Volume 91 — New York Appellate Division Reports

Rearg-dment of an appeal by the plaintiff, Lillian Romaine, as administratrix, etc., of Wayland D. Romaine, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 5th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.

<p>•Appeal by Nathan L- Miller, as Comptroller of the State of New York, from so much of an order of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 21st day of October, 1903, as directs the payment by the State Comptroller of interest lipón the amount of a transfer tax which he is by said order directed to refund to the respondent.</p>

Motion by the defendant, the Nassau Light and Power Company,, to dismiss an appeal taken by the plaintiff, Adelbert H. Sammis, from an order of the County Court of Nassau county, entered in the. office of the clerk of the county of Nassau on. the 24th day of September, 1903, denying the plaintiff’s motion to dismiss an appeal by the defendant to said County Court from a Justice’s Court.

<p> Conversion of a yacht —measure of damages where, after fhe conversion, the yacht is returned to, and accepted by, the plaintiff. </p> <p>The plaintiff in an action for the conversion of personal property is entitled tO' recover the highest value of the article converted from the time of the conversion to the time of the trial together with interest, upon such value during; that time.</p> <p>Where, in an action for. the conversion of a steam yacht,' it' appears that- the defendant returned the yacht to the plaintiff who had taken possession thereof, subsequent to the commencement of the action, the plaintiff is entitled 'to-recover the highest valúe of the. yacht from the time of the conversion to the. time of its return and acceptance with interest upon such value to the time of the trial, and the defendant is entitled to offset against this amount the value of the yacht , at the time she was returned to the plaintiff together. with interest on such valúe to the time of the trial.</p> <p>In such a case it is improper for the court to rulé that, the plaintiff’s measure of damages is the value of the use of the yacht during the time that it was in the possession of the defendant and the damage that the yacht suffered during that time.</p>

<p>Action against a non-resident corporation — what must befhown to sustain an attachment issued therein — the residence of a prior holder of the claim sued upon is immaterial.</p> <p>Section 17.80' of the Code of Civil. Procedure, which provides that an action agaihsta foreign corporation may be maintained by a resident of the State of New. York or by a domestic. corporation for aiiy cause of action, but that ah • action against a foreign corporation may he maintained, by another foreign corporation or by a non-resident, only in certain cases specified therein, is-an enlargement, not a restriction, of the jurisdiction of the Supreme Court where attachment proceedings are attempted to be taken against a foreign corporation. ■ -</p> <p>In order to sustain an attachment issued in an action brought against a foreign corporation upon a promissory note, it is necessary for the plaintiffs to show either that they are residents'of the State of New York or that the cause of action arose within this State.</p> <p>The fact that some-prior, holder of the note was a resident of the State of New York is immaterial.</p>

.Appeal by the plaintiff, Mary Montgomery, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 21st day of December, 1903, granting a motion made by certain of the defendants that the above-entitled action be preferred for trial.

Appeal by the relator, Jacob H. McPike, from an order , of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of September, 1903, dismissing a writ of habeas corpus and remanding the relator to custody.

