term.</p> <p>In an action on a contract, whereby defendants employed plaintiff to canvass subscriptions for their publications, and agreed to pay a certain sum for every “order” he obtained, defendants proved the meaning of the term “order,” as used in the trade.of book canvassing, and that the meaning was the same in 1877 and 1878. A witness for plaintiff stated that from 1878 or 1879 he had been familiar with the trade meanings of the business, but did not know what they were in November, 1877, when the contract was made. He was then asked, “From what date do you know them?” and, “Do you know the customs and trade meanings in that business now?” Held, that the questions were improperly excluded, as whatever was circumstantial evidence of the meaning of the term “order” was admissible.</p>

Action by Charles J. Quimby against Edward H. Carhart, John B. Yan Wagenen, and William H. Whitford. There was a verdict for plaintiff. From the judgment entered thereon, defendants appeal.

<p>Appeal—Practice—Striking Case peom Calendar.</p> <p>Upon the failure of an appellant to procure an order filing the case or exceptions, under the rules of the general term of the supreme court, the respondent may procure such order, and it is his duty to do so if he wishes to move that the cause he struck from the calendar, and judgment rendered in his favor.</p>

Action by Lucian B. Terry and another against Henry Bange. A motion to set aside an order appointing a receiver in supplementary proceedings was denied, and defendant appeals.

Exceptions from jury term. Action by William J. Brewster against George H. Wooster upon a contract between defendant and plaintiff and Horatio Bateman and Henry S. Brown, whereby it was provided that the said Wooster, as party of the first part, should sell to the said parties of the second.part, and the said parties of the second part agreed to purchase of said Wooster, certain personal property, for whicli the said parties of the second part agreed to pay to said Wooster…

Two of four actions.brought by James A. Hamilton and Edward H. Tailer, as trustees of Thomas Suffern, deceased, against the New York Elevated Bail-road Company and the Manhattan Bail way Company, to enjoin'defendants from maintaining and operating their railway in front of their testator’s premises, and for damages.

<p>Appeal from jury term.</p> <p>Action by Charles B. Gurnb against the Twenty-Third Street Railroad Company to recover damages for personal injuries, and injury to a wagon, in a collision with one of defendant’s horse-cars. There was a verdict for plaintiff for $500. From the judgment rendered thereon defendant appeals. For opinion and statement on a former appeal to court of appeals, see 21 H. E. Bep. 993.</p>

Action by East Elver Electric Light Company against Hugh, J. Grant, as mayor of the city of New York, Jacob Hess, Theodore Moss, and Daniel L. Gibbens, constituting the board of electrical control in and for the city of New York, Thomas P. Gilroy, as commissioner of public works of the city of New York, and Michael P. Cummings, as superintendent of the bureau of incumbrances, for an injunction restraining defendants from removing the wires of plaintiff from certain poles in…

Action by Albert J. Biss against Daniel Messmore, to recover damages for breach of a warranty of an iron lintel for building purposes sold to plaintiff by defendant. Defendant by counter-claim sought to recover the purchase-price of the lintel. The cause was referred. Defendant appeals from the judgment entered in favor of plaintiff upon the report of the referee.

<p>1. Contempt—Intrusion into Jury-Room—Publication ot Proceedings.</p> <p>A newspaper reporter concealed himself in the petit jury-room, before retirement of the jury in a criminal cause, and afterwards, while they were deliberating, took short-hand notes of what he heard. On being discovered, he was made to deliver his notes to the judge, but refused to promise secrecy when admonished by the judge. He was then discharged, and afterwards published bis recollections of the jury’s deliberation. The court had remained in session during the time the jury were out, the judge being part of the time on the bench, and during the rest of the time in the judge’s chambers, in the same building. Held, that the reporter was guilty of criminal contempt committed in the immediate presence and view of the court.</p> <p>2. Same—Once in Jeopardy.</p> <p>Such action of the judge in calling the reporter before him, questioning, and then discharging him, is not such a proceeding as will entitle him to the defense of once in jeopardy, on his subsequent arrest and trial for contempt.</p> <p>3. Same—Mode oe Punishment.</p> <p>Code Civil Proc. H. Y. § 10, providing that a contempt committed in the presence of the court may be punished summarily, does not require that it he so punished. The judge may discharge the offender, and wait until proof of the contempt is presented before him in a legal and formal manner.</p>

<p>Appeal from special term, Brie county.</p> <p>Action by Bobert P. Bussell against Nelson Bandall. Plaintiff appeals from an order granting a new trial.</p>

<p>Appeal from special term, Albany county.</p> <p>Action by John Campbell and wife for personal damages sustained by the wife through the negligence of defendant. The defendant demurred for misjoinder of plaintiffs. The court sustained the demurrer, with leave to-plaintiff Sarah Campbell to serve a new or amended complaint. She refused to avail herself of this privilege, and thereupon final judgment was given on the demurrer in favor óf defendant for costs. The opinion delivered at special term is as follows:</p> <p>“Mayham, J. The plaintiffs, who are husband and wife, bring this action to recover for an alleged personal injury to the wife, occasioned by the alleged negligence of the defendant in failing to keep in repair a tenement-house owned by him, and occupied by the plaintiffs, by reason of which neglect the plaintiff Sarah Campbell fell and was injured. The complaint states no fact showing injury to the person of the plaintiff John Campbell; nor is there any allegation of consequential damage to him by reason of the injury to his wife. The defendant demurs to the complaint for misjoinder of parties, and as not stating facts sufficient to constitute a cause of action, and also that the cause of action in favor of the plaintiff Sarah is improperly joined with the cause of action in favor of John. There is no pretense in the complaint, nor was it contended on the argument, that the action was prosecuted for injury, either direct or consequential, to John. But it was contended on the part of the plaintiffs that he was a necessary party in an action prosecuted by his wife for a personal injury to her. At common law the rule was universal that in action for tort committed by or against a married woman the husband must be joined with the wife; and that rule must still be adhered to, unless, by statute, it has been abrogated or changed. The rule upon this subject is succinctly stated in Fitzgerald v. Quann, 33 Hun, 653, as follows: ‘In all actions for debts owing to and by the wife dum sola, and for torts committed by and against her before and during coverture, brought while the marriage relation continued, the husband and wife had to be joined as plaintiffs and defendants. And in all those cases, if the husband died before judgment, leaving the wife, the action survived to her; but if she died, leaving him surviving, they abated, (except that he might, as administrator, continue actions so brought by him and wife to recover such debts.)’ But this rule was changed by statute; and as an incident of the right to acquire, hold, own, and dispose of property the same as a single woman, given by the act of 1848, the right to sue and be sued in all matters relating to their separate property, and to sue for injuries to their persons or characters, the same as if they were single, was given by the amendment of section 114 of the Code of Procedure in 1849; but, except as the statute removed the disability, the common law still remained. By chapter 90 of Laws of 1860, as amended by chapter 172 of Laws of 1862, it was provided that ‘ any married woman may bring and maintain an action in her own name, for damages, against any person or body corporate for any injury to her person or character, the same as if she were sole; and the money received upon the settlement of any such action, or recovered upon a judgment, shall be her sole and separate property. ’ Under this provision it was held in Ball v. Bullard, 52 Barb. 141, that a married woman may bring an action in her own name against a wrong-doer, for a wrong committed upon her person, without joining her husband with her as a party. One of the reasons given for this change was that at common law, although the damage for personal injury to the wife was hers, and, if the husband died, it survived to her, still, if a recovery was had in the life-time of the husband, the property rights in it vested in the husband, under the law governing the marriage relation. When, therefore, this property right was by law vested solely in the wife as her sole and separate property, and the husband’s interest was cut off by positive statute, there seemed no longer to exist any necessity or propriety in joining the husband with her in an action to recover such property rights.</p> <p>“It seems, as to the right to recover for such injury to the wife, she, under the statutes of 1848 and 1862, assumed a separate and independent identity; and the common-law fiction that her identity was merged in that of her husband, as to this kind of action, and the fruits of the same, ceased to exist, and she became the sole person interested in the cause of action and the recovery. 52 Barb. 144, supra. But, by subdivision 38 of section 1 of chapter 245 of Laws of 1880, sections 3 and 7 of chapter 172 of the Laws of 1862 are repealed; and as the decision of Ball v. Bullard, supra, stands upon those sections, it ceased with that appeal to be an authority upon this subject, except as the reasoning of the court in that case may throw some light upon the meaning of the phrase ‘separate property,’ as used in the married woman’s act. This ease must therefore depend upon the construction to be given to section 450 of the Code of Civil Procedure. That section provides as follows: ‘ In an action or special proceeding, a married woman appears, prosecutes, or defends alone, or joined with other parties, as if she was single.’ It is not necessary or proper to join her husband with her as a party in any action or special proceeding affecting her separate property. Before the repeal of the acts of 1860 and 1862, and before the enactment of the above provisions of the Code of Procedure, there seemed to be a distinction between actions in which a married woman prosecuted and actions for tort in which she was defendant. In all cases she might sue alone, as well in actions for injuries to her person or character as in actions relating to her sole and separate property; but, in actions for tort brought against her, her husband was required to be joined with her. This distinction grew out of the language of section 7 of the act of 1860, as amended by chapter 172 of the Laws of 1862. That section, as amended, provided that ‘any married woman may, while married, sue and be sued in all matters having relation to her sole and separate property; * * * and any married woman may bring and maintain an action in her own name for damages against any person or body corporate, for any injury to her person or character, the same as if she were sole.’ It will be seen that as to the piroperty she might sue or be sued alone, but as to injuries she might sue; but there was no authority expressly given for suing her alone. Accordingly, when an action was brought against a married woman for slanderous words spoken by her, her husband was required to be joined with her, (Fitzgerald v. Quann, 33 Hun, 652;) and for all torts relating to her property she could sue or be sued alone, (Rowe v. Smith, 45 H. Y. 230; Baum v. Mullen, 47 ÍT. Y. 577;) and for personal wrongs against her she could sue alone, (Ball v. Bullard, supra;) yet she could not be sued for personal torts committed by her without joining with her husband, as was required at common law, (Táit v. Culbertson, 57 Barb. 9.)</p> <p>“Has the rule above stated been modified by section 450 of the Code of Civil Procedure? It would seem from the reasoning and decision of the court of appeals in Fitzgerald v. Quann, 109 H. Y. 445, 17 H. B. Bep. 354, that the amendment to section 450 o.f the Code, made in 1879, has effected a change, and that the common-law rule as to all actions except such as relate to the separate property of a married woman has been restored by the last clause of that section, as then amended. It is true that in that case the court had under consideration the method of prosecuting a married woman for a personal tort, and the result of their decision was to leave the rule as it existed before, in reference to actions against married women for personal torts; but the reason of the court in that case clearly and logically leads to the restoration of the common-law rule in actions by a married woman in that class of actions. It will be seen that under the provisions of section 450 there is no difference between actions in which a married woman prosecutes of defends. Ifthe action relates to herproperty, she prosecutes or defends alone. If itdoes not relate to her property under this decision, the common-law rule is restored, whether she brings or defends the action. In 109 H. Y. 445, 17 H. B. Bep. 354, supra, Peokhah, J., says: ‘Statutes changing the common law must be strictly construed, and that the common law must be held no further abrogated than the clear import of the language used in the statutes absolutely requires.’ And the learned judge, in further discussing the effect of the amendment of section 450 by the Laws of 1879, adds: ‘ If it be assumed that without it the first sentence of the section had made an alteration in the common law, and that under such first sentence a married woman was to be sued alone in all cases as if she was single, we think the addition of the second sentence places the law where it was before the passage of any part of the section.’ If the above construction be correct, and we must assume that it is, then as to actions not affecting the separate property of a married woman, and in which she prosecutes or defends, the common-law rule is restored, and her husband must in all such cases be joined with her.</p> <p>“It follows, therefore, that the husband in this case is properly joined with his wife in this action prosecuted by her, unless the action be one affecting the separate property of the wife. Is the claim for unliquidated damages for injury to the person ‘property,’ within the meaning of that word as used in section 450 of the Code? The word ‘ property ’ is defined in the Code in subdivision 8 of section 3343, as follows: • The word “property” includes real and personal property;’ and personal property is defined in subdivision 7 of same section as follows: * The words “personal property” include money, chattels, things in action, and evidences of debt.’ If the cause of action mentioned in the complaint can be brought within the above definition, it must be upon the ground that the damages claimed constitute ‘ things in action.’ ‘Choses in action’ are defined by Bouvier as a right to receive or recover a debt or money, or damages for breach of contract, or for a ‘ tort connected with contract, but which cannot be enforced without action.’ IBouv. Law Diet. 311. Blackstone says that ‘ choses in action arise both out of contracts and torts.’ ‘dioses,’ Bl. Comm. 519. In Rumsey• v. Lake, 55 How. Pr. 341, in discussing the question as to what constitutes a wife’s separate property, Hardin, J., says: ‘ Thus she becomes entitled to the “property” in the chose in action for such injury; and thus it is that the action concerns her separate “property,” when brought to recover for such injuries.’ It is true that this decision was made under the provisions of section 114 of the Code of Procedure; but I think the words ‘ separate property,’ as used in section 450 of the Code of Civil Procedure, must have the same signification as was given them in the old Code.</p> <p>“Without further citation of authority, I am of the opinion that the action is in theory prosecuted in relation to the separate property of the wife; and, if so, it follows that the husband is not a necessary or proper party, and that the demurrer is therefore well taken. The defendant is entitled to judgment on the demurrer, with costs, with leave to the plaintiff to amend her summons and complaint on payment of costs of this demurrer.”</p> <p>Plaintiffs appeal.</p>

<p>1. Certiorari&emdash;Where Returnable&emdash;Waiver of Objections.</p> <p>The omission to make a writ of certiorari to review an assessment returnable to a special term, as required by Laws N. Y. 1880, c. 269, § 2, is cured by a full and voluntary appearance of the respondents, at a special term not named in the writ, a stipulation to refer, and a failure to move to dismiss the complaint.</p> <p>2. Taxation&emdash;Certiorari to Review Assessment&emdash;Non-Residents.</p> <p>The right to a writ of certiorari to review an assessment against the personal property of one claiming to be a non-resident is not lost by his failure to appear before the assessors on grievance day and object, where it appears that the assessors were fully aware of his claim, and that his appearance before them would have been futile.</p> <p>8. Same&emdash;Custody of Assessment Roll.</p> <p>Nor is it material that the assessment roll had passed out of the assessor’s hands when the writ was issued.</p>

The Equitable Life Assurance Society sued one Hughes and others, to foreclose a mortgage, and recovered judgment. The clerk of Kings county refused to tax to plaintiff, in adjusting the costs, items paid by it to the Lawyers’ Title Company, for searches of title. Upon motion of plaintiff at the special term, Mr. Justice Cullen corrected the taxation of costs, and allowed plaintiff these items.

