Volume 90 — New York Appellate Division Reports

Appeal by the plaintiff, Eva A. Thomas, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 17th day of November, 1903, denying the plaintiff’s motion for the appointment of a receiver pending the above-entitled action brought to foreclose a mortgage.

<p>Appeal by the defendants, Dudley S. Harde and another, from' so much of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of. the clerk of the county of New York on the 11th day of December, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, as awards the plaintiff interest upon the amount of its recovery.</p>

Appeal by the relator, J. Metcalfe Thomas, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of June, 1903, dismissing a writ of certiorari theretofore-issued herein to review an assessment upon the personal property of the relator for the year 1901.

, Appeal by John B. Simpson, Jr., and. another, as executors, etc., of William Simpson, deceased, from so. much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of February, 1902, confirming the report of commissioners of estimate and assessment in this proceeding, as confirms an assessment for benefits.

Appeal by the plaintiff, E. Morgan Griffin, as trustee for Virginia W. Blanchard, from a judgment of the Supreme ■ Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of April, 1903, upon the decision the court rendered after a trial at the New York Trial Term, a jury having been waived. • . ■

<p>Appeal by the plaintiff, Ella M. Bennett, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 30th day of April, 1903, upon the dismissal of the complaint bv direction of the court after a trial at the New York Trial Term, and also from an order made on the 27th day of March, 1903, denying the plaintiff’s motion for a hew trial made upon the minutes.</p>

<p>Appeal by the plaintiff, James Hagan, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office'of the clerk of the county of New York on the 8th day of July, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, directing that the plaintiff specifically perform a certain contract for the purchase of- real property.</p>

<p>Appeal by the defendant, the United States Mortgage and Trust Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of November, 1903, vacating an order requiring the plaintiff to give security for costs.</p>

<p>tt levaied viaduct for street purposes over a street of which the fee is in the city the damage to an abutting owner is damnum absque injuria. .</p> <p>An owner of property abutting on One Hundred and Fifty-fifth street in the borough of Manhattan, city of Hew York, the fee of which street is held: by the city in trust for highway purposes, is not entitled, in the absence of any statutory provision therefor, to any legal or equitable relief on account of the construction by the public authorities of the city of Hew York, pursuant to chapter 576 of the Laws of 1887, of the elevated viaduct above and upon One Hundred and Fifty-fifth street, which viaduct was built to facilitate public travel and is used exclusively for ordinary street uses .and purposes.</p> <p>The damage suffered by the abutting owner by reason of the construction of the viaduct is damnum absque injuria.</p>

Appeal by the plaintiff, Delima Tramblay, from a judgment of the Supreme Court in favor of the defendant,, entered' by the office of the clerk of the county of Yew York on the 20th day of June, .1903, upon the decision of the court, rendered after a trial before the court without a jury at the Yew York Trial Term, dismissing the plaintiff’s complaint upon the merits.

<p> The Statute of Limitations applicable to an action for dower—absence from the State of the parties against whom it is brought does not stop the running of the statute. </p> <p>Section 1596 of the Code of Civil Procedure, which provides that an action to recover dower must be commenced by the widow within twenty years after the death of her husband, unless, at the time of the death of her husband, she is a minor, insane or imprisoned, or unless the right of dower has been recognized by a writing under seal, or has been adjudged by a decree of the court, and that in each of such cases .the time of such disability and the time subsequent to the husband’s death and previous to the recognition of adjudication! of the claim of dower, shall be .excluded from consideration, affords an exclusive Statute of Limitations in actions for dower,, and section 401 of the Code of ' Civil Procedure, which provides that where, at the time a cause of action. . accrues against a person he is without the State, the action may be commenced. - within the time limited.after-he returns ,to the. State, and .that if, .after a cause of action accrues against a person, he departs from the State and remains continuously absent therefrom for one year or more, the time of such absence is-not a part of the time limited for the commencement, of the action,’does not apply to actions for dower.</p> <p>Yan Brunt, P. J., dissented upon another ground.</p>

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of May, 1903, upon the verdict of a jury for $1,612.26, and also from an order entered in said clerk’s office on the 9th day of June, 1903, denying the' defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Alfred Childs, from a judgment of the Court of General Sessions of the Peace in and for the city a,nd county of Hew York in favor of the plaintiff, entered in the office of the clerk of said court on the 29th day of Hay, 1902, convicting the defendant of the crime of murder in the second degree, and also from an order entered in said clerk’s office denying the defendant’s motion for a hew trial made upon the minutes.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the. office of the clerk of the county of New York on the 27th day of March, 1902, upon the verdict of a jury for $971, and also from an order entered in said clerk’s office on the 11th day of April, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, John J. H. Poillon and another, from a judgment of the Supreme Court in favor'of the plaintiff, entered in the office of the clerk of the county of New York on the 15th day of May, 1903, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, George Steinson, from a judgment of thp Supreme Court in favor of the plaintiff, entered in the office of . the clerk of the county of New York on the 13th day of June, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Appeal by the defendant, Domingo M. Monjo, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 4th day of September, 1903, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling said defendant’s demurrer to the plaintiffs’ complaint.</p>

Appeal by the defendant, Julia Roth, from so much of an interlocutory judgment of the Supreme Court in favor of the -plaintiff, entered in the office of the cleric of the county, of Hew York on the 10th day of December, 1902, upon the verdict of a jury, as adjudges that the. plaintiff is entitled to a judgment of divorce, and that alimony shall cease from the date of the entry of such interlocutory judgment, and also from an order entered in said clerk’s office on the 10th…

<p>Coupons detached from a mortgage bond— when they are collectible from a company which has received the assets and, paid other coupons of the company issuing the• bonds — competency and effect of sworn statements in an original answer where an-amended complaint and an amended answer have been served in the action — competency of an attorney's letter advising their payment.</p> <p>In an action brought to recover upon interest coupons, which had been detached from mortgage bonds issued by the East River Electric Light Company, it-appeared that in 1892 the name of the East River Electric Light Company was-changed to the Thomson-Houston Electric Light Company and that its assets-were sold upon a mortgage foreclosure in December, 1894, and were subsequently purchased by the Madison Square Light Company which had been, organized in December, 1894, pursuant to an agreement or plan dated December 25, 1894. In August, 1896, the Madison Square Light Company was consolidated With the Manhattan Electric Light Company.</p> <p>The action was brought against the East River Electric Light Company and the-Manhattan Electric Light Company. The latter company interposed an answer in. which it admitted that it was the successor of the East River Electric Light-Company and that it acquired the franchise and properties of the - latter subject to the mortgage and the payment by it of the bonds and coupons; that as; the successor of the East River Electric Light"Company it Was, and had been,. at all times ready and willing to pay the principal of the coupons, but was not willing to pay the interest on such coupons.</p> <p>After this answer had been interposed the Manhattan Electric Light Company became merged in the Edison Electric Illuminating Company. An amended complaint was then served, to which the Edison Electric Illuminating Company served an answer on behalf of the Manhattan Electric Light Company, alleging that the coupons were void; that while the bonds were in the possession of the Bast River Electric Light Company the coupons became due and were detached, if at all, prior to the time when the bonds were sold or negotiated by it; that the plaintiff was not an owner or holder for value before maturity.</p> <p>'The plaintiff, in support of his case, offered in evidence the answer originally interposed by the- Manhattan Electric Light Company, also a letter delivered to a representative of the plaintiff by the attorney for the Manhattan Electric Light Company, which read as follows:</p> <p>“ The bearer Mr. Baltes has five coupons of the East River.Electric Light 'Company’s bonds which seem to be all right. We advise that they be paid if there is no record that like numbers have already been paid.”</p> <p>Tt further appeared that the Manhattan Electric Light Company had paid coupons detached from the bonds of the East River Electric Light Company to the time of the commencement of this action, other than the five in suit.</p> <p>Held, that the plaintiff had established a prima facie case by the following facts :</p> <p>' Mi'Sft, the sworn admission in the original answer of the Manhattan Electric Light Company .that it did assume the payment ,of the bonds and coupons issued by the East River Electric Light Company; second, the sworn' declaration contained in the original answer of the Manhattan Electric Light Company that it was ready to pay the principal of the coupons in suit, but simply disputed its liability for interest thereon; third, the letter of the attorney of the company advising the payment of the coupons in suit; fourth, the recognized liability of the Manhattan Electric Light Company, indicated by its payment of all the coupons 'detached from the bonds of the East River Electric Light Company to the time of the commencement of the action, with the exception of the coupons in suit.</p> <p>Ingraham and McLaughlin, JJ., dissented.</p>

Appeal by the plaintiff, Peter W. Felix, from a judgment of the Supreme ,Court in favor of the defendants Daniel C. Devlin and' others, entered in the office of the clerk of the county of New York on the 12th day of November, 1902, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint, and directing the specific performance by Mm of a contract for the purchase of real property.