Appeal by the defendant, James 0. McEachen, 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 9th day of April, 1903, upon the verdict of á jury, and also from an order entered in said clerk’s office on the 8th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Leyi L. Gans 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 28th day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of March,. 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the relator, The Manhattan Life Insurance Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of May, 1903,'quashing a writ of certiorari theretofore issued herein.</p> <p>The relator in January, 1902, was a domestic corporation and the owner of real property in the borough of Manhattan, which was assessed by the defendants. The petition avers that such assessment was illegal and void because entered in a book required to be kept in the main office of the department of taxes in the borough of Manhattan, called “ The Annual record of the assessed valuations of real and personal estate of the Borough of Manhattan ” for the year 1902, when the same should have been, but was not, entered in the “ Annual record of the assessed valuations of real and personal estate of corporations ” for the year 1902, as required to" be •kept in said main office by section 893 of the Greater New York charter; * which entry has not been changed and is now the final ^determination of said board. The petition further shows that although the said “ Annual record of the assessed valuation of real .and personal estate of the Borough of Manhattan ” was open for inspection and correction as required by law, which fact was duly .advertised, the said commissioners did not advertise that the “Annual record of the assessed valuation of real and personal ■estate of corporations ” was open for. examination and inspection; that the board thereafter caused to be prepared from said books of annual record, of the assessed valuation of real and personal estate of the borough of Manhattan, the assessment roll for said borough, in which roll is included the entry of assessment of the petitioner’s real property and annexed to the roll their certificate that the same was correct, and delivered the roll so certified to the board of aldermen on the day and at the place required by law, but did not •deliver to them the “ Annual record of the assessed valuations of real and personal estate of corporations,” containing an assessment .against petitioner’s property; that the board of aldermen confirmed the roll delivered to them, and the tax imposed upon petitioner’s property will become an apparent lien thereupon. It is asked that the assessment be set aside and vacated as illegal and void. The •defendant’s motion to quash the writ issued upon the relator’s petition, upon the ground that the facts set forth do not show illegality •of the assessments made, was granted; and from the order so •entered the relator appeals.</p>

Appeal by the defendant, the Shepard & Morse Lumber 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 20th day of May, 1903, upon. the special verdict of a jury and an order of the court reducing the amount of such verdict, and also from an order entered in said clerk’s office on the 25th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, George A. Stearns, 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. of May, 1903, upon the special verdict of a jury and an order of the court reducing the amount of such verdict. The ground of the appeal is the alleged inadequacy of the recovery.

Certiorari issued out of the Supreme Court and attested bn the 11th day of September, 1903, directed to Francis Y. Greene, as ■police commissioner of the city of New York, commanding him to ■certify and return to the office of the clerk of the county of New York all and singular his proceedings had in reducing the relator from the rank of detective sergeant to patrolman.

<p>Conflict of evidence in a negligence case—the testimony of a woman in a highly nerv» ous condition considered not suflicient to sustain, as against the testimony of other witnesses, a verdict in her favor.</p> <p>Where, on the trial of an action to recover damages for personal injuries sus» . tained by the plaintiff while alighting from one of the defendant’s street cars, the plaintiff’s testimony that the car had stopped at the time she attempted to alight is contradicted by all the other witnesses who were upon the car, the fact that a physician who treated the plaintiff since the accident testified that,</p> <p>. as a result of the accident, she was in a highly nervous condition, had delu» sions and a very pronounced case of neurasthenia, is to be considered in deter» mining whether the plaintiff’s uncorroborated testimony that the car had stopped when she attempted to alight is sufficient to support a finding of a jury to that effect.</p>

Appeal by the defendant, Adolph H. Dankberg, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 25th day of September, 1903, convicting the defendant of assault in the second degree.

Appeal by the defendant, The Hew York Times Company, from an order of the Supreme Court, made at the Hew York Special Term, and entered in the office of the clerk of the county of Hew York on the 27th day of April, 1903, striking out as irrelevant certain portions of the defendant’s answer.

Appeal by the claimant, Sophie Steglich, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 21st day of August, 1903, upon the report of a referee, dismissing the claim of Sophie Steglich against the estate of Augusta Steglich, deceased, and directing that the executor of’ said deceased have judgment against the claimant for costs to' be paid out of the estate.

Appeal by the defendants, Bernard Naughton 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' 16th day of May, 1903, upon the verdict of a jury for $4,500, and also from an order entered in said clerk’s office on the 29 th day of May, 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Gardiner Sherman, 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 10th day of June, 1903, upon the report of a referee. -</p>

Appeal by the plaintiff, The People of the State of New York, 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 10th day of November, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, the New Yorker Zeitung Publishing and Printing 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 25th day of November, 1903, denying the defendant’s motion to set aside the service of the summons and complaint in this action.