<p>Action by Augustus C. Brown, administrator of the estate of Mary B. Burnside, deceased, against the Farmers’ Loan & Trust Company to recover the value of certain bonds, which were the property of Mary B. Burnside, and were devised by her, with power of disposition, to her husband, Gen. A. E. Burnside, who was also made her executor. The said bonds were deposited by Gen. Burnside with defendant to secure the payment of a loan. This suit was brought after his death to recover the value of the bonds from defendant, on the ground that the power of disposition conferred by the will did not include the power to hypothecate the bonds as security for a loan. Plaintiff recovered judgment at special term, but the general term reversed the judgment, and granted a new trial. 4 U. Y. Supp. 422. From this decision plaintiff appealed to the court of appeals, where the judgment was affirmed. 22 2i. E. Bep. 952. Judgment was then entered for defendant, in pursuance of a stipulation to that effect, when the appeal was taken. Defendant now moves for his costs, and at the same time for an extra allowance.</p>

<p>1. Estoppel—Laches—Uncertainty as to Legal Rights.</p> <p>When defendant’s elevated railroad was built it was the general opinion that abutting owners had no remedy for injuries caused by its construction, though no condemnation proceedings were had. Afterwards an action by an abutting owner was brought, and was finally decided against defendant in the court of appeals. Held, that delay of other abutting owners to sue until the first action against defendant was finally decided was not such acquiescence in the maintenance of the road as will estop them from suing afterwards.</p> <p>0. Elevated Railroads—Injury to Abutting Property—Findings.</p> <p>In an action by an abutting owner against an elevated railroad company, the court found that one of the columns of the railway entered into plaintiff’s vault, and occupied a space about eight feet square. Another finding expressly stated that defendants had interfered with no other property rights of plaintiff than her easehients of light, air, and access; and a subsequent finding stated that said easements were destroyed to such an extent that the fee of the property “is, by reason of the premises, diminished $7,000. ” Held, that it was clear that the judge did not award any damages for the space occupied in the vault by the foot of the column.</p> <p>8. Same—Elements op Damage.</p> <p>The noise produced by the passing trains is a proper element to be considered in estimating the damages.</p>

Action by George Jacob Hochalter against the Manhattan Bailwav Company and the Metropolitan Elevated Bail way Company to restrain them from operating their railroad in front of plaintiff’s premises, and to recover damages for its maintenance. From the judgment rendered in favor of plaintiff, defendants appeal.

Action by Elias Sobel and Philip Sobel against the New York Elevated Railroad Company and the Manhattan Railway Company to restrain them from operating their railroad in front of plaintiffs’ premises, Ho. 160 Greenwich street, New York city. Erom the judgment rendered in favor of the plaintiffs, defendants appeal.

Action by George W. Wells against Rufus A. Sibley and others. The court granted a nonsuit, and from the judgment entered thereon plaintiff appeals.

<p>Parties—Non-Joinder—Nonsuit.</p> <p>In an action for services in cutting and skidding logs, defendant proved that several persons, including himself, owned and occupied the land as tenants in common, and a nonsuit was granted on the ground that the other owners should have been joined as co-defendants. Meld error, in the absence of evidence that plaintiff had any knowledge or information as to any one having interest in the land besides defendant.</p>

Action by the Buffalo Loan, Trust & Safe-Deposit Company, as guardian of Frank Roberts, upon a certificate of insurance on the life of John Roberts issued by the Knights Templar & Masonic Mutual Aid Association. There was a verdict for plaintiff. From the judgment entered thereon, defendant appeals.

In the matter of the judicial settlement of the accounts of John S. Ogilsbie and Augustus W. Spinning, surviving executors of William Hedger. Erom the decree entered therein the executors appeal.

<p>Injunction—Fibe Limits—Wooden House.</p> <p>The erection of a frame dwelling-house on a city lot will not he enjoined, at the instance of an adjoining owner, where the complaint contains no statement from which it can he inferred that there would be any special damage to plaintiff aside from the fact that a city ordinance prohibits the erection of wooden buildings.</p>

<p>1. Insurance Companies—Conditions—Waiver.</p> <p>« An adjuster and general agent of a fire insurance company, by his statements to the assured that he need not make out any proofs of loss, binds the company to a waiver of the right to insist that proofs of loss should have been furnished within a certain time, in accordance with a condition in the policy requiring them, unless waived by the company in writing.</p> <p>3. Same—Arbitration.</p> <p>Where a fire insurance policy requires the loss to be determined by three arbitrators, two of whom are to be chosen by the company and the insured, respectively, and the third to be chosen by these two, the company is responsible for the acts of the one chosen and recognized by it, where he is a man who has often before acted for the company in the same capacity, and has been zealous in its behalf.</p> <p>8. Same.</p> <p>Where the arbitrator so chosen by the company has prevented the selection of a third person by his refusal to agree to any of the persons suggested and chosen by the arbitrator selected by the insured, the company cannot, in a suit on the policy, raise the objection that the loss has not beemtietermined by three arbitrators as provided by the policy.</p>

Action by the Dundee National Bank against Anthony T. Wood and Balph T. Wood. Eliza E. Wood, the assignee of Anthony T. Wood, who was surety for the other defendant, and out of whose property plaintiff collected its debt, appeals from an order vacating executions issued in her favor. For former report, see 6 IT. Y. Supp. 766.

A decree was entered revoking probate of the will of Richmond Simmons,, deceased, and proponent appeals. For former report, see 8 IT. Y. Supp. 947.

<p>Appeal from circuit court, Cattaraugus county.</p> <p>Action by Exchange National Bank of Olean against Charles A. Marshall and George D. Briggs. Defendant Marshall appeals from an order denying his motion for a new trial.</p>

Action by Emma E. Cramer, Grace E. Cramer, and Myrtie Cramer, infants, by their guardian ad litem, Emma E. Cramer, against the Masonic Life Association of Western New York, to recover on a certificate of insurance issued by defendant on the life of Leonard L. Cramer. The trial j ustice directed a verdict for defendant, exceptions to be heard in the first instance at general term.

<p>Appeal from special term, New York county.</p> <p>Action by William I\ Lennon against Mary A. Stiles. Plaintiff appeals from order canceling notice of pendency of action.</p>

Action by Joseph Simons against Frank M. Simons and Samuel Goldbach. Sigmund Ashner, an attaching creditor of the defendants, appeals from an order denying his motion to vacate the judgment, and execution entered therein.

Action by Charles S. McCulloh, as receiver of the Hon-Magnetic Watch Company of America, against Alfred Aeby, Leo Aeby, and Aeby & Co. Aeby & Co. appeal from part of an order refusing to vacate, as against them, a warrant of attachment obtained by plaintiff.

Blake, as his attorney, between September, 1886, and December 9, 1886. The following is the opinion of referee: “John H. Blake, the claimant, is a barrister and attorney residing and practicing his profession at Toronto, Canada. He was acquainted with the decedent for many years prior to the death of the latter, and had attended to business for him as counsel.

<p>Appeal from special term.</p> <p>Action by Cornelius B. Mitchell, John J. Morris, and John J. Morris, Jr., ■against Alfred Oliver. Defendant appeals from an order of reference.</p>

Action by Elvira J. Babcock against the mayor, aldermen, and commonalty of the city of New York, for personal injuries. From the judgment entered on the dismissal of her complaint, plaintiff appeals.

An application by Wright E. Post and others in the form of a petition to compel the respondents, William M. Evarts and others, a firm of attorneys, to pay over moneys that came into their hands in their professional capacity. From the order dismissing their petition the petitioners appeal.

<p>Writ—Service of Process—Evidence.</p> <p>Upon a motion to vacate a judgment as rendered without service of process, the-evidence relied on hy defendant to meet the positive testimony that he was served with the papers at a certain hotel in New York city on the morning of February 4, 1886, consisted principally of his own testimony that he had left the hotel on the previous evening, and arrived at Baltimore the following morning, and the testimony of his wife, who corroborated him as to the time he left the hotel, and testified that she followed him on the morning of the 4th, but it appeared that when her trunk was unpacked the summons and complaint were among the papers then taken out, and she in no way attempted to explain their presence there. The person who-served the papers testified that, after defendant had been served, he went back, apparently, to his room, and shortly afterwards left the hotel. Held, that the motion was properly denied.</p>

Action by Tradesmen’s national Bank against William II. Ertell and another. Defendant Ertell appeals from judgment in favor of plaintiff on a verdict directed by the court.

Action by William M. Walton against the Grand Belt Copper Company. The Farmers’ Loan & Trust Company appeals from an order entered therein restraining it from assailing, in a suit brought by it in the state of Texas, the appointment or powers of William Belden, as receiver, appointed in this action, of the Grand Belt Copper Company.

Action by Herbert B. Ward against the New York Central & Hudson Eiver Bailroad Company. Defendant appeals from an order denying its motion for a new trial on the minutes, after a verdict in favor of plaintiff.

<p>Appeal from special term.</p> <p>Action by Olive Knight to foreclose a mortgage executed by Lucius P. Warren. There was judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Appeal by Stephen Colletti from a judgment of conviction of the crime of carrying concealed weapons.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Delecta H. Woodruff and Alvira N. Woodruff against Sophronia. M. Paddock. There was judgment for defendant, and plaintiffs appeal.</p>

On motion to dissolve injunction. John A. Macdonald, Albert W. Ham, and Arthur M. Wight were engaged in business as partners under the firm name of the “Trojan Button-Fastener Company.” Notice of dissolution was given, and, before the partnership business was closed up, Ham and Wight, in conjunction with one Patterson and others, united in forming a corporation, styled “Trojan Button-Fastener Co., Incorporated,” for continuing the business, and said Ham and Wight transferred…

Action by George E. Armstrong for an injunction against Hugh J. Grant, mayor of the city of New York, Jacob Hess, and Theodore Moss, constituting the board of electrical control in and for the city and county of New York. Plaintiff appeals from an order denying a motion to continue a preliminary injunction.

Action by John H. V. Graham and others against I. Osgood Carleton and another. Plaintiffs’ motion for a suppression of the deposition of a witness taken under a commission was denied, but with leave to plaintiffs to further cross-examine the witness. Defendants appeal.

Action by Pliny T. Sexton and others against Charles W. Bennett and others. Plaintiffs appeal from an order denying their motion to strike out portions of defendant’s answer, and to make the same definite and certain.

<p>Conversion— Sufficiency oe Findings.</p> <p>In an action for conversion, a judgment for the plaintiffs cannot be sustained in the absence of any findings of title to the property or right of possession in plaintiffs, or of any wrongful taking or withholding of the same by defendant.</p>

Application by Alexander de Botari and Olga de Botari to vacate and set aside a decree rejecting a paper propounded for probate as the last will and testament of Frederick Gr. Dale, deceased. The application was denied, and petitioners appeal.

On exceptions from trial term. Action by John A. Bell against Jacob A. Gittere. Defendant moves to vacate and set aside a judgment, and for a new trial, on a case and exceptions ordered to be heard at the general term in the first instance.

<p>Appeal from trial term.</p> <p>Action by Alice L. Oishei against Frank T. Gilbert, as sheriff of Erie county. From a judgment in favor of defendant, plaintiff appeals.</p>

<p>Practice in Civil Cases—Stay Pending Another Suit.</p> <p>A motion at trial term to stay trial of the cause until the trial of one subsequently brought, and, on its denial, a motion to stay the trial until the determination of an appeal from the order denied, are addressed to the sound discretion of the court, and, in the absence of an abuse of such discretion, its ruling will not be disturbed by the general term.</p>

Action by Balthaser Eummel against the New York, Lackawanna & Western Bail way Company. There was a verdict for plaintiff, and from the judgment entered thereon in his favor defendant appeals.

Ejectment by Peter Gasz against Michael Strick, in which plaintiff recovered judgment. The cause was tried before the Honorable Edward W. Hatch, Judge, without a jury. His decision, after setting forth his findings of fact and law, contained the direction “ that judgment should be entered accordingly, but without costs to either party.” Judgment thereupon, without costs, was entered September 20, 1888.

Action by Johann Beichel against the New York Central & Hudson Biver Bailroad Company for personal injuries. Plaintiff moves for a retaxation of costs. Por defendant’s motion to retax costs, see post, 415.

<p>Action by Johann Eeichel against the New York Central & Hudson Eiver Eailroad Company for personal injuries. Defendant moves for a retaxation of costs.</p>

Action by Elisha T. Kneeland and others against William T. Coatsworth,. for material furnished and work done by plaintiffs on an elevator, under contract with defendant. Defendant claims that he was acting only as agent of his mother, Mrs. Electa Coatsworth, who owned the elevator.