<p>Guaranty by a corporation of the payment of dividends upon its stock — it cannot repudiate the guaranty as ultra vires and retain the consideration received by it therefor — right of a purchaser of such stock on the faith of such guaranty to rescind the contract of purchase—a resident of the State of New Tovk is not chargeable with knowledge of the laws of the State of Ohio.</p> <p>In 1899 James MoVity, who held a demand note for §10,000 bearing six per cent interest, which had been executed by the E. D. Albro Company, a business corporation organized under the laws of the State of Ohio, made a demand for a payment of §5,000 on account of the note. In reply thereto he received a letter dated April 22, 1899, signed “E. D. Albro Co., W. H. Justice, Prest.” offering to pay the §10,000 in cash, but stating, “we can and will pay you at once cash §5,000.00 and are willing to sell you five shares of the company’s stock at the par value of $1,000.00 per share and guarantee you on same a six per cent dividend annually. Of course we expect to pay more dividend, but we are willing to guarantee a six per cent dividend and will also agree, or Mr. McDougall and Mr. Justice will jointly agree, to buy the stock back from you, say at the end of two or three years, at the same price [per share, you having a guarantee of a six per cent dividend in thé meanwhile.”</p> <p>May 10, 1899, Mr. Justice, the president of the corporation, visited McVity and stated that if McVity would take stock in exchange for the note they would guarantee a dividend of six per cent on the stock. McVity asked if the stock would be preferred stock, to which Justice replied that it would be stock guaranteed by the Albro Company, which they had a right to do.</p> <p>McVity after some negotiations received in exchange for the $10,000 note and $1,000 cash which he advanced to the company, its note for §3,000, and eight shares of its stock with the following letter:</p> <p>“ Mr. Jas. S. McVity</p> <p>“Dear Sir.—You hold the note of The E. D. Albro Co. for §10,000.00 bearing Int. at &%. If as proposed you will buy 8 shares of The E. D. Albro Co. stock we will guarantee you a dividend on same payable quarterly and the</p> <p>' remaining §2,000,00 we can arrange as you may desire.</p> <p>“This is the arrangement proposed by Mr. McDougall, and he and Mr. Justice will agree to purchase back the stock at par within 2 to 3 years if you wish to sell, and you are guaranteed a dividend of 6# per annum in the meanwhile.</p> <p>“Yours truly,</p> <p>“ THE E. D. ALBRO CO.</p> <p>“ W. H. Justice “Brest.”</p> <p>The corporation paid six per cent dividends upon the stock and various sums upon the §3,000 note until December 31, 1901, when it notified McVity that the company was not earning any dividends and consequently could not lawfully pay any; also that it had no power to guarantee the. payment of dividends upon its-stock.</p> <p>MeVity then offered to surrender the stock and guaranty in return for the $10,000 note and to allow the dividends paid on the stock to be applied to the interest upon the note.</p> <p>The position taken, by the corporation, with respect to its -inability, under the laws of the State of Ohio, to declare dividends which it had not earned or to guarantee the payment of dividends on its stock, was correct. MeVity, however, was a resident óf the ¡State of New York and was not familiar with the laws of the State of Ohio.</p> <p>Held, that MeVity was not chargeable with knowledge of the laws of the State of Ohio;</p> <p>That he was entitled to rescind the purchase of the stock, and upon surrendering such stock to receive the $10,000 note back from the company;</p> <p>That the corporation could not repudiate its obligation of guaranty to MeVity on the ground that it was ultra vires, and at the same time retain the consideration which it had received from MeVity for entering into the obligation.</p> <p>Vast Bbtott, P. J., and Latjghlin, J., dissented.</p>

<p>Grand larceny—a conspiracy to defraud, try inducing'the victim to purchase stock under a representation that it could he sold at a higher price—declarations of the conspirators are competent against each other — order of proof—proof of a like transaction at. the same time between some of the conspirators is competent against the others on the question of intent.</p> <p>Upon the trial of an indictment for grand larceny it appeared that one Franke answered a newspaper advertisement which stated that a person having $4,000 in cash could make $12,000 inside of a week in a legitimate business transaction; that in response to Franke’s letter one Herbert called upon Franke and informed him that a certain mining corporatio'n which had struck a valuable vein of ore was anxious to purchase some of its own stock; that a certain engineer who was then sojourning in the Everett House, New York city, held 2,000 shares of the stock, and, being ignorant of the striking of the vein of ore, would sell his stock at such a price as would enable it to be resold to the mining company at a large profit.</p> <p>Franke went to the office of the mining company and met one Weller, who assumed to be the treasurer of .the company. Weller introduced Franke to one Quealey, its president. After some conversation Quealey agreed that if Franke could obtain a number oí shares of the stock of the mining company he would purchase them from Franke at §14 a share.</p> <p>The following day Franke met Herbert at the Everett bouse to visit the alleged engineer, where Herbert conducted Franke to a room in which they found the defendant lying in bed apparently ill. During the course of the conversation the defendant stated that he was an engineer and had received 2,000 shares of the stock of the mining company for services rendered to it, and was willing to sell the same for §10 a share.. Thereafter Franke paid the defendant §4,000 in cash for some 400 shares of stock in the mining company for which he received a certificate. After the purchase Herbert and Franke went to the office of the mining company. Quealey was not there and Franke became suspicious and told Herbert that he would not lose sight of him. Herbert, however, left the office upon'some pretext and did not return.</p> <p>Franke then went to the Everett House to look for the sick engineer, but found that the defendant had left the hotel, leaving word with the clerk that he was going to a hospital.</p> <p>The stock of the mining company was of little or no value. No large strike had been made, and the company was not at the time in a position to purchase any stock.</p> <p>Held, that the evidence clearly established that the defendant was guilty of grand larceny in the first degree;</p> <p>That the facts showed that Herbert, Quealey, Weller and the defendant were all concerned in the commission of the crime to obtain Franke’s money by trick and device; that each was a principal and that the admissions and declarations of Herbert, Quealey and Weller were, therefore, admissible against the defendant, although not made in the latter’s presence;</p> <p>That the error involved in admitting in evidence some of the conversations with Herbert and Quealey, before the People had proved facts sufficient to justify the inference that the defendant was an actor in the conspiracy, was cured by the subsequent introduction of evidence connecting the defendant with the conspiracy;</p> <p>That proof that, while the transaction with Franke Was taking place, Herbert, Quealey, Weller and one Clark successfully employed the same methods practiced on Franke to defraud one Effinger, who also answered the advertisement which Franke answered, was competent against the defendant, although it appeared that Clark took the part of the sick engineer and it was not shown that the defendant was connected directly with the transactioh.</p>