Appeal by the defendant, the New York Evening Journal Publishing 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 3d day of December, 1903, striking out as irrelevant and redundant certain portions of the defendant’s answer.

Appeal by the defendant, Chester Burnell Duryea, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 9th day .of July, 1903, upon the decision of the court, rendered after a trial at the Hew York Special Term, granting the plaintiff a separation from the defendant upon the ground of cruel and inhuman treatment.

<p>Fraudulent prospectus as to the earnings of a mining company — sales of stock induced thereby — measure of damages — assignment by several purchasers of stock to certain of their number by whom, suit is brought.</p> <p>Statements in a prospectus issued by á trust company, offering for sale the entire capital stock of a mining corporation capitalized at $50,000, that the corporation had been operated for two years at a large profit; that the net earnings, after deducting all royalties and expenses for the six months preceding the issuing of the prospectus, were $12,134.20, all of which was applicable to dividends; that it was the intention to pay- one or one and a half per cent \ dividends semi-monthly and extra dividends in addition thereto as often as should be deemed prudent, reserving at all times sufficient cash on hand to cover any contingency that might arise, amount to something more than a mere expression of an intention to pay dividends, and the falsity of such representations will furnish the basis for an action of fraud against the trust company by persons who purchase stock of the mining company in reliance thereon.</p> <p>The measure of damages recoverable in such an action is the difference between what would have been the value of the stock if the representations had been true and the actual value of such stock.</p> <p>Sections 73 and 77 of the Code of Civil Procedure do not operate to preclude parties who purchased stock in reliance upon false representations from assigning their claims to some of their number, for the purpose of enabling the latter to bring an action to recover the entire damages resulting from the fraud.</p>

Appeal by the plaintiff, Henry W, Hardon, as assignee of Thomas W. Bobertson for the benefit of creditors, 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 4th day of December, 1903, upon the dismissal of the complaint by direction of the court after- a'trial at the New York Trial Term.

Appeal by the plaintiff, Solomon Multz, 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 2d day of July, 1903, upon the decision of the court, rendered after a trial at- the New York Special Term, dismissing the plaintiff’s complaint upon the merits.

<p>Principal and agent — what creates a- fiduciary relation — action by an agent to establish the amount of Ms compensation— it is not a bar to añ action by his cestui que trust for an accounting by him—such demand for an accounting might be, but need not be, set up as a counterclaim in the agents action■— the rendering of accounts does not relieve the agent from an action to compel an accounting— acknowledgment before a consular agent of the United States—when it sufficiently states his foreign residence.</p> <p>In 1866 one Underhill, a resident of the State of Hew York, was appointed agent for Hina Jordan and Louise P. Jordan, who resided abroad, in respect to certain property consisting of cash, real estate and mortgages, by a power of attorney investing him with authority to. deal with the property .as seemed best in his discretion.</p> <p>In 1901 the Jordans revoked the power of attorney and Underhill turned over to them certain property, but retained in his possession $7,955.42 which he claimed as compensation for his services. Underhill then began an action against the Jordans to have the amount of liis just compensation as agent . ascertained and fixed by the court, claiming a lien upon the sum remaining in his hands until such amount should be determined, and .that in case the amount retained by him should not be sufficient to reimburse him in the amount to which he was entitled, that he have judgment against the Jordans for the balance.</p> <p>The complaint in that action averred that Underhill had rendered annual accounts to the Jordans and that he was ready, able and willing to account and pay over to them so much of the sum retained by him as the court should decide that they were entitled to if it should be determined that he was not entitled to the whole of such fund.</p> <p>Thereafter the Jordans brought an action against Underhill to compel an accounting by him in respect to all his dealings with their property.</p> <p>Seld, that the action brought by Underhill was not a bar to the action brought by the Jordans, for the reason that all that it would be necessary for Underhill to establish in the action brought by him would be the character of the services rendered, the value thereof and the amount which he retained, and that for that purpose a full and complete accounting of all his transactions and dealings with the property of the Jordans would not be absolutely necessary;</p> <p>That while the Jordans might have interposed a counterclaim, in the action brought by Underhill, fora full and complete accounting of all his transactions as agent, they were not bound to do so;</p> <p>That Underhill’s agency created a fiduciary relatipn between the parties entitling the Jordans to an accounting;</p> <p>That the fact that Underhill had from time to time rendered accounts of his proceedings to the Jordans and had transferred all of the properties in his hands except the amount which he had retained to reimburse himself, did not deprive his principals of the right to demand a full and complete account of all his dealings.</p> <p>An acknowledgment, the venue of which is as follows:</p> <p>* ‘ Confederation op Switzerland, ]</p> <p>“ Canton de Vaud, ¡-ss.”</p> <p>“ City of Vevey, J ■</p> <p>and which recites, “ on this 28th day of May * * * before me, William Cuénod, Consular Agent of the United States of America, in and for the said ’ City of Vevey, at said City of Vevey, personallyappeared,” sufficiently shows that the consular agent who took the acknowledgment resided in Switzerland.</p>