Action by Sophia Oldenburg, and others, administrators, etc., of Charles Oldenburg, deceased, against the New York Central & Hudson Biver Bail-road Company, for the alleged negligent killing of her intestate while attempting to cross defendant’s railroad tracks on a public street in the city of Buffalo.

Exceptions from jury term. Action by Valentine Hammann against Bichard Jordan, to recover $741.16, the contract price for. the half of a party-wall situated on the lands of the parties.

<p>Appeal—From Decision of Referee—Review of Facts.</p> <p>On an appeal to the general term from the judgment entered on the report of a referee, in order to present the questions that the findings of fact are against the weight of the evidence, there must be a certificate of the referee that all of the evidence is in the case, or it will be assumed that there was sufficient evidence to support the findings.</p>

Action by Henry Bohlen against the Metropolitan Elevated Bailway Company and the Manhattan Bailway Company. The special term, after judgment, made an order amending a finding of the judge, who tried the case without a jury, and defendants appeal.

Action by James H. Goodsell against the Western Union Telegraph Company. There was judgment for plaintiff, and both plaintiff and defendant appeal. Argued before Sedgwick, P. J., and Freedman and Ingraham, JJ.

Action by William F. Campbell, an infant, by guardian ad litem, against one Gallagher and others, for assault and battery and false imprisonment. At the trial an order was made dismissing the complaint, and awarding costs against plaintiff. Pending an appeal from this order, plaintiff died; and Sarah Ann Campbell, who was appointed and qualified as his administratrix, moves to revive the action in her name.

Action by Horace Farrington and William H. Brigham, as administrator of the estate of Luther Brigham, deceased, against the American Loan & Trust Company of New York, James L. Williams, receiver of the American Electric Manufacturing Company, and the unknown persons, owners and holders of the debenture bonds mentioned in the complaint.

Action by the Edison United Manufacturing Company against Rowland Y. Hazard and others. Defendant Hazard appeals from an order denying a motion to vacate an order for his examination as a party before trial.

Action by Alexander S. Bacon against the Fourth National Bank of the City of New York, to recover the amount of deposit held by defendant on account of plaintiff. Defendant acknowledged the amount of the deposit, but claimed that it was entitled to be reimbursed for money paid by it on plaintiff’s account.

Action by Stephen B. Frazier to foreclose a mechanic’s lien against property of Henry J. McGuekin for material furnished by plaintiff to one Kirchner. The evidence shows a contract in writing by and between McGuekin, as owner, and one Douglas, as contractor, and that Douglas sublet the contract to Kirchner. There was judgment for plaintiff, and defendant Mc-Guckin appeals.

Action by Virginia J. Quinn against Herman T. Winter for damages for injuries to certain land of which plaintiff was owner. Plaintiff recovered nominal damages, and judgment was entered therefor, and for costs. The judge, at special term of the city court of New York, on appeal from this taxation of costs in plaintiff’s favor, set the judgment aside, and awarded costs to defendant. Judgment was thereupon entered for defendant for costs on April 4,1889.

James M. Frost recovered judgment against Daniel D. Craig. This is an application, in supplementary proceedings, to compel defendant to deliver over an endowment policy payable to himself. Defendant claims that he has assigned the policy to the estate of one Baird, of which he was executor, and to which he was indebted, and that he is not able to make such delivery.

Action by Walter A. and Mary Blitz, his wife, against Henry Toovey, for money alleged to be due plaintiffs as salary for performing certain juggling feats in defendant’s museum; the husband doing what is known in the business as the “fire act, ” in which he pretended to eat fire, while the wife did the “glass act,” which consisted of walking with naked feet on broken glass.

Motion to enforce payment by the executors of the will of Benjamin A. Kavanagh, deceased, of the share to which petitioner, as one of the next of kin of deceased, was entitled under a decree of distribution. For former proceedings respecting this estate, see 5 FT. Y. Supp. 676, 6 FT. Y. Supp. 669.

John Hadden, at the time of his death, owned 123 bonds and shares of stock in various corporations. . Their market value ranged between $107.50 and $114 per share or bond; the par value being $100.

Petition for the revocation of the probate of the will of Zalmon Bonnett, deceased. Zalmon Bonnett died leaving a will, which was duly admitted to probate on June 20, 1887, and William H. Allen qualified as his executor.

On settlement of executors’ accounts. John Cocks died testate in 1868, leaving surviving him his widow, Adelia Cocks, and five children, Mary, Phebe, Anna, David, and Harrisoi); all of whom, together with the husbands of his married daughters, he made his executors and executrices. Mary was the wife of George J. Barlow, and Phebe was the wife of Daniel E. Haviland.

<p>Wills—Construction—Nature op Estate.</p> <p>A testator bequeathed to his wife all his personal property, “for her own use and. benefit during her natural life, ” and directed that his executors should immediately after her death “proceed to sell, collect, and settle up the personal property that may be left by her, ” and divide the same among his children. Held, that the words “left by her” showed that the intention of the testator was to give his widow something more than a mere life-estate, limited to the benefit of the income, and subject to the payment of the taxes and other usual burdens of a life-tenant, though she was limited to her own personal uses and benefits, and had not the absolute ownership or power of disposition. ■</p>

Action by Ashton B. Talbot against Doran & Wright Company, Limited. Defendant appeals from an order denying its motion to vacate an order for an examination of its officers before trial, and for the production of its books and papers.

Action by James C. Aiken and others against Bobert E. Westcott, as president of Westcott’s Express Company, for the loss of a trunk. One Hudson, a salesman for plaintiffs, delivered the checks for two trunks to defendant’s agent, but defendant delivered only one of the trunks. From a judgment dismissing the complaint, plaintiff appeals.

<p>Appeal—Review op Facts.</p> <p>The general term of the New York city court affirmed a judgment of the trial term in an opinion which stated that “we have carefully examined the appeal book, and find that the questions of fact were properly submitted to the jury. Their finding is conclusive. We have failed to discover that any error of law was committed at the trial. ” Held, that such statement would not be construed, on appeal to the common pleas, to mean that the justices of the city court failed to review the facts, as was their duty.</p>

<p>Appeal from city court, general term.</p> <p>Action by Simon Deimel and another against David Scheveland. The court refused the application by a judgment creditor to vacate an attachment, and the creditor appeals.</p>

Action by Edward H. House to restrain the performance of a play known as “The Prince and the Pauper,” being a dramatization by the defendant Abby Sage Richardson of the book or novel of that name, written by the defendant Samuel L. Clemens, and in course of production on the stage by defendant Daniel Frohman.

<p>Action by Gilbert B. Hawes against the Gas Consumers’ Benefit Company of the United States.</p>

Action by Edward A. Merritt against William Judd in a justice court of St. Lawrence county. Plaintiff obtained a judgment, of which a transcript was filed and docketed in the St. Lawrence county clerk’s office. Afterwards a transcript thereof was filed, and docketed in the clerk’s office of the city and county of New York, and an execution was issued thereon, out of the court of common pleas, and was returned unsatisfied.

<p>Motion for a reargument. For former report see 8 N. Y. Supp. 530.</p>

<p>Appeal from trial term.</p>

<p>Chattel Mortgage—Possession—Accord and Satisfaction.</p> <p>To secure payment of his rent defendant executed to plaintiff a mortgage upon furniture contained on the premises. The mortgaged chattels having been abandoned by defendant, plaintiff assumed possession thereof. Held, that this did not operate as a satisfaction of the mortgage debt so as to preclude plaintiff from maintaining an action to recover thereon.</p>

<p>Submission of controversy upon an agreed statement of facts.</p>

<p>Appeal from trial term.</p> <p>Action by Karl Billing against William Braemel, to recover on a certificate of fire insurance. Plaintiff recovered a judgment, from which defendant appeals.</p>

Motion by the creditors of George Cohen, an insolvent, to dismiss for want of jurisdiction the insolvent’s application for a discharge from his debts.

Action by Alice Holland against the mayor, aldermen, and commonalty of the city of New York, for personal inj uries alleged to have been sustained through the negligence of its fellow-servants. From a judgment dismissing her complaint, plaintiff appeals.

<p>Counter-Claim—Evidence—Judgment.</p> <p>Plaintiffs received goods on commission from defendant, and made advances thereon, for which the latter gave receipts stating that the goods were to be sold without limit as to time and price. In an action to recover the difference between what the goods realized and the advances, defendant claimed that plaintiffs guarantied a stipulated price, and counter-claimed therefor. The court ignored the counter-claim, but found for defendant without costs. Held, error; for if defendant’s testimony was to be believed at all, he was entitled to both his counter-claim and costs.</p>

This action was brought upon a policy of fire insurance, in which, among •other things, it was provided that the same should cover household furniture and other articles of personal property belonging to plaintiff “while contained in the frame dwelling situate, detached, at Bay Side, Long Island. ” The policy was originally issued to plaintiff through L. L. Whitney, who was a general agent of the defendant for the city of Brooklyn and its vicinity.

<p>Contract—Arbitration—Defense.</p> <p>A provision in a building contract, that differences between the parties respecting the value of extra work shall be submitted to arbitrators selected as prescribed, is no bar to an action to recover for such work, in the absence of evidence that defendant took steps for the selection of arbitrators.</p>

Action for personal injuries by Thomas M. James against James Ford. There was a verdict for plaintiff for $500. The judgment entered thereon was affirmed by the general term of the city court, and defendant again appeals.

Action by Henry Jordan against the New York & Harlem Bailroad Company to recover damages for injuries to his foot sustained by falling off the front platform of a liorse-car of defendant, through the negligence of the driver in starting the car before he was upon the ground. There was a verdict for plaintiff for $11,000. From the judgment entered thereon defendant appeals.

<p>Contracts—Labor on Sunday.</p> <p>A contract to give instructions in the art of photography on Sunday is illegal and void, since the work contracted for is in violation of Pen. Code N. "5". § 263, as-amended by Laws N. "2". 1883, c. 358, which prohibits “all labor on Sunday * * * excepting the works of necessity or charity; ” and there can b e no recovery for services rendered under it.</p>

<p>Landlord and Tenant—Boldins Over—Province oe Jury.</p> <p>In an action for rent for the year commencing May 1, 1889, on the ground that there was a holding over after that date, it was shown by defendant’s testimony that all machinery had been taken from the premises before that date, and that that and the preceding days were legal holidays, and that on the Sd of May, by reason of a civic procession, defendant was unable to cross the street with the trucks, but that at that time there only remained some broken boards upon the premises. Held, that whether there was a holding over was a question for the jury, and it was error to enter judgment for plain tiff.</p>

<p>Motion by respondent for reargument or leave to appeal to the court of appeals. For former report, see 8 N. Y. Supp. 473.</p>

<p>Appeal from fifth district court.</p> <p>Action by Isaac Berg against Joseph W. Carroll and another. There was judgment for plaintiff, and defendants appeal therefrom.</p>

<p>Factors and Brokers—Commissions—Payment to Third Person—Deceit.</p> <p>Where a vendee fraudulently conceals the fact that she purchased through a. broker employed by the vendor, and represents that a third person was the procuring cause of the sale, whereby the vendor is induced to pay the commissions to such third person, the broker cannot sue the purchaser for lost commissions, as the-vendor’s liability to him is not affected by such payment to the third person.</p>

<p>Appeal from third district court.</p> <p>Action by Charles Harft against Walter Tonnelly and Irving B. Welcome. There was judgment for defendants.' Plaintiff appeals.</p>

Action by Paula Arnson against Wolf Gekowsky and Max Abrahamson and Nathan Storm. The two last-named defendants appeal from the judgment entered in favor of plaintiff.

<p>1. Corporations—Powers op Oppioers—By-Laws.</p> <p>Where a corporation adopts a by-law providing that all contracts by it involving a liability for §500 or more must be in writing, executed by both the president and treasurer, and attested by the seal of the company, it cannot be held liable on a lease to it reserving a rent exceeding §500, and executed by the president alone, without the seal of the company; and this whether the lessor had notice of the bylaw or not. Following BatKburny. Snow, 3 N. Y. Supp. 935.</p> <p>3. Same—Ratification op Contract.</p> <p>In such a case, no ratification can be based on the treasurer’s knowledge of the facts where his testimony that he refused to sign the lease is wholly uncontradicted.</p>

An action for slander by Addison Curtis Bond against Charles Brewster. The alleged slanderous words set forth in the complaint are that defendant said of plaintiff: “We have not paid him any commissions. We have lent him money which he has not repaid.

Action by Warren M. Healey, William M. Williams, and John H. Zabriskie, comprising the firm of Healey & Co., against Kate L. Terry, to recover for repairs to the latter’s carriage. Defendant set up that plaintiffs performed the work so unskillf ully as to cause her damage in the sum of $150 which she counter-claimed. There was a verdict for defendant for $50.

<p>Evidence—Declarations.</p> <p>On an issue whether a certain horse belonged to plaintiff or her husband, it is error to allow plaintiff’s attorney to testify that he lent her money “upon her statement that she needed it for the payment for a horse, ” as this is permitting plaintiff to prove her own declarations in her own favor.</p>

An equity action by James Mooney against the New York Elevated Bail-road Company and the Manhattan Bail way Company, to recover damages sustained by reason of their railroad structure in front of plaintiff’s premises, Ho. 399 Greenwich street, in the city of New York, and for an injunction against the maintenance and operation of the road. The injunction was granted unless defendants paid or tendered $7,000 to plaintiff, and $6,054.22 damages were also awarded to plaintiff.

Action by Helen A. Rice, as administratrix of Clement T. Rice, against Alice Maddock. There was judgment for defendant, from which plaintiff appeals. For former reports, see 5 ST. Y. Supp. 958; 7 N. Y. Supp. 632.