<p>Complaint against certain corporations and individuals, alleging misrepresentations inducing the sale of some of the stock of one of the corporations, and other misrepresentations inducing stockholders of such corporation to exchange its stock for that of the other corpoi'ations, the diversion of the proceeds of the sale of the stocks, and asking for an accounting and receiver — it does not state a cause of action — when the courts will appoint a receiver of a foreign corpoi'ation.</p> <p>The complaint in. an action brought by Frederick Phillips, suing on behalf of himself and of all stockholders of the Sonora Copper Company, against the Sonora Copper Company, the Puerteeito Copper Company and the Empire Consolidated Quicksilver Mining Company, all foreign corporations, and a number of individuals who controlled the affairs of such corporations, set forth a prospectus issued by the Sonora Copper Company, inviting subscriptions to the treasury stock of the company, together with a statement issued by the Sonora Copper Company, and alleged that certain statements in the prospectus and statement were not true; that they were issued pursuant to some fraudulent scheme for the purposé of promoting sales of the stock of the Sonora Copper Company; that, as a result of the issuance and circulation of the prospectus and of their personal efforts hy solicitation and correspondence and of statements with regard to the properties of the Sonora Copper Company, the individual defendants succeeded in selling a large amount of the stock of said company to various persons. It was not alleged that the plaintiff purchased any stock in reliance upon the prospectus or upon the statements made by the company or by the individual defendants.</p> <p>The complaint further alleged that the Sonora Copper Company is not now engaged in business, and “that, if the said Company now has any assets or claims of any sort of any value, there is grave reason to apprehend that said assets and claims will be dissipated and lost unless cared for by some persons other than the defendants; ” that the individual defendants had, by certain false and fraudulent representations, succeeded in inducing certain stockholders of the Sonora Copper Company to exchange their stock for stock of the Puertecito Copper Company and of the Empire Consolidated Quicksilver Mining Company and were now engaged in persuading other stockholders of the Sonora Copper Company to do so; that all these wrong and fraudulent-acts had been done in pursuance of some conspiracy to defraud the stockholders of the Sonora Copper Company. It was not alleged that any of these false and fraudulent statements had deceived the plaintiff,' or had caused him any injury or had affected the value of hiá stock.</p> <p>The complaint further alleged that large sums of money were obtained by the individual defendants from the sale of the stock of the Sonora Copper Company; that such money had been diverted from the use of the Sonora Copper Company and had been delivered to the other defendant corporations, and that all of the assets of the Sonora Copper Company were in the possession of the other defendants without right or authority. It was not alleged that the stock so sold was the stock of the Sonora Copper Company or that the defendants had misappropriated or misapplied any of the money or property of the Sonora Copper Company, or that that corporation ever owned or sold a share of its own stock or ever had any property of any kind.</p> <p>The complaint further alleged that the individual defendants were not fit persons to have charge of the affairs of the defendant corporations and that they ought to account to the Sonora Copper Company for all assets of said company which have been turned over to them, as alleged or otherwise.</p> <p>The relief demanded was that a receiver be appointed for the defendant, the Sonora Copper Company; that the individual defendants account to such receiver for the sums- of money obtained by them from the sale of the stock of the Sonora Copper Company; that the defendant corporations, other than the Sonora Copper Company, pay to such receiver the sums received by the individual defendants from the sale of the stock of the Sonora Copper Company to -the extent that such defendant corporations have received such money from the individual defendants, and that the Puertecito Copper Company account to the receiver for such assets of tt^e Sonora Copper Company as it had received.</p> <p>Meld, that the complaint did not state facts entitling the plaintiff to any relief.</p> <p>While .the courts of the State of Sew York will, under certain circumstances, appoint a receiver of a foreign corporation when necessary for the protection of the stockholders or creditors of the corporation, they will not appoint a receiver of a foreign corporation simply because of general allegations of misconduct on the part of the directors or officers thereof.</p>

Appeal by the plaintiffs, Emanuel Steinhardt and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 19th day of June, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Evidence — entries from memoi'anda, made at the stock exchange, as to the purchase and, sale of stocks —1when competent.</p> <p>In an action brought by a stockbroker to recover a balance of account, alleged to be due from a customer on account of the sale and repurchase of certain stocks for the customer, the only question was as to the prices at which the stocks had been sold and were subsequently repurchased.</p> <p>It appeared that the sales and purchases were made by the plaintiff himself on the floor of the stock exchange. The plaintiff was unable to remember the exact prices, but testified that at the time of the several transactions he made a memorandum correctly stating the terms thereof; that he handed this memorandum to his clerk upon the floor of the stock exchange to be telephoned by the clerk to the plaintiff’s office and there entered upon his books.</p> <p>The clerk who received the memoranda from the plaintiff, testified that in each instance he correctly transmitted the contents thereof over the telephone to a clerk in the plaintiffs office; that the original memoranda were subsequently compared with the entries in the books and that in all cases the entries were correct.</p> <p>The clerk in the plaintiff’s office testified that he received the contents of the memoranda from the stock exchange; that he made entries in the books in accordance with the messages received; that he subsequently, in each case, saw the memoranda made by the plaintiff and compared them with the entries in the books, and that they were correct; that the memoranda were subsesequently destroyed.</p> <p>Held, that the entries thus made in the plaintiffs books were competent evidence of the transactions which they represented, not merely as entries in the books, but as an extension of the testimony of the witness who made the memoranda from which these entries were made and who testified to their correctness.</p> <p>Declarations or statements of a party are not ordinarily admissible as evidence on behalf of such party. Where, however, a party at the time of the transaction, in the ordinary course of his business, makes an entry or memorandum of a fact and he is able to testify that he made that entry at the time, and that it was a correct statement of that fact, but that in consequence of the lapse of time he is unable to testify from independent recollection to the details shown by such an entry, the entry itself is admissible as an extension of the witness testimony, its correctness having, been proved.</p>

<p>Insurance policy—an imperfect assignment thereof by a wife entitled to the amount thereof in case she survives her husband — action to compel her and her husband to execute papers, necessary to make suclt, assignment effective — consideration sufficient to support the assignment.</p> <p>Edward Hatch, employed one Rathborne, a stockbroker, to sell a quantity of stock for him, stating that if the stock increased in price he would furnish it to Rathborne for delivery. Rathborne sold the stock and obtained it from a third person for delivery to the purchaser. The stock advanced in price, but Hatch, although requested to deliver it to Rathborne, failed to do so. The latter then had an interview with Hatch’s wife, who requested Rathborne ‘ ‘ not to do anything until her husband got well, that he was ill in bed. She said she would send this insurance policy as collateral, as it were, to the account. She said she would assign it, and she said that whether Mr. Hatch lived or died, the account would be paid.” Subsequently Rathborne received a letter, written by a third party, inclosing the policy of insurance and. the following instrument:.</p> <p>‘.‘I hereby .agree to. collect and pay over to Mr, C. L. Rathborne, Policy No, 358374 in the North Western Mutual Life Insurance Co. drawn in my favor.</p> <p>“JESSIE BOYD HATCH.” '</p> <p>Rathborne accepted the policy and the accompanying instrument and retained it. Subsequently, Hatch having failed to deliver the stock in pursuance of his agreement, Rathborne was obliged tc buy the stock for Hatch’s account, leaving a balance due from Hatch which he neglected to pay.</p> <p>Rathborne then demanded payment by the insurance company of the cash surrender value of the. policy,. but the insurance company refused to comply with this demand because of the informality of the assignment thereof. Rathborne thereupon brought an action to compel Hatch and his wife to assign to him all their interest in the policy, and to execute such further instruments of assignment, and conveyance as would enable him to collect the cash surrender value thereof.</p> <p>The policy provided that the insurance company would pay “ unto Jessie B. Hatch, beneficiary wife of Edward Hatch the insured, of New York, ' *’ * * Ten thousand dollars, in sixty days after due proof of the fact and cause of the death of said insured during the continuance of this policy; * * * provided, however, that ii no beneficiary shall survive the said insured, then such payment shall be made to the executors, administrators or assigns of the said insured.’-</p> <p>It did. not appear that' Hatch either" knew of, óf consentéd to', the transfer "Of the policy of insurance to the plaintiff.</p> <p>Seid, that the, complaint, was properly dismissed; . ....</p> <p>That while Mrs. Hatch might properly agree when any money became payable to -her under the policy to receive and hold it for the plaintiff, she could not 1 absolutely assign the policy, as her interest therein depended upon her surviving her husband.</p> <p>Semble, that the agreement made by Mrs. Hatch with the plaintiff was supported by a sufficient consideration.</p>

<p>Appeal by the defendant, The Consolidated Gas Company of New York, from a judgment of the Supreme Court in'favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of June, 1903, upon the verdict of a jury for $650, and also from an order entered in said clerk’s office oh the 8tli day of June, 1903, denying the defendant’s motion for a new - trial made upon the minutes.</p>

Appeal by the defendants, The City of Hew York and another, from a judgment of the Supreme Coin-t in favor of the plaintiff, entered in the office of the clerk-of the county of Hew York on the 29th day of June, 1903, upon the decision of the court rendered after a trial at the Hew York Special Term.