<p>Negligence — employment of a boy under sixteen years to operate a conveyor in a tool manufactory — what constitutes assisting in operating it — the question whether the conveyor is a dangerous machine is one for the jury— also the question of contributory negligence, to be determined by the realization of the situation by the boy.</p> <p>In an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, brought under section 81 of the Labor Law (Laws of 1897, chap. 415, as amd. by Laws of 1899, chap. 192), providing, “ children under sixteen years of age shall not be permitted to operate or assist in operating dangerous machines of any kind,” it appeared that the defendant was a manufacturer of tools and machinery; that, for the purpose of carrying tools to and from the different floors of its factory building, the defendant had installed in a shaft, running from the bottom to the top of the building, a 1 machine operated by mechanical power, known as a conveyor. The conveyor consisted of endless chains, carrying, at intervals of about thirteen feet, metallic pans, upon which the tools were placed. There were two openings in the shaft .at each floor of the factory building, one opposite the ascending and the other opposite the descending pans. These openings were about eighteen ■ inches above the floor, and were three feet wide and forty-six inches high. The conveyor moved at the rate of about one foot a second, so that the time occupied by the pans in passing the openings in the shaft was about four seconds.</p> <p>June 3, 1902, the defendant employed the plaintiff, a boy fifteen years of age, and, on the eighth day of his employment, directed him to attend the conveyor. The plaintiff had no previous experience in the work, and received no warning as to the danger, or instructions as to the safe method of performing the duties thus assigned to him.</p> <p>After the plaintiff had been working at the conveyor four or five hours, he proceeded to put some tools upon a descending pan. Two of the tools fell over the side. He attempted to grab them, but they were too far down, and just then the pan came down and caught his head between the pan and the landing. There was a space of about six inches between the edge of the pan and the side of the shaft toward the plaintiff. The plaintiff admitted that he knew that if he put his head far enough into the opening to be within range of these passing pans he would be liable to receive injuries.</p> <p>Held, that a judgment dismissing the plaintiff’s complaint should be reversed;</p> <p>That the plaintiff was assisting in the operation of the conveyor within the fair intent and meaning of the statute;</p> <p>That it could not be said, as a matter of law, that the conveyor was not a dangerous machine within the contemplation of the statute;</p> <p>That the question, whether the plaintiff was guilty of contributory negligence was one of fact for the jury;</p> <p>That if it appeared that the plaintiff, at-the time he thrust his head into the shaft, realized and appreciated the danger incident thereto, he would be guilty of contributory negligence, as matter of law, but that it was for the jury to say whether he realized the danger at that time, and that, if they found that he did not then appreciate and realize the danger, they would he justified in finding that he was free from contributory negligence.</p>