Appeals from third district court. Two actions, brought by John W. Gibson, in which Augustus F. Ferris and another, and Sylvanus Ferris and another were the respective defendants. There was judgment for plaintiffs in both actions, and defendants .appeal therefrom.

Action by Mary Phillips against James B. McüSTab. The complaint alleged in substance that plaintiff in June, 1883, purchased from the defendant a suite of furniture, which was to be manufactured for her by him in the best manner and of the best material, and for which she was to pay $280; that at the time of making said purchase she signed a contract according to which she leased said furniture from one Scofield, paying therefor said sum of $280 in monthly installments; that…

Action by Sophia L. Mattern against Russell Sage for an accounting of pur■chases and sales of stock made by the latter on plaintiff’s account, and to recover damages for the sale of a bond, and for an unauthorized purchase of ■stock, and an alleged neglect to sell stock. Defendant counter-claimed for a balance due him, as shown by his account with plaintiff. Plaintiff and defendant were the only witnesses, and their evidence was contradictory.

Supplementary proceedings instituted by James M. Frost against Daniel D. Craig. On the day after the order for the examination of the debtor was made, a warrant for his arrest was issued, upon the ground there was danger that he would leave the state. The warrant was executed, and bond given by the debtor to appear and abide by the direction of the court or judge.

Annie A. Devlin against Ann Farmer, as administratrix of the estate of Henry Fitzsimmons, impleaded with the Greenwich Savings Bank. The referee found for the respondent Ann Farmer. Plaintiff appeals.

<p>1. Landlord and Tenant—Duration of Lease.</p> <p>An agreement to occupy a part of a house f or “ a long time—for five years or eight years ”—falls within 3 Rev. St. N. Y. (7th Ed.) p. 2200,11, providing that agreements-for occupation of tenements in New York city, which shall not particularly specify the duration of such occupation, shall be deemed valid until the 1st day of May next after the possession under such agreement shall commence; and the fact that the rent was fixed at so much per month, and payable monthly, is immaterial.</p> <p>2. Same—Acceptance of Surrender.</p> <p>A tenant, during his term, vacated the premises, and offered the keys to the landlord, who refused to accept them. The next day the keys were left at the house of the landlord, who thereupon re-entered upon the premises, and endeavored to lease, to others. Held, that a surrender and acceptance of the lease were not shown.</p>

An action by Louis Levy against Theresa Ooogan, to recover broker’s commissions on a sale of real estate. There was a verdict for plaintiff. The judgment rendered thereon was affirmed at the general term of the city court, and defendant again appeals.

Action by John B. Boss against John Simon, Ignatz Schmitt, Barbara Schmitt, and others, to enforce a mechanic’s lien. Defendant Simon demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action against him. The demurrer was sustained both at special and general terms of the city court, and plaintiff again appeals.

Action by Henry Close and Christian Beinstein against Matilda Clark and another for the foreclosure of a mechanic’s lien. ¡From a judgment foreclosing the lien defendants appeal.

<p>Practice in Civil Cases—Changing Date of Note of Issue.</p> <p>Where a reply is served by leave of court, after the cause has been noticed for trial, it is within the discretion of the court to change the date of filing the note of issue, instead of requiring a new note, and the payment of an additional fee, and this power may be exercised after the reply has been served nunc pro tune.</p>

Action by George Oarrigan against Henry L. Washburn and others. Washburn was arrested on execution against his person, but on motion the writ was set aside. This order was reversed on appeal, and plaintiff now applies for an order commanding defendant’s rearrest under the old process. For former reports, see 2 H. Y. Supp. 616; 7 H. Y. Supp. 262.

Action for rent by Frank H. McCabe against Henry F. Evers. The evidence shows that the defendant removed from the demised premises just prior to May 1, 1889. Held: and directed a verdict in favor of the plaintiff, notwithstanding the fact that the defendant asked to go to the jury-on the questions (1) whether the defendant was in possession of the property on May 1st; (2) whether there was a tortious holding over sufficient to imply a new tenancy. Defendant appeals.

<p>1. Evidence—Documents—Authentication.</p> <p>In an action for breach of contract, plaintiff offered in evidence a paper which he alleged was signed by defendant and contained the terms of their agreement, and testified that defendant gave him the paper. Meld, that this was sufficient to authorize its admission.</p> <p>2. Same—Review on Appeal—Objections not Raised Below.</p> <p>Plaintiff offered a letter to him from defendant, and testified it was in the same condition as when he received it. Meld,, that an objection, taken for the first time on appeal, that the paper was inadmissible because of a material alteration of which no explanation was given, was without merit.</p> <p>•3. New Trial—Newly-Discovered Evidence—Surprise.</p> <p>A new trial on the ground of newly-discovered evidence is properly refused when the only reason given for not having the proposed witness present at the trial was that the moving party did not and could not anticipate that his adversary would testify as he did.</p>

<p>Appeal from trial term.</p> <p>Action by John McMahon against William Kelly. There was a verdict and judgment for plaintiff, and defendant appeals.</p>

Action by Moritz Pach against Frank T. Gilbert, as sheriff of Erie county, for failure to levy an execution. When the cause was reached for trial, plaintiff moved for judgment on the pleadings because of the alleged insufficiency of the answer. After oral argument and the submission of briefs, the court decided the motion adversely to plaintiff. The cause was tried at a subsequent term and a verdict was directed in plaintiff’s favor.

<p>Appeal from trial term.</p> <p>Action by John Moroney against the Brooklyn City Bailroad Company. There was a judgment for plaintiff, and defendant appeals.</p>

Action by Moritz Pach against Frank T. Gilbert, as sheriff of Erie county,, for a failure to return an execution upon a judgment recovered by plaintiff against one Lizzie Orr. The action is brought by the plaintiff against the defendant in his official capacity, as sheriff of Erie county, for a failure to return within 60 days an execution issued to him out of this court upon a judgment recovered by the plaintiff against one Lizzie Orr.

<p>Motion to confirm report of referee on voluntary accounting of the surviving executor of the estate of Daniel Quinn, deceased.</p>

<p>1. Executors and Administrators—Accounting—Eailgbe to Pat Mortgage.</p> <p>Executors sold testator’s iarm, providing by the terms of sale that the purchaser .should, as part of the purchase price, pay a mortgage thereon held by one of the executors. The entire purchase money was, however, paid to the executors, and retained by them, uninvested, while the mortgage was left unpaid and drawing interest. Meld, on a settlement of the estate, that the mortgage would be treated as paid at the time of the sale.</p> <p>3. Same—Retainer oe TJnagthenticated Claim.</p> <p>An executor held testator’s note, taken in payment of overdue interest on a mortgage. The executor, without authority of the surrogate, as required by 4 Rev. St. ET. Y. (8thEd.) p. 3561, § 33, paid this out of the funds of th'e estate. It afterwards appeared that the funds would be insufficient to pay all the debts. Meld, that he could not then claim that the note was merely evidence of the debt, and that the interest was still a lien on the mortgaged property.</p> <p>3. Same—Interest.</p> <p>An executor deposited the money belonging to the estate in a bank, of which he was the president and principal stockholder. It remained there 18 months before the settlement of his accounts. Meld, that he would be charged with the rate of interest allowed on time deposits.</p>

<p>1. Executors and Administrators—Liability of Realty.</p> <p>Where a testator gives to his wife his personal property absolutely, and his real estate for life, remainder to his descendants, his executor, who, as appears by his accounts, received sufficient personalty to pay all claims against the estate, including his own, cannot maintain a claim therefor against the realty.</p> <p>2. Same—Limitation of Actions.</p> <p>Under Code Civil Proc. N. Y. § 2740, providing that the statute shall commence to run against a debt due an executor from decedent from the first judicial settlement of the executor’s account; and section 2514, subd. 8, defining a “judicial settlement” of an account as a decree of the surrogate’s court, whereby the account is made conclusive on the parties to the special proceeding,—the statute will run against the executor’s claim from the time of a judicial settlement of his account in proceedings to which testator’s wife alone was cited, though the remainder-men were not bound thereby.</p>

Action by Joseph Atwater against the trustees of the village of Canandaigua. The court directed a verdict for defendants, exceptions to be heard in the first instance at general term.

At chambers. Application by William H. Osborne for mandamus to Edward Gilon and others, assessors of the city of New York, to make certain assessments on property in the names of former owners.

Action by Shepherd F. Knapp, receiver, for whom plaintiff Landon was afterwards substituted, against James Van Etten and others, on an undertaking given by defendants for costs on appeal from a judgment of foreclosure, and for use and occupation of the mortgaged premises pending the appeal. The undertaking also contained the provisions required in appeals-from judgments for the payment of money, but defendants claimed that such provisions had been inserted by mistake.

<p>1. Factors and Brokers—Actions for Commissions—License Fees.</p> <p>In an action in New "York for broker’s commissions for the sale in Pennsylvania of land in that state, the answer set out certain statutes of Pennsylvania requiring real-estate brokers to pay a yearly license fee, and imposing a penalty “to be recovered in an action at law, as debts are, ” for “ each offense. ” The answer alleged that plaintiff had no license, and that the highest court of Pennsylvania, “in a proper case, ” had decided, and still holds, that a real-estate broker doing business without a license cannot recover for his services. Held, that the answer was insufficient, as it did not show that the facts in the case before the supreme court of Pennsylvania were similar to those in this case, or that the contract on which the complaint was founded was a criminal offense, or null and void, or prohibited by the statues of Pennsylvania. Corlett, J., dissenting.</p> <p>2. Same—Pleading—Foreign Statutes.</p> <p>The answer, after setting out the statutes of Pennsylvania, and averring that they were the whole of the laws and statutes of that state on that subject, alleged that by such statutes plaintiff was absolutely prohibited from exercising his trade without a license, and from recovering in that action. Held, that these averments were merely inferences and deductions from the statutes, and not allegations of fact.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Hugh McOlurg against John McKercher. There was judgment for plaintiff. Defendant appeals.</p>

<p>Mortgages—Liens—Priority.</p> <p>As security for plaintiff's indorsement of notes, the maker thereof gave him a mortgage on land, but, through an error in the description, it did not include the land intended to be conveyed. The mortgage was not recorded, but thereafter another mortgage, correctly describing the property, was given, and duly recorded. Prior to the execution of the second mortgage a judgment was docketed against the mortgagor. Plaintiff had no knowledge of this until after the recording of his mortgage and the payment by him of the notes. After the recording of the second mortgage the judgment was assigned for value to parties who had no actual knowledge of the mortgage. Held, that the lien of the mortgage was superior to that of the judgment against the assignees as well as the judgment creditor.</p>

Action by Louis P. Chard and another, administrators with the will annexed of Rufus C. Palmer, deceased, against Cornelia A. Hamilton, as administratrix with the will annexed of Elisha W. Ensign, deceased, and others. Plaintiffs appeal from so much of the judgment as dismissed the complaint as to Cornelia A. Hamilton. Code Civil Proc. § 758, provides that the estate of a person jointly liable upon a contract with others shall not be discharged by his death.

Partition suit by Emma A. Marson, individually, and as executrix of William Hovey, deceased, against Charles A. Purdy and others. Plaintiff appeals from a judgment dismissing the complaint.

Action for a divorce, brought by Augusta Carpenter against Frederick W. Carpenter. Defendant moves for a new trial on exceptions to be heard in the first instance at general term, after trial at circuit of issues framed for a jury.

Action by Louis Sneider against Henry Treichler and another. A verdict was directed for defendants. From the judgment entered thereon plaintiff appeals. Argued before Dwight, P. J., and Macomber, J.

Action to foreclose a mortgage brought by Martha S. Mead against John Langford and another. From the judgment entered in favor of plaintiff, defendant Langford appeals.

<p>Attachment—Equitable Interest in Land.</p> <p>Code Civil Proc. if. Y. § 644, provides that an attachment may be levied only on property “ not exempt from levy and sale by virtue of an execution. ” Section 1253 provides that “the interest of a person holding a contract for the purchase of real property is not bound by the docketing of a judgment, and cannot be levied upon or sold by virtue of an execution issued upon a judgment. ” Held, that the equitable interest of a person holding a contract of purchase of land is not subject to the levy of an attachment, though section 645 provides that the real property which may be levied on in attachment includes any interest in real property, either vested or not vested, which is capable of being aliened by the defendant, as the latter only applies to legal interest in lands.</p>

Action by the Manufacturers’ & Traders’ Bank against Nathan H. Wins-low and others. There was a judgment for defendants, and plaintiff appeals.

A proceeding by Wilson Agar and another against the estate of Jasper Ken-ay, deceased. The executrix appeals from an order granting plaintiffs’ motion to discontinue the proceeding on payment of a specified portion of her -costs.

Action of foreclosure brought by Robert RT. Marvin and others against Phebe Brandy and others. Defendant Brandy appeals from an order denying her application for an order opening the judgment taken against her by default, and for leave to come in and defend.

Action by William B. Beading against Jeremiah 0. Lamphier to recover damages for conversion of personal property belonging to his intestate. There was a verdict and judgment for°plaintiff, and defendant appeals.

<p>1. Husbahd Aim Wive—Contracts—Evidence.</p> <p>A claim by a husband that moneys received by him from his wife at different times, during a period of 14 years, were borrowed under an agreement that he would repay them with interest as she might require, and that certain securities he had delivered to her were collateral securities for the repayment of such loans, cannot be sustained when supported mainly by his own unsupported testimony relating to verbal communications between him and his wife, while, on the other hand, the latter positively denies making any loans, and testifies that her husband voluntarily offered to manage her estate, and return to her all the increase thereof, whether invested in securities or his business, and no reason is disclosed why the securities turned over to her were all taken in her name, as if part of her separate estate.</p> <p>2. Appeal—Harmless Error.</p> <p>In an action at law to recover overpayments on contract debt, plaintiff cannot be heard to complain that there has been a mistrial, for the reason that while the referee found a certain sum to be due from plaintiff to defendant, yet he did not direct a judgment for the same.</p>

Action by George H. Hamlin & Co. against Adaline Young, originally brought in the city court of Auburn, and taken by appeal to the county court of Cayuga county, where judgment was rendered for defendant upon the verdict of a jury in her favor. Plaintiff appeals.