<p>Oral contract to ma/rry is valid—an oral contract in consideration thereof is not — specific performance — marriage a good consideration — when property given by a husband, to his wife will be considered to be in consideration of marriage and not of a promise to marry — consideration which will sustain a promissory note of a third person given by a. husband to his wife — recital therein for value received ” — credibility of the testimony of an interested witness — Statute of Frauds not applicable to an executed contract — it must be pleaded.</p> <p>An oral promise to marry is binding, while an oral contract in consideration of marriage is void under the Statute of Frauds.</p> <p>Specific, performance of a. promise to marry will not be decreed, while specific performance of a valid contract in consideration of marriage will.</p> <p>Marriage is among the highest considerations known to the law, and the courts favor the enforcement of contracts based on that consideration.</p> <p>Where a husband, after the mutual promises to marry have been given, but before the marriage, orally agrees to give his wife certain property, the con- . sideration for such oral agreement is the marriage and not the promise to' marry; and where, subsequent to the marriage, the, husband, in performance of the promise and with relation to its consummation by marriage, gives to his wife a promissory" note executed by his brother and made payable to the wife’s order, which note the husband’s brother had delivered to the husband to enable him to perform such oral agreement, the wife may compel the husband’s brother to pay the note, even though no consideration for the note passed from the husband to his brother.</p> <p>The oral agreement having been executed, the Statute of Frauds does riot apply . thereto; in any event, it is not available to the husband’s brother in an action to enforce payment of the note unless it is pleaded in the answer.</p> <p>A recital in the note, which ran directly to the wife, that it was given for “value received,” imports a. consideration moving from the wife to the husband’s brother.</p> <p>The credibility of the testimony given by the husband’s brother on the trial of the action to enforce the note is for the jury to determine, and they may accept a portion of his testimony and reject other portions thereof.</p>

<p>Appeal by the defendant, Mortimer H. Wager, as president of the Consolidated Stock and Petroleum Exchange of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York, on the 9tli day of June, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint.</p>

Appeal by William E. Strong and others from an order of the Supreme Court, made at the New York Special Term and entered in the office' of the clerk of the county of New York on the 23d day of October, 1903, denying the appellants’ motion to compel Frank E. Randall to answer certain questions propounded to him as a witness before a commissioner.

Appeal by the defendant, John J. McGrath, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day off June, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, decreeing the specific performance of a contract for the sale of real estate.

Appeal by the plaintiff, Nathaniel T. Bacon, from an order of the Supreme Court., made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of November, 1903, modifying a judgment in favor of the plaintiff, entered in said clerk’s office on the 22d day of October 1903.

<p>Appeal by the defendants, The Universal Talking Machine Company and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 10th day of July, 19.02, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 16th day of May, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 13th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Luigi Lagroppo, from a judgment of the Court of General Sessions- of the Peace in and for the city and county of New York in favor, of the plaintiff, entered on the 20th day of February, 1903, convicting the defendant of murder in the second degree and sentencing him to imprisonment for life.

Appeal by the defendants, Henry Allen and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of April, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the lltli day of May, 1903, denying the defendants’ motion for a new trial made- upon the minutes.

Appeal by the _ defendant, Lawrence H. St. Clair, from a judgment of the Court of Special Sessions of the first division of the city of Hew York in favor of the plaintiff, entered on the 1st day of June, 1903, convicting the defendant of a violation of section 675 of the Penal Code.

Appeal by the plaintiff, The Barber Asphalt Paving Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day. of November, 1903, denying the plaintiff’s motion to continue a temporary in j unction pendente lite„

Appeal by the defendants, Fred W.- Eaton and others, from ad-judgment ofthe Supreme Court in favor of the plaintiff, entered in the-office of the clerk of the county of Herkimer on the 1st day of July, 1902, upon the report of a referee.

Appeal by the plaintiff, Willis B. Horton, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Chautauqua on the 20th day of May, 1903, upon the decisión of the court rendered after a trial before the court without a, jury at the Chautauqua Trial Term, adjudging that the plaintiff recover a certain sum deposited in court by the defendant before the commencement of the action, with interest, and awarding costs to the defendant.

Appeal by Martha A. Smith and others from an order of the Supreme Court, made at the Onondaga Special Term and entered in the office of the clerk of the county of Lewis on the llth day of August, 1903, appointing commissioners to assess damages to riparian owners on Deer river.

• Motion by the defendant, The Royal Trust Company of Chicago, for a new trial upon a case containing exceptions, ordered to be heard at the Appellate Division in the first instance, upon the verdict of a jury in favor of the plaintiff rendered after a trial at the Monroe Trial Term.

Appeal by the defendants, the Crosstown Street Railway Company of -. Buffalo and others, from a judgment of the Supreme Court in. favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of October, 1902, upon the decision of. the court rendered after a trial at the Erie- Trial Term, a jury having been waived.

<p> Sale on credit—the time runs from the delivery of the goods—when the question of acceptance is one for the jury—oral evidence held to be incompetent where it varied, a'written contract. </p> <p>Where an order for goods to be subsequently delivered provides that the vendee shall be given four months’ credit, the term of credit dates from the delivery of the goods and not from the giving of the order.</p> <p>Where it appears that the goods ordered consisted of a new and expensive brand of whisky which the agent of the vendor, who obtained the order, desired to introduce among the vendee’s customers; that the sale was accompanied by a representation that the goods were of a superior quality; that the goods were not delivered until September, 1899; that the vendor’s agent who visited the village in which the vendee did business about once in two months did not see the vendee on his first visit after the sale and that on his second visit, which was in December, the vendee notified him that the goods were not as they had been represented to be, it cannot be said, as a matter of law, that the retention of the goods by the vendee amounted to an unqualified acceptance thereof, but the question is one of fact for the jury.</p> <p>Semble, that if the four months’ term of credit had expired before the vendee notified the vendor of his refusal to accept the goods, he would, as a matter of law, be deemed guilty of an unreasonable delay in exercising his right to test the quality of the goods.</p> <p>Where the written order for the goods is unqualified, evidence of a verbal agreement between the parties, whereby the vendee was to be liable to pay for only that portion of the goods which he should succeed in selling to his customers, tends to vary the terms of the contract arid is inadmissible in an action brought by the vendor to recover the purchase price of the whisky.</p>

<p>Appeal by the plaintiff, Patrick Oonnors, as administrator, etc., •of William Oonnors, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk •of the county of Erie on the 6th day of December, 1902, upon the •dismissal of the complaint by direction of the court after a trial at the Erie Trial Term.</p>

<p>Appeal by the defendant, The Town of Chautauqua, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 28th day of October, 1902, upon the verdict of a jury for $4,500, and also from an order bearing date the 21st day of October, 1902, and entered in said clerk’s office, denying the defendant’s motion for a. new trial made upon the minutes.</p>

<p>Appeal by Mary E. Cunningham and others from a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 24th day of February, 1903, finally settling the accounts of Anna M. C. Wilkin, as trustee under the last will and testament of James Cunningham, deceased.</p>

<p>Claim against a town — money due under an agreement for tlw support of a pauper ' child—the remedy is not by action — the claim should be presented for audit.</p> <p>An individual cannot maintain an action against a town to recover moneys ' tileged'to be due to him under an agreement with the .tcwn board for the, support of a pauper child which was a charge upon the town, as such claim is a town charge, and, under the provisions of section 180 of the Town Law (Laws of 1890, chap. 569), the exclusive remedy of the claimant is to present the claim to-the town board for audit and to review their action by mandamus or . certiorari.</p>