<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 15th day of June, 1903, upon the verdict of a jury for $5,000, and a,lso from an order entered in said clerk’s office on the 15th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by tlie 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 15th day of December, 1902, upon the verdict of a jury- for $1,500, and also from an order entered in said clerk’s office on the 8th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Merchants’ Union Ice 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 23d day of May, 1903, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 28th day of May, 1903, denying the defendant’s motion fór a new trial made upon the minutes.</p>

<p>Appeal by the defendants, Henry Burn and others, as trustees acting under the provisions of the agreement for the dissolution of the National Wall Paper 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 6th day of July, 1903, as modified' by an order entered in said clerk’s office on the 6th day of July, 1903, upon the decision of the court, rendered after a trial at' the New York Trial Term, a jury having been waived.</p>

Appeal by the defendants, James L. Wells and others, as commissioners of taxes and assessments of the city of Hew York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of September, 1903, denying the defendants’ motion to quash a writ of certiorari .theretofore issued herein.

Appeal by the plaintiff, The People of the State of Yew York, from an order of the Court of Special Sessions of the Peace, first division, of the city of Yew York entered in the office of the clerk of said court on the 18th day of August, 1903, allowing the defendant’s demurrer to the complaint.

Appeal by the defendant, Janet S. Haslett, from an order of the Supreme Court, made at th.e Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 30th day of Hovember, 1903, denying the said defendant’s motion to have the amended complaint made more definite and certain, and to have the causes of action separately stated and numbered.

Appeal by the plaintiff, Catherine M. Beetson, an infant, by Charles E. Hunter,, her guardian ad litem, and by the defendant, Frederick W. Beetson, as administrator, etc., of Andrew Moll, deceased, from portions of a judgment of the Supreme Court in favor of the defendant Marie E. Stoops, entered in the office of the clerk of the county of Yew York on the 29th day of June, 1903, upon the decision of the court rendered after a trial at the Yew York Special Term, certain…

Certiorari issued out of the Supreme Court and attested on the-. 16th day of July, 1903, directed to Francis Y. Greene, as police-commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in dismissing the relator from the-police force of the city of New York.

<p>Appeal by the defendants, William Hauptmann ■ 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 5th day of May, 1903, upon the decision of the court rendered after a trial at the New York Special Term, and also from an order entered in said clerk’s office on the 5th day of June, 1903, granting the plaintiff an extra allowance.</p> <p>This action is brought to set aside a separation agreement made between the ■ plaintiff and her husband, the defendant William. Hauptmann, by the terms of which they agreed to live apart. At the time of the execution of the separation agreement Thomas Brady, and wife and the defendant William Hauptmann and wife executed and delivered to the defendant John Bottomley a conveyance of five parcels of real estate which, upon the trial, it was'conceded were bought with partnership moneys and belonged to the firm, of Brady & Hauptmann. The next day John Bottomley and wife conveyed to said Thomas Brady an undivided one-half interest in the said five parcels of property. It is conceded that Bottomley paid no consideration and the conveyance to him by the copartners and their wives was made so that the firm real estate could be deeded free from any objections or obstructions on the part of the plaintiff, and that 'he took the title as an accommodation to the firm and was to hold it Until the firm could sell -it for the copartnership account, and that these conveyances were made in accordance with the separation agreement which had been entered into between the plaintiff and her husband.</p> <p>Upon the trial it was further conceded that the separation agreement was invalid ; and with the fall of that instrument the deed to Bottomley necessarily fell. The Special Term decided that the real estate involved was copartnership property and that the plaintiff was entitled to an inchoate right of dower therein, subject to the primary claims growing out of the copartnership relations; and it is from this latter part of the decision and the order granting the extra allowance that certain of the defendants appeal.</p>

Appeal by the defendants, Thomas J. Dunn and another, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew ■ York on the 14th day of December, 1903, denying the said defendants’ motion to remove a referee theretofore appointed in the action and to have a new one appointed.