Action by Thomas Clement against the New York Central & Hudson River Railroad Company. There was verdict and judgment for plaintiff, and defendant appeals.

Mahlon J. Gould appeals from a decree admitting to probate, upon the petition of Elam A. Hatch, the last will and testament of Daniel Gould, deceased.

Action by James S. Havens, receiver of David Selling, against Julia A. Exstein and others, to set aside as fraudulent an assignment of certain goods. From a judgment dismissing the complaint plaintiff appeals.

Action by John Lamberty against Milton J. Roberts. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

Action by Catherine Cowan against the Third-Avenue Bail way Company to recover for injuries sustained by being knocked down by one of defendant’s cable-cars. There was a verdict for plaintiff for $500. From the judgment entered thereon defendant appeals. For former report, see 1 N. Y. Supp. 612.

Action by Arnold Leo against Israel Joseph and Joseph Albert Joseph. Plaintiff appeals from an order dismissing supplementary proceedings upon the ground that the judgment entered in the action had been discharged by bankruptcy proceedings.

Action by Michael H. Cashman against Hugh M. Reynolds and Bridget M. Reynolds, commenced by service of summons and complaint upon defendants on Hovember 8, 1889. On Hovember 27, 1889, the defendants were granted an extension of six days in which to answer or demur. On December 5, 1889, defendants interposed a demurrer to the original complaint, and on December 7, 1889, plaintiff served an amended complaint upon defendants.

Action by Victoria A. King and another, administrators of Alonzo F. King, against Joseph Reed, commissioner of highways of the town of Manchester, in the county of Ontario, to restrain defendant from laying out a highway. Plaintiffs appeal from an order vacating a temporary injunction.

Action by Daniel B. Childs, receiver of the firm of C. M. Foster & Co., against Edward T. Latham, Jacob Wernberg, and others. From the judgment entered therein the defendants, other than Latham, appeal.

<p>Assignment for Benefit of Creditors—Fraud—Subsequent Acts.</p> <p>Where the assignor, shortly before making an assignment for benefit of creditors, conveyed his land to his wife through the medium of his son, who was also the assignee, evidence of acts after the assignment on the part of the assignor, his wife, and the assignee, who were charged with conspiring to deprive creditors of the benefit of the assignor’s property, indicating a purpose to withhold certain articles from the inventory, is admissible, as tending to show the original intent in making the-assignment.</p>

Appeals from special term, Monroe county. Claims presented by Titus Hart and others against the estate of Eliza Hart Kinyon, represented by defendant, James B. Castle, her executor. Plaintiffs appeal from a judgment entered in pursuance of the report of the referee in a reference ordered by the surrogate,‘and from an order of the special term denying their motion for a new trial on a case and exceptions.

Action by Henry Hanson and another against Patrick J. Langan and another. Defendants appeal from order denying their motion to vacate an order of arrest. Code Civil Proe. H. Y. § 549, subd. 4, provides that a defendant may be arrested “in an action upon contract, express or implied, * * * where it is alleged in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability. ”

Action by Don A. Gaylord against Sarah J. Howes. A verdict was directed for plaintiff, and from the judgment entered thereon defendant appeals.

The action was on a promissory note in these words: “$200. New York, Aug. 12th, 1889. “Two months after date, I promise to pay to the order of Wyckoff Bros, two-hundred dollars at the Sprague National Bank, Brooklyn; value received. “E. R. Middlebrook. “Indorsed: “Wyckoff Bros. “Lemuel H. Wilson.” The action is by the payees against Lemuel H. Wilson, who, according to the form of the note, is second indorser.

At chambers. Action by the Bowery Bank of New York against Henry Widmayer. Defendant moves to vacate an order in aid of an execution against the defendant’s property.

<p>At chambers. Preliminary objections to sufficiency of notice of trial of issue of law arising upon a demurrer to the complaint.</p>

<p>Appeal from trial term.</p> <p>Action by Van Allen Pugsley and Girard P. Chapman against John Devlin. There was a verdict and judgment for plaintiffs, and defendant appeals.</p>

<p>Vendor and Vendee—Implied Reservations—Easement.</p> <p>The vendor of a lot which is part of a tract owned by him can impose no servitude on the lot so sold in favor of the portion retained by him in derogation of his grant, without an express reservation to that effect in the grant. Eollowing Bv/rr v. Mills, 31 Wend. 390.</p>

Action by Jacob Krahner against John Heilman to recover broker’s commissions upon sale of real estate. Code Civil Proc. H. Y. § 3216, gives defendant the right, on filing an undertaking, to have certain cases removed from the district courts of New York city to the court of common pleas, and provides that he may apply for an order of removal after issue is joined, and before an adjournment has been taken, on his application.

<p>Application for the remission of a forfeited recognizance wherein Antonio Grasson was principal and Michael Bofrano surety.</p>

Action by Henry B. Dreher against Patrick Connolly and Patrick Mahony for goods sold and delivered. There was judgment for plaintiff, and defendants appeal.

<p>Partnership—Evidence—Sufficiency.</p> <p>Evidence that a person owns the horses, trucks, and utensils used in the business of a partnership, and that bills of the firm have been paid by her, justifies a finding that she was a member of the firm.</p>

Action by Charles G. Smith against S. Morris Pryor and Charles W. Drake to recover the value of stock sold by defendants on account of plaintiff’s assignor. There was a verdict for defendants. A motion made by plaintiff at special term for a new trial on the ground of newly-discovered evidence, and upon the ground of error in the charge of the justice to the jury, was denied, and the order of denial affirmed at general term of the city court. Plaintiff again appeals.

<p>1. appeal—Summary Proceedings—Court of Common Pleas.</p> <p>Code Civil Proc. N. Y. § 8313, originally empowered the common pleas court to-“reverse, modify, or affirm” judgments of the district courts, and section 2260 afterwards provided that appeals from final orders in summary proceedings might be taken to the same court, “in the same manner, ” and “with like effect, ” as appeals from the district courts. Held, that a subsequent amendment to section 3313, which gave the common pleas the additional power “to order a new trial” when it reversed a judgment of the district court, would also enlarge its power to the same extent on appeals from final orders in summary proceedings.</p> <p>2. Same—Reversal—Restitution.</p> <p>In cases of reversal on appeal from a final order in summary proceedings, the-common pleas court is required, by Code Civil Proc. N. Y. § 2263, to order restitution to the defendant; but the power of restitution is merely collateral to the disposition of the appeal, and therefore does not exclude the construction by which the larger power to order a new trial is given.</p>

<p>Death—Presumption from Absence. '</p> <p>Where a woman 18 year of age, illiterate, with vicious propensities, and aban doned by her parents when quite young, escapes from an orphan asylum in which she is confined, no presumption of death arises from the fact that she has failed to answer advertisements inserted in various papers, and that for more than seven years since her escape all trace of her whereabouts has been lost.</p>

Accounting by Alfred M. Wiles and John Butler, executors of the will of Patrick Butler, deceased. Laws 17. Y. 1884, c. 899, § 1, amended Code Civil Proc. 17.

Action by Charles B. Johnson against the Union Switch & Signal Company.

On exceptions from j ury term. Action by Frank W. Miller, assignee of Charles It. Johnson, against the Union Switch & Signal Company, to recover money due said Johnson under a contract between him and defendant. The facts are sufficiently stated in Johnson v. Signal Co., ante, 655, except that the complaint alleges in this case that, after the termination of the contract there set forth, defendant continued to use the patents mentioned therein.

<p>Appeal from municipal court.</p> <p>Action by Manly 0. Green, as receiver of John Hauser, against Anna Hauser. There was judgment for defendant, and plaintiff appeals.</p>

Action by Isaac Boasberg against Timothy J. Cronan and Empire Lodge No. 57, Empire Order of Mutual Aid.

Action by Joseph Toms against Henry Greenwood and others. There was an interlocutory judgment for plaintiff, and defendant Greenwood moves for a new trial.

On certiorari. Augustus E. Soer, a private in Company K, fourteenth regiment of the National Guards, was fined $13.25 by a regimental court-martial for non-attendance at company drills and for non-payment of company dues. He then sued out a writ of certiorari against Austin 0. Crane, the president of the court-martial.

<p>Submission, on agreed facts, of a controversy between E. Clarence Hovey and another, executors, etc., of Rebecca E. Robertson, and George E. Chisholm.</p>

<p>Appeal from court of general sessions, New York county.</p> <p>Patrick W. Connor was found guilty on an indictment for rape, and appeals.</p>

Action by Hedwig Blaechinska against Howard Mission and Home for Little Wanderers. There was verdict and judgment for plaintiff, and an order denying a motion for a new trial. Defendant appeals.

Action by Henry Abegg and others, composing the firm of Abegg, Daeniker & Co., against Emanuel Schwab individually, and as surviving member of the firm of Schwab & Son, Hermann Trohmann, as assignee of Emanuel Schwab, Joseph Lillienthal, Theresa Schwab, and Levi J. Gazan, to set aside judgments confessed by defendant Schwab, and also an assignment of all his property as fraudulent. There was a decree for plaintiffs, and defendants appeal.

On the 29th day of May, 1888, Simeon Smith made complaint to M. BT.

<p>Street Railroads—Change oe System—Constitutional Law.</p> <p>Const. N. Y. art. 3, § 18, providing that no law shall authorize the construction or operation of a street-railway except by consent of the owners of one-half the value of the property bounded on, and also of the local authorities in control of, the street or highway on which it is proposed to construct or operate such railroad, applies not only to proposed street railroads, but to constructions undertaken by corporations on their existing lines of railroad; and Laws N. Y. 1889, c. 531, § 13, authorizing any surface railroad to operate its road by cable or electricity, instead of by animal or horse power, on consent of the owners of one-half in value of the abutting property, or, in lieu of such consent, the determination of three commissioners to be appointed by the general term of the supreme court, is obnoxious thereto, in that it dispenses with the consent of the local authorities, and undertakes to substitute for them the board of railroad commissioners.</p>

<p>1. Certiorari—Motion fob Further Returns—Appeal.</p> <p>An appeal from an order denying a motion for a further return by the board of assessors to a writ of certiorari to review an assessment in no way involves the merits of the controversy, and the only question which will be considered is whether the court was justified in denying such motion.</p> <p>2. Same—Returns—Opinions of Counsel.</p> <p>The opinions of counsel in respect to questions submitted to them by the board of assessors, in regard to the assessment, form no part of the return to such writ.</p>

Relator, Philander D. Ellithorpe, appeals from an order denying his motion to compel the judges of the superior court of Buffalo to rescind their action removing him as crier of the superior court of Buffalo, and to reinstate him therein.

Action by Allison Bros. Company against James C. Hart, impleaded with others. Defendant Hart appeals from a judgment overruling his demurrer to the complaint. For opinion vacating a preliminary injunction, see 7 FT. Y. Supp. 268.

<p>Appeal from special term, Monroe county.</p> <p>Action by Sylvester Trimmer against the city of Rochester. Plaintiff appeals from a judgment dismissing his complaint upon the merits.</p>

George W. Bockwell, proponent of the will of Elizabeth A. S. Bockwell, appeals from portions of an order entered on a motion by John J. P. Beed, the contestant, for a struck jury. For former report, see 2 IT. Y. Supp. 378.

Action by Walter Reid against the mayor, aldermen, and commonalty of the city of New York, to enjoin the cutting off of the use of Croton water from plaintiff’s buildings, and to have the department of public works cancel a lien for water-rents on said premises of $105. The complaint was dismissed, with costs, and plaintiff appeals.

<p>Boundaries—Province of Jury.</p> <p>On an issue as to the location of a boundary line, it was shown that an ancient survey called for a line “thence west 482 chains 31 links to a post. ” A surveyor testified that within a short time before the action the monuments called for by the survey were in existence, and indicated the line to be where it had been supposed to be for 90 years, but which was not a direct line, as in the language quoted. Held, that whether the line was indicated by monuments was a question for the jury.</p>

Appeals from special term, Monroe county. Action by Enos B. Wood, as supervisor of the town of Hamlin, against the board of supervisors of Monroe county and Alexander Me Yean.

<p>Office and Officer—Appointment—Union Soldiers—Mandamus.</p> <p>Laws N. T. 1887, c. 464, § 1, provides that honorably discharged Union soldiers shall be preferred in municipal appointments. Buffalo City Charter, tit. 3, § 50, (Laws N. Y. 1870, c. 519,) provides that the street commissioner, “by and with the advice and consent of the common council, ” may appoint as many inspectors of streets as the council might authorize. Held, that ma/ndamus would not lie to the council to confirm an appointment made by the street commissioner pursuant to the act relating to veterans, where there was no bad faith on the part of the council in rejecting such appointment.</p>

Action by Byam K. Stevens against the New York Elevated Bailroad Company and another. Defendants’ motion for a retaxation of costs, where the clerk taxed the cost of the stenographer’s minutes used by the plaintiff in preparing amendments to the proposed case on appeal, was denied. The defendants’ affidavits showed that the copy of the minutes had been procured after the trial, and before the decision of the court at the trial term. Defendants appeal.

Action by Henry G. Volkmar against the Manhattan Bailway Company, Plaintiff appeals from judgment entered upon a verdict directed against him, and from an order denying his motion for a new trial.