<p>Village of Canandaigua—issue by, of bonds for street paving purposes — what proceedings must be taken to authorize it.</p> <p>The village of Canandaigua, which is incorporated under a special act (Laws of 1893, chap. 666), has power, under sections 128 and 340 of the Village Law (Laws of 1897, chap. 414, as amd. by Laws of 1903, chap. 617), to issue bonds for street paving purposes.</p> <p>Section 4 of title 7 and section 27 of title 9 of the charter of the village are not inconsistent with the existence of the power to issue bonds for such purposes.</p> <p>Semble, that the proceedings for the submission to the taxpayers of the ' village of the proposition to issue the bonds must be taken under sections 55, 59 and 60 of the Village Law, construed in connection with section 5 of the General Municipal Law, and not under sections 3 and 3 of title 7 of the charter of the village.</p> <p>Where, however, the village,_ in attempting to secure authority to issue the bonds, proceeds under sections 3 and 3 of title 7 of the charter, but does not comply with the provision of section 3 of such title which provides, “ Before any tax for a special purpose can be levied, a resolution specifying thezpurpose, and the amount required, and whether it shall be raised in one sum or in annual installments and, if in annual installments, the number thereof, and Ihe amount of each, shall be passed by the board of trustees,” nor comply with section 5 of the General Municipal Law which provides that where a funded debt is contracted by a municipal corporation, the resolution proposing it “ shall provide" for raising annually by tax a sum sufficient to pay the interest and the principal as the same shall become due,” the procedings are fatally defective.</p> <p>A statement in the resolution providing for the issue of bonds, “That a sum sufficient to pay the interest and principal of said bonds, as the same shall become due, be raised by an annual tax, as other taxes for general purposes in said Village are raised,” is not a sufficient compliance with section 5 of the General Municipal Law.</p> <p>Semble, that the resolution should state the installments in which the bonds were to be made payable and which were to be met every.year.</p>

<p>Negligence — liability of a town for injury resulting from a horse being frightened by a stick of wood falling from a wood pile on the edge of a highway.</p> <p>Assuming that a pile of ordinary stove wood, two feet high and from seven to ten feet in diameter, lying from seven to ten or eleven feet from the edge of a little traveled country highway,' is calculated to frighten horses driven along the highway, and that the pile of wood has remained there long enough to charge the commissioner of highways with knowledge of its presence, the town is not liable for damages sustained by a person driving along the highway whose horse runs away in consequence of being frightened, not by the general aspect of the wood pile, but by the sudden and unexplained falling of a stick therefrom.</p>

<p>Seduction — claimed to have been accomplished by putting the victim in a hypnotic condition — proof should be given showing that it is possible to create such a condition.</p> <p>Upon the trial of an action for the seduction of the plaintiff's daughter, who was delivered of a fully-developed child in August, 1901, the only evidence tending to show that the defendant had had improper relations with the plaintiff’s daughter was given by the daughter herself. She .testified that the improper relations commenced October 30, 1900, and continued until January 1, 1901; that all the improper acts occurred in,her father’s house in a room which was separated by an ordinary door from a room in which her mother or father usually sat. In speaking of the first of these occasions she testified that the defendant made an improper proposal to her which she indignantly rejected; that they then sat and talked a few minutes, after which the defendant forcibly took her and placed her upon a couch and accomplished his purpose; that she resisted and struggled, but did nothing to attract the attention of her parents, one or both of whom were in the adjoining room.</p> <p>The defendant denied his guilt, and gave testimony tending to show that he was at other places on some of the occasions when the .plaintiff claimed that he was with his daughter. The defendant also testified that although he lived near the plaintiff no suggestion that he was responsible for the condition of plaintiff’s daughter was made until many weeks after the birth of the child.</p> <p>The plaintiff’s daughter, when under examination by the defendant’s attorney, testified that she was entirely unconscious of defendant’s various acts of relation with her at the various times when the same were occurring; that she did not know and was unaware that they had occurred during the entire term of her pregnancy and down to a period of several weeks after the birth of her child; that upon the first occasion of improper conduct she simply realized and understood what was taking place up to the time the defendant placed her upon the couch; that in October, 1901, she Was visited by the plaintiff’s attorney, and as the result of What then occurred her mind was so influenced and awakened that it grasped a recollection or consciousness of defendant’s acts with her in the fall of 1900, so that from that time on down to and including the trial she had a present knowledge and recollection that the defendant had committed with her acts resulting in her seduction and childbirth.</p> <p>It also appeared upon the trial that during the period in 1900 under review the complainant had made entries in a diary which mentioned the defendant and contained references which were assumed to relate to and be based upon his visits to her and various results flowing therefrom. Subsequently she had no consciousness of having made these entries, but upon the occasion of the visit of the attorney aforesaid, and without knowing it, she procured the diary and gave to him various of these entries. After this visit she also became aware of having made the entries in the diary at the times of the various occurrences therein referred to.</p> <p>The plaintiff's daughter testified that defendant hypnotized her and so made her unconscious of his unlawful acts with her at the time they were occurring, and that this Condition of unconsciousness thereof continued until the plaintiff's attorney visited her, nearly a year afterwards, and again placed her in a hypnotic condition, through and by means of which her consciousness was so restored that it seized hold of events of which she had theretofore been unconscious.</p> <p>Held, that the explanation given in behalf of the plaintiff’s case was opposed to ordinary experience and knowledge;</p> <p>That if the plaintiff relied upon some science and theory hot generally known or understood, he should have introduced competent evidence tending to sustain the probability or possibility of the existence of what he claimed;</p> <p>That, as he had not done this, the evidence that the plaintiff’s daughter had been in a hypnotic condition at certain times in the year 1900 whereby she was made unconscious, and again in 1901 whereby she was made conscious, of certain events, should be rejected;</p> <p>That, with this evidence out of the case, there was not sufficient evidence left therein to sustain a verdict in favor of the plaintiff.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 27th day of April, 1903, upon the verdict of a jury for $733, and also from an order entered in said clerk’s office on the 11th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Minneapolis Trust Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 31st day of May, 1902, upon the report of a referee, with notice of an intention to bring up for review upon such appeal an order entered in .said clerk’s office on the 27th day of Marclv 1902, awarding an extra allowance of costs, and also an order entered in said clerk’s office on the…

Appeal by the defendant, the Hopper-Morgan Company, from a. judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk offthe county.of Jefferson on the 17th day of January, 1903, upon the verdict of a jury for $1,068, and also from an order entered in said clerk’s office on the 19th day of January,, 1903, denying the defendant’s motion for a. new trial made upon the minutes.

Cross-appeals by Nathan L. Miller as Comptroller of the State of New York, and by Ida F. Lovelace and another, as admiiiistrators, etc., of Charles W. Mather, deceased, from an order of the Surrogate’s Court of the county of Oneida, entered in said Surrogate’s Court on the 28th day of September, 1903, modifying in some respects and refusing to modify in other respects an order theretofore entered in said court adjusting the transfer tax upon the estate of Joshua Mather,…

Appeal by the defendant, the Keystone Gas Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 21st day of May, 1903, upon the verdict of a jury for $150, and also from an order bearing date the 18th day of February, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiffs, Edward L. Biker and others, for a new trial upon a case containing exceptions ordered to be heard at the Appellate Division in the first instance upon the dismissal of the complaint by direction of the court after a trial at the Wayne Trial Term.

<p>Appeal by the defendants, The City of Oswego and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 2d day of January, 1903,. upon the decision of the court, rendered after a trial at the Oswego Special Term, vacating and setting aside certain assessments.</p>

Motion by the respondent, Lulu R. Carter, for an order granting judgment absolute after the coming down of the remittitur from the Court of Appeals, which did not direct judgment absolute for the respondent.

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Oourt in favor of the defendants, entered m the office of the clerk of the county of Erie on the 16th day of December, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the complaint upon the merits.

<p>Appeal by the defendant, The German Insurance Company, from ;a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 6th day of April, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 6th day of April, 1903,. denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, the Harvard Brewing Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe oh the 4th day of September, 1903, upon the decision of the court, rendered after a trial at the Monroe Trial Term, a jury having been waived.

Appeal by the plaintiff, The People of the State of New York, from so much of' a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Lewis on the' 23d day of April, 1903, as was entered upon the dismissal of the complaint by direction of the court as to the defendant Snyder, after a trial at the Lewis County Trial Term, and also from so much of an order entered in said clerk’s office on the 27th day of April, 1903, as…

Appeal by the plaintiffs, John Gowans and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 27th day of April, 1903, directing the plaintiffs to make the amended complaint more definite and certain, striking out certain parts thereof, and requiring them to elect upon, which cause of action they will proceed.

Appeal by Charles D. Miner and others, third parties, from so ranch of an order of the Supreme Court, made at the Livingston Special Term, bearing date the 7th day of November, 1903, and entered in the office of the clerk of the county of Livingston, as requires, as a condition of allowing them to intervene and become parties to this action, that they appear and defend the action through the same attorney retained and employed by the defendant Hendrick.

Appeal by the plaintiff, Matthew O’Cennor, from a judgment of the County Court of Niagara county in favor of the defendants, entered in the: office of the clerk of the county of Niagara on the 31st day of August, 1903, upon the dismissal of the complaint by direction of the court after a trial at a Trial Term of said court, and also from an order, bearing date the 2d day of June, 1903, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made…

<p>Payment — the application on a note of money received under a judgment in a creditor's action, the balance being paid by, and the note surrendered to, the ineUrrsers — liability of the indorsers where the judgment in the creditors action is reversed on appeal and restitution is ordered.</p> <p>The Eureka Chemical Company executed its promissory note for $2,800 payable to the order of six specified persons. The note was indorsed by all of the payees and transferred to the Jefferson County National Bank. The note not being paid at maturity the bank brought an action against the- chemical company thereon, and procured a judgment.</p> <p>Subsequently the bank, without any request on the part of the indorsers, brought a creditor’s action against one Townley and others to set aside, on the ground that they were fraudulent as to it, certain judgments which were apparently liens upon the property of the chemical company. The bank recovered judgment in said action at the Trial Term, and the property of the chemical company was sold thereunder and the proceeds of the sale were indorsed upon the note.</p> <p>Thereafter the bank demanded of the'indorsers on the note the payment of the balance due thereon, which demand was acceded to and the note surrendered by the bank. The payments thus made by the indorsers were made with'the intent and purpose of discharging the debt and the note was voluntarily surrendered by the bank with full knowledge of the facts and without any fraud or mistake.</p> <p>Subsequently the Appellate Division affirmed the -judgment recovered by the bank in the Townley action, but thereafter it was reversed by the Court of Appeals and an order of restitution was entered, pursuant tó which the bank repaid to the sheriff the sum received from the sale of the property of the chemical company. A retrial of the Townley action resulted in the complaint being dismissed, with costs.</p> <p>The bank subsequently brought an action against the indorsers on the note to recover the sum repaid to the sheriff and the costs paid by the bank in the Townley action.</p> <p>Held, that the bank was not entitled to recover.</p> <p>Williams, J., dissented.</p>

Appeal by the defendants, Eli M. Upton and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 29th day of December, 1902, upon the decision of the court rendered after a trial at the Monroe Trial Term, made after the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of December, 1902,. denying the said defendants’…

Appeal by the defendant, The Badenser Understuetzungs Verein von Rochester, Mew York, from a judgment of the County Court ■of Monroe county, entered in the office of the clerk of the county ■of Monroe on the 11th day of April, 1903, upon the decision of the court, affirming a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff.

Appeal by the defendants, Edward P. Smith and others, from a judgment of the Supreme Court in favor of the plaintiff entered in the office of the clerk of the county of Oneida On the 4th day of August, 1903, upon the report of a referee. The action was brought to vacate a judgment and to recover damages. It resulted in a judgment against all the defendants for twenty-one dollars damages and for costs.

<p>Mortgage — satisfaction thereof prior to the assignment of a second mm'tgage on the ■same property — the ten years’ Statute of Limitations is a defense to an action by ■the first mortgagee to be relieved from the satisfaction piece on the ground, of mistake— it is available to the assignee of the second mortgage.</p> <p>-April 1, 1861, Jerome Rowe executed a mortgage to one Holmes covering two separate parcels of land, one containing twenty-seven acres and the other containing fifty acres. May 1,1861, he executed a mortgage to one Hanmer. covering the fifty-acre parcel. The mortgages were recorded in the order in which 'they had been executed.</p> <p>April 1, 1887, the Holmes mortgage was assigned to one Perry.. December 23, 1887, Perry executed a satisfaction of said mortgage, and the satisfaction piece was recorded January 4, 1888. / June 27, 1894, George R. Williams purchased the mortgage given to Hanmer.</p> <p>3a 1900 Williams brought an action to foreclose the mortgage given to Hanmer and procured a judgment of foreclosure and sale. May 19; 1900, he purchased the premises at the foreclosure sale. On May 18, 1900, Perry commenced an taction to foreclose the mortgage given to Holmes, claiming that, in executing ifche Satisfaction piece of the Holmes mortgage, she had only intended to release «from the lien thereof the twenty-seven-acre parcel, and she asked that such «discharge be reformed so as to conform to her real purpose and intent, and sthat said mortgage be adjudged to be a lien on the fifty-acre parcel prior to ¡the mortgage foreclosed by Williams.</p> <p>Upon the tidal of the action the plaintiff contended that Williams purchased the mortgage given to Hanmer with notice that the plaintiff claimed a prior mortgage lien upon the fifty-acre parcel.</p> <p>Held, that a judgment in favor of "the plaintiff should he reversed;</p> <p>That "the plaintiff’s cause of action being based entirely upon her own mistake and there being no charge of fraud was barfed by the ten-year Statute of Limitations contained in section 388 of the Code of Civil Procedure;</p> <p>That the defense of the Statute of Limitations was available to Williams and to those claiming under him.</p>

Cross-appeals by the plaintiff, John L. Henning, as' trustee under-the last will and, testament of George W. Horton, deceased,, and by the defendant, the Hudson Valley Railway Company, from portions of a judgment of the Supreme Court, éritered in the office'of the clerk of the county of Saratoga on the 24th day , of April, 1903, upon the decision of the court, rendered after a trial;at the Saratoga' Special Term, enjoining the defendant from operating its road in certain…

<p>Negligence — collision between a wagon and a railroad train — contributory negligent, not imputed to a woman riding with her husband — injury to their child— proof as to the expense incurred for q physician’s services, not paid for — extra nursing and care of the child,</p> <p>In an action brought by a woman to recover for money expended and liabilities incurred for medicine and medical expenses for her infant child, it appeared that while the plaintiff, with her husband and infant child, was riding in a'carriage across the defendant’s railroad at a crossing, the carriage was struck by one of the defendant’s trains which had given no warning of its approach, and the plaintiff’s husband was killed and her child injured.</p> <p>At the time of the collision, in which the wagon was struck on the right side, the plaintiff’s husband was driving and the plaintiff was sitting on his left holding in her arms the child, which was thgn.fifteen months old. The accident occur. red on a stormy and sleety night in November. ' Both the- plaintiff and her husband were-unfamiliar with the crossing, and the train could only be seen for a distance of about sixty feet before the track was reached. I Held, that it could not be said that the plaintiff was guilty of contributory negli1 gence as matter of law in .failing to look around her husband to observe the approach of the train; ¡</p> <p>That while it was probably true that the. plaintiff could recover for any liability she-incurred for physician’s services rendered necessary by her child’s injuries,</p> <p>' even though she had not paid those claims, and no demand! for payment had been made-upon her, it was necessary that the -nature and exént of-such-liability should .be. clearly established before the defendant could be called upon to; pay the amount thereof; . ' •</p> <p>That, there being'no proof of any liability incurred for nursing the child, or as to the extra time and* nursing required of the plaintiff, it was improper for the court to charge that the jury might estimate the time and ajward a reasonable sum for extra nursing and care required by the child.</p>

Appeal by the defendant, the Empire Brick and Supply Company, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Columbia on the 15th day of October, 1903, granting the plaintiffs motion to sever the causes of action set forth in the complaint.