Action by Louis Schoen, as administrator, etc., of Christian Schoen, against the Dry-Dock, East Broadway & Battery Railroad Company. The trial court dismissed the complaint, and from the judgment entered in defendant’s favor plaintiff appeals.

Action by Alexander Kuh against The Metropolitan Elevated Bail way Company and the Manhattan Bail way Company to restrain the maintenance and operation of defendants’ elevated railroad in front of plaintiff’s premises, Ho. 879 Sixth avenue and 2405 and 2407 Eighth avenue, New York city, and to recover damages.

Action by Myra L. Wadsworth against the Jewelers’ & Tradesmen’s Company of New York, to recover $4,000 upon a certificate of insurance for that amount, issued by defendant upon the.life of Elbert B. Wadsworth, and payable to plaintiff. Defendant claims that plaintiff was entitled to $1,438.68 only, because the mortuary fund of defendant at the time of the death was insufficient to pay the full amount of the certificate.

Action by Allen C. Dalzell against the Fahys Watch-Case Company. Before serving a complaint, plaintiff obtained an order, under Code Civil Proc. FT.

<p>Appeal from special term.</p> <p>Action by Thomas J. Clute against Richard Mahon and another. Plaintiff appeals from an order denying his motion to open a default.</p>

<p>Appeal from a judgment on report of referee.</p> <p>Action by Dennis W. Moran against the Murray Hill Bank and others to foreclose a mechanic’s lien under the cities act, (Laws H. Y. 1878, c. 315.) Plaintiff, who furnished materials to James Duffy, filed a mechanic’s lien against money owing by the city of New York to Duffy. The contract upon which the moneys became due was made by the city with Duffy, and provided for the erection of a building for the fire department. There was admitted to be due upon the contract $12,516.73. On December 3, 1886, Duffy, in consideration of $6,000 advanced to him, assigned to defendant bank $6,000 due or to grow due under the contract. Subsequently, and in consideration of work and materials furnished the buildings, Duffy made an assignment to defendant Lewis O. Tufts, of $5,000, due or to accrue on the same contract, subject to the transfer already made to the bank. Defendants Tufts, McCandee & Smith, and McShane & Co., and others, also filed liens against the fund. The action was referred. At the opening and close of his case, Tufts claimed both upon his assignment and upon the lien which he filed, and to the referee’s refusal to compel him to elect the defendant bank excepted. The referee sustained the liens of plaintiff and of defendants Tufts, McCandee & Smith, and McShane & Co., and declared the others void. The bank appeals from the portions of the judgment sustaining the liens, and adjudging that the payment of its claim should be deferred until the claims of the other parties should be satisfied.</p>

<p>Negdigenoe—Dangerous Premises—Evidence.</p> <p>In an action to recover for injuries sustained by plaintiff from the falling upon her of a stone slab, which had been placed upon the top fire-escape of a tenement owned and controlled by defendant, there was evidence that defendant had had actual notice of the position of the stone, and had neglected to remove it, although eight days before the accident the apartments, in front of which the fire-escape was, had been vacated, and defendant given full control over them; and that defendant’s housekeeper, who had charge of the house generally, had seen the stone from 13 to 18 months in the same position. Held, that motions to dismiss the complaint, and to direct a verdict for defendant, were properly denied.</p>

Action by Charles H. Loeber against Isaiah L. Roberts to recover damages for injury done to plaintiff’s property by the negligence of defendant in setting fire to the same.

Action by Frederick Marx and others against Eugene A. Gross and others. Plaintiffs appeal from an order allowing defendants to serve an amended answer.

Action by Anthony Prisco against Herman Hug. The trial court directed a verdict for defendant, and from the judgment entered thereon plaintiff appeals.

<p>Appeal from jury term.</p> <p>Action by Patrick Dervin against Henry Herrman, Charles Sternbacb, and Abraham Herrman. Plaintiff appeals from a judgment dismissing his complaint'on the merits.</p>

Action by Theodore Haebler and Oscar Faehrmann against John G-. Bernharth and others. Defendants appeal from an order denying their motion to vacate the warrant of attachment issued therein. For court of appeals’ opinion, sustaining the attachment against subsequent lienholders, see 22 N. E. Rep. 167, reversing 4 N. Y. Supp. 873.

Action by John D. Demarest against William Koch, impleaded with Rosanna Spaulding, to recover $2,590 for labor and material furnished in the erection of two houses, the complaint alleging that defendants were copartners.

Action by Leo Schlesinger and Abraham Schlesinger against the Springfield Fire & Marine Insurance Company, to recover $2,000, the amount of insurance effected by defendant on a stock of goods belonging to plaintiffs, and stored in the basement of a building occupied by them. The jury found a verdict against defendant for $1,200.

Action by Hannibal G. Cutugno against the mayor, aldermen, and commonalty of the city of New York. Defendants appeal from an order overruling a ■demurrer to the complaint.

Action by Jacob W. Mack, as assignee for benefit of creditors of Rindskopf Bros. & Co., against Alexander Y. Davidson, as sheriff of the city and county of New York, to recover damages for the alleged conversion of merchandise formerly belonging to the assignors, and levied on in possession of plaintiff, by defendant, as sheriff, under legal process issued at the instance of creditors of the firm.

Action by the Star Printing Company against William S. Andrews, individually and as trustee, and Charles W. Dayton, individually and as trustee. Plaintiff appeals from a judgment dismissing its complaint on its merits.

<p>1. Sale—Action for Price—Acceptance.</p> <p>In an action for the price of vans, evidence that they had been used by defendants for a long time, and were still being used, without any return or offer to return, warrants the conclusion that defendants had accepted the vans as built in accordance with the contract.</p> <p>2. Same—Manufactured Articles—Inspection.</p> <p>Testimony that one of the defendants was at plaintiff’s shop every few days during the construction of the vans, and took charge of them, and called plaintiff’s attention to the manner in which the panels should be constructed, precludes any recovery by defendants on the ground of a latent defect, in that the panels were not. as thick as they should be for vans of such a size.</p> <p>8. Same—Evidence—Materiality.</p> <p>Where the time of the delivery of goods sold becomes material in an action fertile price, and defendants put in evidence their books containing entries of the time of delivery, the meaning of certain marks on the books near the entries becomes immaterial where the person who made the entries testifies that the entries-were made before the marks were.</p>

Action by the Second Avenue Railroad Company against the Metropolitan Elevated Railroad Company and the Manhattan Railway Company. An amendment of the complaint was allowed, and defendants appeal. The provisions of the Code of Civil Procedure referred to in the opinion are as follows: “Sec. 723.

Case submitted on agreed statement. Action by Francis Osborn and others against William C. Rogers and others on a joint and several bond.

Action by Elwood S. Hand against the Belcher Mosaic Glass Company for money alleged to be due on a contract by which defendant agreed, in consideration of the insertion of an advertisement in a book about to be published by plaintiff, to pay “$220 in trade, on publication of book and delivery to” defendant of specimen copy.

<p>Mortgages—Redemption—Parties.</p> <p>A mortgagee who has sold the mortgaged premises at foreclosure sale is not a proper party to an action to redeem, and is not made such by an allegation in the complaint that she is interfering with the rents, in the absence of any alleged claim of right to do so as owner or mortgagee in possession. Clement, C. J., dissenting.</p>

Action by Charles P. Wahlig” against the Standard Pump Manufacturing Company on a promissory note. There was a trial by the court without a jury. For former report, see 5 FT. Y. Supp. 420.

An action by Louis Mikkelsen to recover for injuries sustained while engaged in dismantling a vessel owned by defendant, the Ocean & Inland Transportation Company. While the main topmast was being lowered, the rope which held it broke, and the mast fell on plaintiff’s leg, causing the injuries complained of. There was a verdict for plaintiff, and from the judgment entered thereon defendant appeals.

Action to foreclose a mortgage, brought by William P. Titus against John E. Haynes and Ann, his wife, impleaded with Lucy K. Merwin. There was judgment for plaintiff. Defendants appeal.

<p>Appeal to Court op Appeals.</p> <p>An appeal will be granted to the court of appeals from a decision of the general term of the common pleas, where the questions involved present features not clearly within former decisions, and the liability of appellant is highly penal, and many other pending actions will depend upon the adjudication.</p>

Action by John J. Hames and Henry Staples against John B. Judd to recover for goods sold and delivered. Plaintiffs appeal from so much of an order granting them a commission to take testimony abroad as requires them to give security for defendant’s costs. Code Civil Proc. § 889, provides that, “ upon granting the order, the court or judge may, in any case, impose such terms as justice requires.”

Motion to dismiss appeal. Action by George W. Lane and others against Elias O. Humbert. There was a judgment for plaintiffs, and defendant appeals. Respondents now move to dismiss the appeal for want of prosecution and for irregularity.

<p>Application to discharge a judgment on a forfeited recognizance.</p>

Action by Hugh O’Neill against Ephraim Howe to recover $750 on account of work, labor, and services in the sale of defendant’s goods on commission. The answer admitted a small indebtedness, and counterclaimed for a balance for goods sold and delivered to plaintiff. The action was referred, and a judgment entered upon the report of the referee in favor of defendant for costs was affirmed by the general term of the city court of New York, and plaintiff again appeals.

<p>Appeal from Monroe county court.</p> <p>Action by Clark Woodworth against Thomas C. Hodgson and another, originally brought in the municipal court of the city of Rochester, and taken by appeal to the county court, where there was a verdict and judgment for plaintiff, from which defendants appeal.</p>

<p>Landlord and Tenant—Power of Attorney—Lease by Mortgagee.</p> <p>A power of attorney, given by a mortgagor to his mortgagee, to rent the mortgaged premises, collect the rents, and apply them to the mortgage, and for the further purpose of selling and conveying the premises, does not place the mortgagee in possession so as to make him the landlord of a tenant to whom he had let the premises.</p>

<p>Appeal from special term,. New York county.</p> <p>Action by Benjamin C. Wetmore, executor of the will of Mary Hopeton Drake, deceased, against the New York Institution for the Blind and others, legatees under said will, to have a construction of certain clauses thereof. Five of the defendants appeal from portions of the judgment.</p>

<p>Appeal from special term, Jefferson county.</p> <p>Actions by Byron B. Taggart, William W. Taggart, and Miranda Bothwell, and by Joseph Mullin, as receiver, etc., against Humphrey Sisson and others. Plaintiffs appeal from a judgment dismissing their complaint.</p>

<p>1. Justice of the Peace—Judgment by Default.</p> <p>Where the summons in a justice’s court is served as required by Code Civil Proc. N. Y. § 2878, the fact that the complaint was not sufficiently served to authorize the justice to enter judgment by default without further proof, does not prevent the justice from taking proof and entering judgment accordingly; and whether he proceeded properly, or entered judgment without proper proof, can only be considered in a direct proceeding to review the judgment.</p> <p>U. Assignment fob Benefit of Ceeditobs—Pbiob Fraudulent Conveyance—Suit by Judgment Ceeditobs.</p> <p>Where a debtor has made a valid assignment for the benefit of creditors, subsequent judgment creditors cannot for their own benefit, and in their own name, sue to set aside as fraudulent a prior conveyance by him; and if, when such suit is commenced, plaintiffs have no right to bring it, nothing that happens afterwards can give them standing.</p> <p>3. Same—Pleading.</p> <p>It is not necessary that the answer in such a suit shall allege the non-joinder of the assignees, where it alleges the execution, recording, and existence of the assignment, and that plaintiffs are not the proper parties to bring the suit.</p> <p>4. Same—Sufficiency of Assignment.</p> <p>Laws N. Y. 1888, c. 294, requiring an assignment for the benefit of creditors to state the place of residence of the debtor, the business in which he is engaged, where it is carried on, giving the street and number, if in a city, and, if not, some sufficient designation to identify the debtor, is only directory, and an assignment which merely describes the debtor as “ of the town of Croghan, Lewis county, N. Y., ” is not void on its face. Following Taggart v. Slsso?i, a/nte, 758.</p>

<p>Assignment fob Benefit of Creditors—Suits bit Creditors.</p> <p>Until an assignee for the benefit of creditors has qualified, Ms refusal to sue to set aside as fraudulent a subsequent conveyance by the debtor cannot give the judgment creditors the right to maintain such suit.</p>

<p>1. Master and Servant—Compensation—Share of Profits.</p> <p>Plaintiff entered defendant’s employ under a written agreement to receive for his services one-fourth part of the net profits of the business, “to be paid him as follows: The sum of §20 each week during said employment, and at the end of each year’s business * ® * such a sum as, added to the aggregate amount of such weekly payments, shall equal the one-fourth of the net profits of said business. ” Meld, that defendant was not entitled to have the weekly payments to plaintiff treated as part of the expense account, and that the profits were properly estimated on the finished sales while plaintiff was in defendant’s employ.</p> <p>3. Evidence—Parol to Explain Writino.</p> <p>Evidence of an oral' arrangement between the parties that the stock should be called §5,000, and on that valuation plaintiff should receive one-fourth of the net profits, was admissible, as it in no way contradicted the written contract.</p>

On exceptions from circuit court. Action by George W. Bennett and others against Austin K. Knapp and others. A nonsuit was granted in the circuit court, and plaintiff moves for a new trial on a case, and exceptions ordered to be heard at general term in the first instance.