<p>INegligence— liability of a railroad company for the shooting, dyj its employee, who is also a police officer, of a person stealing a ride.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff's intestate, it appeared that the intestate was stealing a rihe upon one of the ¡defendant’s freight trains as it came into the village of Salamanca; that, his ^presence being discovered, he jumped from the car and : was chased by one Wheeler; that after he and Wheeler had passed beyond the defendant’s right of way, Wheeler called upon him to stop, and upon hisj failure to do so, Wheeler fired a revolver, the bullet from which struck and ¡killed the intestate. It. was assumed that Wheeler’s-act was negligent and not willful.</p> <p>Wheeler was a policeman of the village of Salamanca, a constable of the town of Salamanca, and a deputy sheriff of the county. He was albo in the employ of the defendant, with instructions to protect “the company’s-interest on the right «of way, to' keep tramps from trains, and look after robberies that might occur at stations and on freight cars, in the yards and on the tracks and in the station, and look after persons in an intoxicated condition on the company’s property, and generally to look after crimes committed against the railroad company on the right of way.”</p> <p>Testimony was also given that it was a part of his duty as an employee of the defendant.to drive and keep trespassers from the company’s property; that his duties were not limited to keeping trespassers off the trains where it was to the company’s interest to keep them out' of the yard; that this was largely committed to his discretion.</p> <p>Held, that as the intestate had committed a misdemeanor in Wheeler’s presence, it was his duty, as a public officer, to arrest him and that, as the defendant had no authority to forbid him or.restrain him from making such an arrest, it was not liable for the shooting.</p> <p>Houghton, J., dissenting.</p>

Appeal by the defendant, Joseph E. Williams, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Broome' on the 18th day of January, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes. The plaintiffs were manufacturers of cigars at Binghamton, FT.

<p>-Contract to furnish electric power — assignment thereof—estoppel to object to the assignment — arbitration clause — to what question it is inapplicable —'a demurrer that a counterclaim is not sufficient in law is not authorized,— an objection that a counterclaim is not proper under the Code must be specified, in the demurrer.</p> <p>^February 7, 1901, an. electric power company made an agreement with a cement manufacturing corporation, by which the’ power company agreed to supply the cement company with electric power for a period of five years. The minimum supply was tobe 1,000 horsepower and an option was conferred upon the cement company to take double that amount. Payments were to be made by the cement company monthly. The contract contained the following ■provisions:</p> <p>“ Tenth. The Cement Company agrees, as a condition precedent hereto, that •the electrical energy or power, hereby sold and to be taken by it, shall not be used or employed by it or its assigns during- the continuance of this agreement, .for the purpose Of manufacturing pulp or paper or fiber of any kind.” “Fourteenth. This contract shall inure to the benefit of and become binding upon the successors and assigns of the respective parties hereto.”</p> <p>November 15, 1903, the cement company assigned the contract to ati electric light company. November 20, 1902, the electric light company notified the power company of the assignment and paid to it the monthly installment-due under the contract. December 16, 1902, the electric light company notified the power company of its- intention to install on the premises of the cement company certain electrical apparatus. December 18,1902, the electric-light company notified the power company that the electrical apparatus was actually installed and demanded that the power company supply power as provided in the contract. December 20, 1902, the electric light company paid to the power company another monthly installment.</p> <p>December 23,1902, after the power company had written several letters to the-light company recognizing the assignment, the power company notified the-electric light company that it objected to the assignment of the contract to-the electric light company and offered to submit the question of the assign-ability of the contract to arbitration.</p> <p>The contract provided for an arbitration “ whenever any question shall arise as. to the true intent and meaning of any of the provisions of this contract,” but the electric light company refused to submit the question to arbitration.</p> <p>Held, that the power company was estopped from denying that the contract was . assignable to the light company, and from insisting that it was assignable only to a successor of the cement company in the cement business;</p> <p>That as the light company’s right depended, not only upon the construction of the contract, but upon the question of estoppel, the controversy was not such a one as was contemplated' by the arbitration clause contained in the contract.</p> <p>The objection that a counterclaim is not sufficient in law upon the face thereof is not an authorized ground of demurrer to the counterclaim within section 495-of the Code of Civil Procedure.</p> <p>The contention that a counterclaim is not a proper one within the provisions of the Code of Civil Procedure, is not available on a demurrfer to such counterclaim unless such objection is specified in the demurrer.</p>

<p> Equalization of tax assessments—the State Bow'd of Tax Commissioners may consider proof furnished by affidavits—what errors of the board of supervisors may be: considered by the State board—not a failure to include in the aggregate valuation the valuation of bank stock —when the Appellate Division will, reverse the determination of the State boa/rd. </p> <p>Upon a review by the State Board of Tax Commissioners, pursuant to section 175 of the Tax Law (Laws of 1896, chap. 908), on an appeal by the supervisor of a town from a decision made by the board of supervisorsiof the county when • equalizing the assessed valuation of the property in the various towns, the State Board of Tax Commissioners has the power to control the manner of the hearing before them and to determine what proofs shall be presented upon the questions under review. They are not confined to’the reception of purely legal evidence, but may authorize proof to be made by affidavits.</p> <p>An alleged error committed by the board of supervisors, in failing to include in the aggregate valuation of the property of the county the valuation of bank stock, is not an error “in the equalization of assessments” or “ in the correction of the assessment rolls ” under section 50 of the Tax Law, which authorizes that body to “increase or diminish the aggregate valuations of real estate in any tax -district by adding or deducting such sum upon the hundred as may, in its; opinion, be necessary to produce a just relation between all the valuations of Teal estate in the county.” Errors in these respects alone are -made by section 174 of the Tax Law the subject of review upon an appeal to the State Board of Tax Commissioners.</p> <p>The Appellate Division will not reverse the determination of the State Board of Tax Commissioners in such a proceeding upon a question of fact, unless, upon all the evidence, the error in the conclusion of that board clearly appears. Chase and Houghton, JJ., dissented.</p>

Appeal by the plaintiff, Orrin J. David, from a judgment of the.

<p> Diversion of a note from the purpose intended—right of an indorser thereof to have that question submitted to tTie jury—right of action on a note against the accommodation maker, by a party who acquires it from the principal debtor by whom it hots been paid. </p> <p>The firm of M. Phillips & Co. sold property to one Roe and also to one Allen. February 20, 1900, Roe executed a note for §200, payable to the order of Allen. Allen indorsed the note and delivered it to Phillips & Co. in payment of Roe’s indebtedness. Phillips & Co. indorsed it and procured it to be discounted. May 28, 1900, the note was renewed by a note for $206, signed by Roe and indorsed by Allen and Phillips & Co.</p> <p>April 18, 1900, Allen signed a note for $200, made payable to the order of Phillips & Co. and delivered it to Phillips & Co. in payment for property purchased by him or in renewal of a previous note so given; Phillips & Co. indorsed the note and procured it to be discounted.</p> <p>On June 25,1900, when the noté of April eighteenth was in the bank, then past due, Allen-signed a note for $206: 50 to the order of Roe. This note was indorsed by Roe and by Phillips & Co.-and delivered: to the bank which!delivered the note of May twenty-eighth, which was not then due, to Roe.</p> <p>July tenth, When the noté of June 25,1900, became due, Roe signed Allen’s-name to a nóte of $186.50. The note was then indorsed by Roe and by Phillips & Co. and was used in part renewal of the note of June twenty-fifth, Roe paying the balance in cash. The note of June twenty-fifth was delivered to Roe by the bank'. The note of July tenth, not having been paid when due, Phillips &'Co. took up the note and sued Allen thereon. Allen denied making the note and the action resulted in a judgment in his favor.</p> <p>In December, 1901, Roe delivered the note of June 25,1900!, to Phillips & Co. and they brought an action against Allen thereon. Allen, amimg. other defenses, alleged that the note of J une twenty-fifth was signed by him! for the purpose of - renewing his note Of April eighteenth and that Roe and Phillips & Co. diverted ■ the note in suit from that purpose. He also contended that Phillips & Co. were not the real parties in interest, ,the latter defense being based upon the fact that on or about July 17,1900, the amount of Allen’s note of April eighteenth was paid to the bank and that said note was transferred to and now was the property of Roe’s wife.</p> <p>Held, that it was error for the court to refuse to submit to thé jury the- question whether the note sued upon had been fraudulently diverted.</p> <p>Quaere, whether Phillips & Co. could recover on the note ini suit, it appearing ■that it had been paid by Roe, the principal debtor, as above; stated. -</p>

Appeal by-the plaintiff, Seward Clapper, from ¡an interlocutory judgment of the Supreme Court in favor of the defendant, The Village of Nassau, entered in the office of the clerk of the county of Rensselaer on the 14th day of July, 1903, upon an order entered: in said clerk’s office on the 14th day of July, 1903, sustaining the said defendant’s demurrer to the plaintiff’s complaint, and also from such order upon which the said jtidgment was entered.

Appeal by the plaintiff, Patrick W. Cullinan; as State -Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered' inj the office óf the clerk of the;county of Rensselaer on the 20th day' of March, 1903, upon the verdict of a jury, and also from- an order entered in said clerk’s office on the 14th day of April, 1903, denying,the plaintiff’s motion -for a new trial made upon the minutes. ¡ -

Appeal by the defendant, Sarah E. McCarthy, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Essex on the 23d day of July, 1903, denying the defendant’s motion to strike out certain portions of the complaint as scandalous and redundant and to require the plaintiff to separately state and number her causes of action.

Certiorari issued out of the Supreme Court and attested on the 28th day of July, 1903, directed to Nathan L. Miller, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in imposing a license fee upon the relator under section 181 of the Tax Law, and a franchise tax under section 182 of the Tax Law, for the year ending October 31, 1901.

• Appeal by the defendants, The Canajoharie Water Supply Company and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Montgomery on the 24th day of June; 1903, upon the decision of the court, rendered after a trial at the Fulton Special Term, overruling the defendants’ demurrer to the plaintiffs’ complaint.

Appeal by the defendants, The Common Council of the City of Binghamton and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 9th day of April, 1903, upon, as stated in said judgment, the decision of the court, rendered after a trial at the Broome Special.

Certiorari issued out of the Supreme Court and attested on the1 8th day of October, 1903, directed to The Sewer, Water and Street Commission of the Village of Saratoga Springs, N. Y., and another, commanding them to certify and return to the office of the clerk of the county of Saratoga all and singular their proceedings had in revoking a license issued to the relator, authorizing him to engage in the business of a hackman and of carrying passengers for hire in said village.

Certiorari issued out of the Supreme Court and attested on the 15th day of August, 1902, directed to Nathan L. Miller, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the revision and readjustment of the license fee and franchise tax imposed upon the relator for-the years ending October 31, 1900, aiid October 31, 1901.

Appeal by Sarah Spear from' so much of a' decree of the Surrogate’s Court of Washington county, entered in said Surrogate’s Court on the 21st day of May, 1903, as construes the provisions in the will of-John Spear, deceased, made for the! benefit of said Sarah Spear. . . The will in question . contained the following provision : “ First.

<p>Appeal by the defendant, The Broadalbin Knitting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Fulton on the 18th day of February, 1903, upon the verdict of a jury for $1,200, and also from an order entered in said clerk’s office tin the 13th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, Clinton Beckwith, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 16th day of October, 1902, upon the verdict .of a jury, and also from ail order entered in said clerk’s office on the 21st day of October, 1902, denying the said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of December, 1902, upon the verdict of a jury for $1,200, and also from an Order entered in said clerk’s office on the 30th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p> Employers' Liability Act—measure of the liability imposed upon employers by it—a foreign statute re-enacted by the State of New York will be construed as interpreted in the foreign counU'y—injury to a workman from the falling of a derrick, not properly secured by guy ropes. </p> <p>..In an action brought under the Employers’ Liability Act (Laws of 1902, chap. 600) to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, it appeared that the defendant was engaged in the erection of a building and that the work was in charge of a superintendent who hired and discharged the men and directed their work; that for the purpose of raising large roof timbers the superintendent erected on the floor of the upper story a shears derrick; that the legs of the derrick were planted a few feet back from the face of the building and that it was suspended over the edge of the building at an angle of about forty-five degrees by a guy rope running to the rear; that at the time of the erection of the derrick the superintendent’s attention was called to the fact that the derrick should be secured by a guy rope running to the front, but that the superintendent refused to support it in that manner, although it appeared that it was customary and proper to do so; that as the first timber was being lifted by the derrick the superintendent called the plaintiff from his work in another portion of the building and directed him to help haul it in between the legs of the derrick; that while the superintendent and the plaintiff were so engaged the derrick fell over backward, striking the plaintiff and injuring him.</p> <p>1 The plaintiff knew nothing as to the manner in .which the derrick had been constructed or was supported, and was working with his back to the derrick when it fell upon him.</p> <p>. Held, that the jury were justified in finding that the superintendent was guilty of negligence and that the plaintiff was free from contributory negligence;</p> <p>That the defendant was consequently liable under the terms of .the Employers’ Liability Act;</p> <p>That the effect of the Employers’ Liability Act is to take from the employer the defense of common employment where injury results to an employee through ' the negligence of one whose sole or principal duty is that of superintendence, at least where the negligence related to the place of the performance of the work and the construction of appliances for its prosecution; and it cannot be construed as making an employee a mere licensee to whom the employer owes no duty of exercising reasonable care.</p> <p>When a statute of a foreign jurisdiction is re-enacted in the State of New York, it should be construed in accordance with the interpretation placed upon it by the courts of the jurisdiction from which it was taken.</p>

<p>Appeal by the defendant, Hannah M. Hidley, from a judgment of the Supreme Court in favor of the plaintiff, and the defendant Emily A. Tompkins, entered in the office of the clerk of the county of Rensselaer on the 28th day of April, 1903, upon the decision of the court, rendered after a trial at the Rensselaer Special Term, adjudging the lien of certain legacies of the respondents to be superior to the liens of the other parties to the action upon real property devised by the will of Henry Weatherwax, deceased.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 30th day of June, 1903, directed to Hathan L. Miller, as Comptroller of the State of Hew York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in assessing the relator for a franchise tax for the year ending October 31, 1902, .upon its capital employed within the State during that year, under section 182 of the Tax Law. Theodore M. Taft, for the relator.</p>

Certiorari issued out of the Supreme Court and attested on the 29th day of August, 1903, directed to Nathan L. Miller, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and singular liis proceedings had in assessing a tax against the relator for the year ending October 31, 1902, under chapter 908 of the Laws of 1896 and acts amendatory thereof.

<p> Redemption from, a State tax sale —“ actual occupancy” of Adirondack land used as a fish and game preserve—when not such as to require service of notice to redeem. </p> <p>The Adirondack League Club, in 1890, purchased 9,000 acresi of land in the Adirondack mountains, and since then has used the tract as a forest, fish and game preserve. Included in the tract was a lot of 570 acres. Trails were cut through the forest across such lot and a boat landing -was built upon the shore of a lake that was partly in the lot. It was also possible, although the fact did not distinctly appear, that notices, warning all persons from trespassing on the 570-acre lot and that it was used as a private park, were posted upon the lot. This lot was used and cared for in the same manner as the rest of the tract.</p> <p>Held, that the club was notin the “ actual occupancy ” of the 570-acre lot within the meaning of section 134 of the Tax Law, which requires the service of a notice to redeem from a State tax sale to be served upon the actual occupant of the premises sold.</p> <p>. Smith and Chester, JJ., dissented.</p>

<p>Tax — assessment against a domestic corporation — what deduction should be made on account of its debts.</p> <p>In. assessing a franchise tax against a domestic corporation, the corporation is not entitled to have deducted from its gross assets the assets employed with out the State of New York and together therewith its total liabilities, leaving the balance as the amount upon which the franchise tax shall be computed.</p> <p>In such a case the corporation is entitled to a reduction from the value of the assets employed in the State of New York of only such proportionate amount of the liabilities of the corporation as is represented by the ratio of the assets employed within the State of New York to the entire assets of the corporation.</p>