<p>VOLUNTABY PAYMENT—MISTAKE OE PACT.</p> <p>A purchaser of mining property agreed in writing to make an “equitable” settlement of a balance claimed by defendant for his services in opening mines on the premises, and to indemnify his vendor therefrom. The agreement also recited that the vendor did not admit any liability whatever to defendant. Without making further inquiry plaintiff paid defendant part of an amount which the latter falsely represented to be due him. Held, that this was not a payment made under a mistake of fact.</p>

<p>Arrest—In Civil Cases—Pleading.</p> <p>Under Code Civil Proc. N. Y. § 549, providing that a defendant may he arrested in an action to recover money or property, where it is alleged in the complaint that the money was received or the property was embezzled or fraudulently misapplied by a factor, agent, broker, or other person in a fiduciary capacity, a complaint, in order to justify an arrest in an action against an agent, must allege specifically that the money sued for was received by defendant in a fiduciary capacity. Following Bartlett v. Sutornis, 6 N. Y. Supp. 406. Brady, J., dissenting.</p>

Action by Elizabeth Bickford against Henri Menier, Gaston Menier, and Albert Menier for money loaned. Defendants, chocolate manufacturers, residing and doing business in France, sent Edward Bickford, a clerk in their London house, to New York to receive consignments of their goods, sell, and remit. While in New York he borrowed £1,200 of plaintiff, his sister, to meet the expenses of the business.

<p>Principal and Surety—Protection op Surety—Collateral Security.</p> <p>Plaintiff was assignee of a bond executed by defendant as surety for her husband, the principal obligor, which was secured by a first mortgage of the husband’s land. The plaintiff was also the holder of a second mortgage of the same land. The husband was insolvent. Held, that plaintiff would be required to exhaust his security under the mortgage before enforcing defendant’s liability on the bond, and an action theretofore brought on the bond would be suspended until proceedings were had on the mortgage.</p>

<p>Action by the Metropolitan Exhibition Company against John M. Ward. Plaintiff moves for a preliminary injunction.</p>

Jane A. May, executrix of Vashti Acker, appeals from so much of the decree settling her accounts which refuses to confirm the report of the referee to whom the settlement of the accounts had been referred. For former litigation, see 6 N. T. Supp. 356, 357.

Action by Wilber J. Smith against John F. Mosher, Hiram Adye, and Tint Champlin, village trustees of Little Valley, for the seizure of plaintiff’s property under a tax-warrant issued by defendants.

Action of replevin by Christian H. F. Peters against Charles A. Borst, to recover manuscript prepared by plaintiff and defendant together, with the design of publishing an astronomical work to be known as the “Star Catalogue.” Plaintiff was at the time, and had been for a number of years, a director of the Litchfield Observatory at Clinton, PT.

<p>Appeal from circuit court, Jefferson county.</p> <p>Action by Patrick Phillips against the Rome, Watertown & Ogdensburg Railroad Company and the Utica & Black River Railroad Company to compel the determination of a claim to land in pursuance to Code Civil Proc. FT. Y. §§ 1638 et seq. In August, 1871, the Carthage, Watertown & Sackett’s Harbor Railroad mortgaged all its property for $150,000, and in 1873 it executed another mortgage for the same amount. It acquired the premises in dispute in November, 1872, having previously perpetually leased its road, so far as ■completed, to defendants in this action. This lease contained a clause providing that on the completion of the road, and on notice, and on request by defendants, the lease was to become one of the “entire road and railroad property and appurtenances.” In 1885 the president of the Carthage Company conveyed the land in dispute, a narrow, irregular strip, north of its fight of way, to plaintiff, who at once went into possession. Defendants ■having asserted a claim to the land under their lease, plaintiff instituted this action. There was a judgment in his favor, and defendants appeal. Code ■Civil Proc. N. Y. § 1638, provides: “Where a person has been * * * for three years in the actual possession of real property, claiming it in fee or for life, or for a term of years, not less than ten, he may maintain an action .against any other person * * * to compel the determination of any •claim adverse to that of the plaintiff which the defendant makes to any estate in that property, in fee or for life, or for a term of years not less than ten, in possession, reversion, or remainder.”</p>

<p>Appeal from special term.</p> <p>Action by Adam Emmeriek, as judgment creditor of Peter Hefferan, to set aside a conveyance by him to his wife, Catherine Hefferan. Upon the death of Catherine Hefferan, an order was made substituting in her place Henry A. Hefferan and Mary Josephine, his wife, and Mary M. Nesmith. There was judgment for defendants, and plaintiff appeals.</p>

<p>Appeal from special term.</p> <p>Action by Charles Northrop against Alfred H. Smith. Defendant appeals from an order granting the petition of William A. Harding to be substituted as plaintiff.</p>

On motions to vacate attachments. The attachments in these cases were issued against Simon Stern, executor, and Dinah Stern, executrix, of Joseph Stern, deceased, at the suit of Daniel H. Wickham and others, William Blackington and others, John Englefield and others, and Hyman Schenkeim and others.

Action by George H. Meyer and others against Lena Stitz and others, for the price of goods sold and delivered.

<p>Action by Anson P. Stephens against Benjamin Stein for rent. Mansell & Blume had leased the premises as a store-room from plaintiff for a year from May 1, 1889. During the tenancy (December 14, 1889) an attachment was levied on the stock of goods of the lessees, and two days later they made an assignment for benefit of creditors to defendant. The sheriff was in possession of the attached goods on the demised premises until January 30th, when the attachment was vacated. On February 1st defendant made a personal contract with plaintiff, whereby he was to occupy the premises by the month at a less rent than that reserved in the lease to Mansell & Blume.</p>

<p>Wills—Undue Influence.</p> <p>A husband gave by his will to his second wife his entire estate, part of which was in expectancy, to the exclusion of his children by his first wife, one of whom was an imbecile; and the wife without children executed a will, bearing even date, giving her husband her estate, which was twice as large as his. The husband survived six years without disavowing his will. Held, that probate of the husband’s will would not be denied, though he was a man of weak will, and was completely governed by his wife.</p>

<p>Application by the widow of William Koch, deceased, to have property belonging to the estate set apart to her.</p>

Action by Samuel D. Lux against Alexander V. Davidson as sheriff of the city and county of New York. Plaintiff appeals from a judgment entered upon a dismissal of his complaint. Por former report, see 8.M. Y. Supp. 933.

Action by David H. Gould, who sues for himself and others, against George I. Seney, Samuel Shethar, Metropolitan National Bank, and the Ohio Central Bailroad Company. Plaintiff appeals from the final judgment entered therein, and from portions of the interlocutory judgment.

_ Ejectment by Angus McDuffie against Adelia Clark. Judgment was entered on a verdict for defendant, and a motion for a new trial was denied; and plaintiff appeals. For opinion on appeal by defendant from an order granting a new trial, see 1 N. Y. Supp. 462.

Action for separation by Josephine M. McBride against Robert P. McBride. There was a decree for plaintiff, and defendant appeals. For former reports, see 5 IT. T. Supp. 388, and 6 IT. Y. Supp. 447.

<p>Appeal from special term, New York county.</p> <p>Action by Edward Mitchell and others against the Metropolitan Elevated Railway Company and the Manhattan Railroad Company. There was judgment for plaintiffs, and defendants appeal. For former report, see ante, 130.</p>

<p>Certiorari by John J. Quinn to review the action of J. Hampton Robb and others, as park commissioners of the city of New York, in dismissing relator from the police force of the park department.</p>

<p>Appeal from special term.</p> <p>This is an appeal by the Third Avenue Bailway Company of New York city from an order denying its application for writ of mandamus to compel Thomas T. Gilroy, commissioner of public works, to issue a permit to relator to open the streets along the route of its railroad for the purpose of constructing trenches and vaults necessary to the operation of its road by cable traction.</p>

<p>Appeal from circuit court; New York county.</p> <p>Action by Eleanor C. Phillips against the New York Life Insurance Company. There was a judgment in favor of defendant, dismissing the complaint on its merits, and an order denying a motion for a new trial; and plaintiff appeals.</p>

<p>Appeal from circuit court, New York county.</p> <p>Action by Jacob Oppenheimer against Asahel W. Humphreys, and Louis C. Whiton, as administrator of Adam H. Ward. The court directed a verdict for plaintiff, and from the judgment entered thereon defendants appeal.</p>

<p>Appeal from judgment on report of referee.</p> <p>Action by Robert Warren against the Rendrook Powder Company. There was judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Edward B. Babcock, on behalf of himself and all other stockholders of the Pottsville&New York Bailroad Company, similarly situated, Schuylkill & Lehigh Valley Bailway Company, to obtain specific performance of an alleged contract between the defendant and the said Pottsville & New York Bailroad Company. The plaintiff alleges that in March, 1887, two certain Pennsylvania corporations, the Pottsville & New York Bailroad Company and the Schuylkill & Lehigh Valley Bailway Company, were merged and consolidated, and that defendant is such consolidated corporation; that, as a part of the consideration for the said consolidation, it was agreed between the consolidating companies that the consolidated company should deliver to the Potts-ville & New York Bailroad Company, for the benefit of its stockholders, but subject to the use of so much thereof as might be necessary to provide for the payment of any debts, claims, or demands against either of the consolidating companies, $250,000, par value, of the defendant’s first mortgage bonds, $500,-000, par value, of its full-paid capital stock, and $25,000 in cash; that the said sum of $25,000 cash was sufficient to pay off all debts, claims, and demands against the consolidating companies in full; that no part of the said bonds or stock has been issued to the said Pottsville & New York Bailroad Company or to its stockholders; that at the time of the consolidation the plaintiff was the owner of 21-30 of the then outstanding stock of the Pottsville & New York Bailroad Company; that the plaintiff has requested the issue to him of 21-30 of the said bonds and stock by the defendant, but that defendant has refused so to do, although it has abundant stock and bonds unissued in its treasury; that by the merger and consolidation aforesaid the Pottsville & New York Bailroad Company was dissolved, and ceased to have any officers representing it other than the officers of the defendant; that the interests of those officers are antagonistic to the said alleged claim of the stockholders of the Pottsville Company against the defendant, and that said officers have repeatedly denied the validity or existence of any such claim; that the railroad of the defendant is only in course of construction; and that the said stock and bonds have no present market value. Judgment is then demanded that the defendant issue to the plaintiff 21-30 of the said bonds and stock, and that, in case of failure so to deliver, the defendant pay to the plaintiff the sum of $500,000 damages. The defendant demurs to the complaint on three grounds: First, that the court has not jurisdiction of the subject of the action; second, that there is a defect of parties defendant, in that neither the Pottsville & New York Bail-road Company, nor the directors or managers of said company at the time of its dissolution, if such dissolution has taken place, are made parties defendant; third, that the complaint does not state facts sufficient to constitute a cause of action. Section 1780 of the Code of Civil Procedure declares that “an action against a foreign corporation may be maintained by a resident of the state, or by a domestic corporation, for any cause of action.” The demurrer was overruled, and defendant appeals.</p>

<p>Appeal from special term, New York county.</p> <p>Action by Frederick A. Stokes, Horace Stokes, John A. Mitchell, and Andrew Miller against Frank Allen and Joel P. White. There was judgment for defendants, and plaintiff appeals. For former report, see 2 H. Y. Supp. 643.</p>

A creditor’s action by the Brooklyn Bank to set aside a conveyance made by defendant Archibald Lamon to defendant Mary Lamon, his wife, through the defendant Henry J. Smith. There was judgment for defendants, and plaintiff appeals.

Action by William Walther against Charles Regnault, Mary Riederer, and others for a partition of real estate. From a judgment dismissing the complaint, plaintiff and Mary Riederer appeal.

Action by the Hamilton Hational Bank of Boston and others against Richard H. Halsted, impleaded with William M. Halsted and others, composing the firm of Halsted, Haines & Co., to have a general assignment made by that firm declared fraudulent and void as against plaintiffs, and to have Richard H. Halsted, a preferred creditor under the assignment, pay over the amount of his preference, which had been paid to him by the assignee before commencement of this action, and also…

Action by Philip W. Scribner, as assignee for benefit of creditors of Howes Bros., to enforce a mechanic’s lien upon a building owned by defendant, Solomon Jacobs. There was judgment for defendant, and plaintiff appeals.

Action for a divorce by Kate P. Lutz against Alexander Lutz. Defendant appeals from a judgment granting a limited divorce, with alimony, on the grounds of cruel and inhuman treatment. For order denying motion to dismiss, see 8 M. T. Supp. 982, mem.

Action by First National Bank of Middletown, N. Y., against Council Bluffs City Water-Works Company on two promissory notes alleged to have been made by defendant, and to have been negotiated to plaintiff for value, before maturity. The notes were signed “Council Bluffs City WaterWorks Co. Harvey Allen, Treasurer.” Defendant denied the authority of Aliento make the notes. There was judgment for plaintiff, and defendant appeals.

Action by the Cattaraugus Cutlery Company against Andy J. Case. Plaintiff procured an attachment, and defendant moved to set it aside on the papers on which it was granted. From an order denying the motion, defendant appeals.

<p>Appeal from court of general sessions, New York county.</p> <p>James P. Henries was convicted of forgery in the second degree, and appeals.</p>

Case submitted on agreed statement. This controversy arises upon the question of the right of plaintiff, as surviving executrix of her father, Hugh Kelly, deceased, to convey property of her testator. Defendant, John Conley, Jr., claims that, under that will, plaintiff has no right to convey the premises in question, and that she has only life-estate therein, and is not entitled to convey as executrix.

Action by Benjamin Collins, against Long Island City and Erederick W. Bleekwenn, treasurer, etc., to avoid the payment of interest claimed as penalty for non-payment of taxes on real estate in defendant city. Defendants pleaded the ratification, confirmation, and levy of the taxes in question by the legislature. Laws 1882, c. 383, and Laws 1886, c. 656. There was judgment for plaintiff, and defendant appeals.

Action by George Rice against John D. Rockefeller and others, trustees of the Standard Oil Trust. There was judgment for plaintiff, and defendants appeal. For order directing a bill of particulars, see 1 N. Y. Supp. 222.

<p>Appeal from circuit court, Dutchess county.</p> <p>Action by John Flannery against J. Wesley Van Tassel. Plaintiff appeals from a judgment entered in favor of defendant upon the verdict of a jury.</p>

Action by George Cocks and others, as children of David Cocks, against Phebe C. Haviland and Daniel E. Haviland, to recover plaintiffs’ share of the residuary estate of John Cocks. The court dismissed the complaint as to Daniel E. Haviland, and rendered judgment against Phebe G. Haviland on the ground that, by her neglect to perform her duty as executrix of said John Cocks, she became personally liable to plaintiffs; and from this judgment she now appeals.

<p>L Insurance—Proof of Loss—Mortgagee.</p> <p>Where a policy is payable to the mortgagee of the insured premises, as Ms interest may appear, he is the “assured, ” within the meaning of a clause in the policy requiring the “assured” to deliver the preliminary loss statement.</p> <p>3. Same—Policy—Waiver of Conditions.</p> <p>A fire insurance policy, payable to a mortgagee of the premises, provided that it should be void if the mortgage was foreclosed without the company’s consent. A decree of foreclosure was obtained February 4th. On February 2d the mortgagee’s attorney wrote the company announcing the pendency of the suit, and asking a written consent. The company made no answer. On February 10th the premises were burned. Notice of loss was at once given by the mortgagee, and the company made no objection to the loss papers, except that the statement was not made by the assured. The local agent, with knowledge of the letter of February 2d, stated to the mortgagee, after the fire, that it was all right, he would get Ms money. Held, that there was either a waiver of the condition, or a neglect to refuse the consent as promptly as the occasion required, whereby the mortgagee was deprived of all power to protect himself by new insurance in case of a refusal.</p>

<p>Appeal from surrogate’s court, Kings county.</p> <p>The surrogate entered an order requiring Jacob C. Stines, an attorney and counsellor at law, to deposit with the Kings County Trust Company $593.66, being moneys collected by him for the account of the estate of Graciano de Oraindi, deceased, pending a reference as to whether he has any claim thereto for services rendered the estate; and he appeals.</p>

Action by Wilhelmina Luehsen against Unexcelled Fire-Works Company. There was a verdict and judgment for plaintiff, and defendant appeals. Argued before Barnard, P. J., and Dykman and Pratt, JJ.

<p>Appeal—Review—Weight op Evidence.</p> <p>Where a question of fact is submitted to the jury with proper instructions, and there is evidence to support the verdict, it will not be disturbed.</p>

Action by George H. Deller against the Staten Island Athletic Club, a corporation, to recover moneys expended for defendant’s benefit. There was judgment for plaintiff, and defendant appeals. For report on a former appeal, see 4 FT. Y. Supp. 311.

Action by Ezra A. Hayt against Bernard J. Malone, Joseph Malone, and Putnam Corset Company. Defendants appeal from an order continuing a temporary injunction enjoining defendants from appropriating, removing, or interfering with the assets, etc., of the company until the trial.

Action by Diedrich Yon Mallen against Carl Fuhrman, as executor of Emily Fuhrman, deceased, to recover the value of groceries and provisions sold testatrix. There was judgment for plaintiff. Defendant appeals.

<p>1. Sale—Breach of Warranty—Measure of Damages.</p> <p>When buying a horse from defendant, plaintiff’s attention was called to a defect on its hind legs, which defendant said was natural. The sale was not concluded at that time. A day or two afterwards an employe of defendant brought the horse to plaintiff, and agreed that, if it went lame on account of the defect, there should be no sale. Plaintiff took the horse, which went lame from the defect. Held, that defendant was bound by the warranty, and that the measure of damages for the breach thereof was the depreciation in value because of the defect.</p> <p>2. Appeal—Harmless Error.</p> <p>Error in the admission of evidence of the employe in proof of his agency was cured by proof of statements by defendant that the employe was authorized to warrant against the defect.</p>

Action by Edward Kane against the New York, New Haven & Hartford Eailroad Company to recover damages for personal injuries received while driving across defendant’s railroad. The court refused to charge that defendant was not bound, as a matter of law, either to ring its bell or blow its whistle, and said they must do one or the other. There was a verdict for plaintiff for $2,000. From the judgment entered thereon, defendant appeals.

Action by George Chatfield against Charles Reynolds. Plaintiff appeals from an order of the county court permitting defendant to amend his notice of appeal to that court.

Action by Kate Hogan against Allen C. Smith and others to recover $5,000 damages for the death of plaintiff’s intestate, her husband, occasioned by the negligence of defendants. Plaintiff’s intestate, who was a longshore-man, was employed by defendants in helping to store a cargo of flour on the ship Devenía, on June 6, 1881, at pier 21 Horth river. It appeared by the evidence that the deceased was working on what is called the “orlop deck” or the lowest deck of the vessel.

Action by Jacob S. Rogers and Thomas Benny against the New York db Texas Land Company, Limited, impleaded with William Walter Phelps and others as directors of the company. From a judgment dismissing their complaint plaintiffs appeal.

<p>Appeal from jury term.</p> <p>Action by Bernard Brady against the mayor, aldermen, and commonalty of the city of New York. The trial court ordered a verdict for the plaintiff on the first cause of action, and dismissed his complaint on the second cause of action; the reasons assigned at folio 173 of the ease being as follows: “The-alleged second cause of action is that, by making a false final certificate, the engineer in charge allowed to the plaintiff 7,783 cubic yards of earth less than should have been allowed to him. If this had been so, it would involve that the same number of cubic yards of rock were allowed in place of the earth, when they should not have been allowed at all. The consequence would be that the entire final certificate would have to be disregarded, and the plaintiff, if he could recover at all, would have to recover both upon his first as well as-upon his second cause of action, without any certificate at all. This he probably could dd, if upon the proofs the case were one of a fraudulent certificate, or one of no certificate at all, because the- proper certificate was unreasonably withheld, like the ease of an architect who unreasonably withholds the proper certificate. There are also some cases in which a palpable mistake has been sometimes held to have the same effect, but in every such case the palpable mistake was a mistake so palpable that it was clear beyond dispute. But the evidence in this case does not establish such a ease. Leaving out of view for a moment the testimony of Klinckerfeus, the testimony of all the other witnesses is extremely vague and unsatisfactory. It really establishes nothing. The mere fact that Klinckerfeus, the assistant of Herman K. Viele, [the surveyor,] made a certain map which seems to support plaintiff’s contention, and that Viele, on being shown said map, remarked to the plaintiff, ‘Oh, I know all about that,’is not sufficient to establish that subsequently Viele made a wrong or fraudulent classification of the quantities of earth and rock. Klinckerfeus may have made that map according to certain appearances as they presented themselves to him, at a certain time; but Viele was the man who subsequently had to make the final classification of the quantities upon the facts and circumstances in the case, according to the peculiar provisions of the contract. These provisions, certainly, were very peculiar; and, according to them, Viele’s decision, in the absence of fraud or palpable mistake, was to be final. There being no evidence of fraud, or such a palpable mistake as is equivalent thereto, the consequence is that the final classification of quantities, and the quantities as classified, as made by Herman K. Viele under and in pursuance of the provisions of the contract, must be held to be conclusive upon the parties; and by this I mean upon both parties. The consequence is that the complaint must be dismissed as to the second cause of action. The further consequence will be, especially as the defendants have admitted the binding force of the certificate upon them so far as the classification of quantities and the quantities as classified is concerned, that the defendants, upon. their defense as against the first cause of action, cannot be permitted to disturb the classification as made.” Both parties appeal.</p>

<p>Appeal—Decision—Reversal.</p> <p>Where, in an action for chattels unlawfully detained by defendant, the court finds for plaintiff, but assesses the value at less than the undisputed evidence shows it to be, the judgment will be reversed, and a new trial ordered, as the appellate court cannot render judgment for the value.</p>

Henrietta A. Lenox made several bequests to institutions. The question presented is whether these legacies are subject to taxation, under the collateral inheritance act.

Action by Emma L. Shaw against her husband, Winfield S. Shaw, to compel him to account for $14,680.42, received by him from her prior to their marriage. There was a decree for plaintiff, and defendant appeals.

<p>Appeal—Weight op Evidence—Trial by Court.</p> <p>A decision on a question oí fact by a judge, on a trial without a jury, will not be disturbed on appeal where the testimony is evenly balanced.</p>

<p>Injunction—Contempt.</p> <p>The National Trotting Association, an organization composed in part of driving park and track associations, and organized for the promotion of trotting interests, was enjoined from investigating a charge of fraud then pending before a committee of the association known as the “Board of Review, ” or from passing any order of suspension or expulsion in the case, or from taking any further action in respect to said charge. Held, in proceedings for contempt, that the Congress of the National Trotting Association, composed of the owners and representatives of each local race-course within this association, being a different organization, and created for other purposes, could suspend the plaintiff from all privileges on the courses in membership with the National Trotting Association until the injunction was dissolved, and the charge of fraud legally investigated by the board of review.</p>

<p>At chambers. Action by Frank C. Hollins against the St. Paul, Minneapolis & Manitoba Railroad Company and others.</p>

An action by Philip H. Lehnen against Alfred J. Purvis and another.

An action by Hiram Gilmore against the City of Utica, William F. Hoerlein, its treasurer, and the Warren Scharf Asphalt Paving Company.

Arbitration between Michael Bennett and the Union Elevated Bail road Company. Judgment was entered on the award of the arbitrators in favor of Bennett, and the company appeal.

Action by J. Frederic Andrews against the Day Button Company to restrain it from removing an engine from a factory it had leased of plaintiff. There was judgment for defendant, from which plaintiff appeals.

<p>Case submitted on an agreed statement.</p> <p>This was a controversy between James H. Hickey and Doris Peterson.</p>

Submission on agreed statement. Action by Martin Clark against William H. Locke. The cause was submitted without action on an agreed statement of facts, as provided by Code Civil Proc. BT. Y. § 1279.

<p>Appeal from circuit court, New York county.</p> <p>- Action by Ann Mallach against Edward A. Ridley and others for false imprisonment. After plaintiff had left defendants’ store, where she had purchased some articles, a policeman requested her to return to the store, which she did. The policeman was sent after plaintiff by defendants’ floor-walker, who accused her of shop-lifting. Defendants had nothing to do with the transaction personally, and they contended that they were not liable, inasmuch as the floor-walker was not authorized to have a person arrested on-suspicion, as was done in this case. There was a verdict for plaintiff for $250, and from the judgment entered thereon defendants appeal. For former reports, see 36 Hun, 643, mem.; Id. 645, mem.; 43 Hun, 336; Id. 640, mem.</p>

<p>Motion for leave to appeal to the court of appeals.</p>

<p>Assumpsit—Goods Sold—Implied Promise.</p> <p>Where goods are sold and delivered without a price being agreed on, there is an implied agreement to pay the reasonable or market price for such goods.</p>

The report of the referee upon the settlement of the accounts of Abner Mellen, Jr., and another, as executors of Abner Mellen, deceased, was confirmed, and Abner Mellen, Jr., appeals.

Action by Sarah Frances Blake against Alfred C. Barnes and others, individually, and as executors, etc., of Alfred S. Barnes, deceased. From an order denying their motion to require plaintiff to make the complaint more definite and certain, by separately numbering and stating each alleged cause of action, defendants appeal.

Action by Chauncey St. John against Howard W. Coates and Benjamin C. Wetmore, executors, etc., of George H. Peck, deceased. Plaintiff moves to reform the issues framed and sent on for trial by a jury. For appeal from the order at circuit striking out some of the issues, see ante, 202.

Action by Claudius Shattuck and Lewis Shattuck, by their guardian ad litem, against George Bascom, in the nature of an action of replevin in the cejo#, to recover a quantity of hemlock bark which the defendant cut and removed from the lands, the title of which was in controversy in this suit.

An indictment against Alfred M. Crotty charged in three counts (1) that ■defendant, under promise of marriage, seduced a certain woman at Water-town, in Jefferson county; (2) that at Oswego, in Oswego county, defendant promised to marry said woman, and that, under such promise of marriage, defendant had intercourse with her, and seduced her, at Watertown; and (3) that defendant enticed and inveigled said woman to go with him from Oswego to Watertown for the purpose of…

Action by Otto Schmidt against the Steinway & Hunter’s Point Bailroad Company for personal injuries. The complaint was dismissed, and plaintiff appeals. For opinion of Mr. Justice Pbatt, and statement of facts, see 8 H. Y. Supp. 664.

<p>Reargument of appeal from order denying to appellant the fees of a referee on the reference of a claim against the executor. Por former report, see 6 N. Y. Supp. 254.</p>

Action by the Manhattan Electric Light Company against Hugh J. Grant, mayor of New York city, Jacob Hess, and Theodore Moss, constituting the board of electrical control, and the Consolidated Telegraph & Electrical Subway Company, to restrain the execution of a proposed contract between the board of control and the subway company. Plaintiff obtained a preliminary injunction, which was subsequently dissolved, and it appeals.

Action by Charles Dattelbaum for the dissolution of a partnership existing between him and defendants, William Blume, Frank Rottenberg, and Henry Wunderlich. Defendant Blume appeals from the final judgment, and also from the interlocutory judgment entered in the action.

<p>Appeal from special term, Onondaga county.</p> <p>Action by James M. Tator against Charlotte M. Tator and others.</p>

<p>Application to vacate judgment against John Stock, principal, and Thomas Cunningham, surety, on forfeited recognizance.</p>

<p>Motion for reargument.</p>

<p>Motion for leave to appeal to the court of appeals. See ante, 482.</p>

<p>Appeal from,trial term.</p> <p>Action by Samuel G-. Brown and Emil Ney and Theresa Stiefel to recover $3,500, as damages for the defendants’ breach of their contract, by which they agreed to hire him as traveling salesman.</p>