Appeal by the defendant, Jacob A. Zimmermann, pursuant to leave duly granted, from an order of the Appellate Term of the Supreme Court, entered in the office óf the clerk of the county of New York on the 13th day of March,.1903, which order affirmed a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered in the office of the clerk of said Municipal Court on the 12th day of January, 1903. ■ Benjannm G. Pasltus, for…

Appeal by the' defendant, Milford B. Streeter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office-of the clerk of the county of Hew York on. the 13th day of July,. 1903, upon the decision of the court rendered after a trial before the court without a jury at the Yew York Trial Term.

<p>Action to enforce payment of a personal tax—it is not a defense that the pa/rty assessed did riot have property to the amount of the assessment—nor that the assessors did not assess all persons and all property taxable under the statute — the remedy of the party assessed in such case is by certiorari.</p> <p>In an action brought by the city of New York to recovera personal tax imposed upon the defendant, the defense that the defendant did not possess property to the amount for which he was assessed is not available to the defendant, where, although-he was afforded an opportunity to do so, he neglected toshow the authorities that he was not in fact liable for the tax imposed or to bring any direct proceedings to review the determination of the assessors.</p> <p>In such a case the fact that all the persons and' all the property which should have been taxed by the assessors were not actually ascertained and taxed, either because the tax officials were not sufficiently diligent or did not employ a sufficient force to enable them to perform that duty properly or because they purposely omitted from the rolls the names of persons who should have been taxed, is not fatal to the assessment and does not constitute a defense to the action.</p> <p>Semble, that the defendant’s remedy in the last-mentioned cases is under section 906 of the Greater New York charter (Laws of 1897, chap. 878, as amd. by Laws of 1901, chap. 466) which permits him to bring up by certiorari the question whether the tax imposed is for any reason illegal or erroneous.</p>

Appeal by the defendant, John M. Ferris, from an interlocutory-judgment of the Supreme Court in favor of the plaintiff, entered in. the office of the clerk of the county of New York on the 14th day of May, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer-to the plaintiff’s complaint.

Appeal by the defendant, Hugo Fredericks, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the. clerk of the county of Hew York on the 20th day of Hovember, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of December, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Peter W. Rouss, as executor, etc., of ■Charles Broadway Rouss, deceased, from a judgment of the Supreme ■Court in favor of the plaintiff, entered in the office of the clerk of the county of Uew York on the 22d day of May, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Edith La Ban Dyer and another, as «executrices, etc., of Alicia Y. La Bau, deceased, from a judgment -of the Supreme Court in favor of the plaintiff, entered in the office ■ of the clerk of the county of Rew York' on the 11th day of June, 1903, upon the verdict of a jury, and also from an order entered in :said clerk’s office on the 5th day of June, 1903, denying the defend- . ants’ motion for a new trial made upon the minutes.

<p>Newspaper article, ridiculing the ideas of poetry of an instructor in English—when not libelous per se — demurrable if special damages be not alleged.</p> <p>Newspaper articles, published of and concerning an instructor in English at a university, engaged in writing and lecturing on literary subjects, written in a spirit of exaggeration and fun and ridiculing his ideas of poetry, do not tend to expose him, as an individual, to ridicule and contempt, or' to injure him in his profession, occupation or business, and are not libelous per se.</p> <p>Lauqhlin, J., dissented.</p> <p>A complaint in an action of libel, based upon an article which is riot libelous per se, is demurrable, unless it alleges special damages.-</p>

<p>Contempt in refusing to answer in proceedings supplementary to execution — where proceedings to punish for the contempt must he instituted.</p> <p>Where a judgment creditor, who obtained his judgment in the Supreme Court, in the first judicial district, institutes supplementary proceedings against the judgment' debtor before the county judge of Rensselaer county, an order to show cause why the judgment debtor should not be adjudged guilty of contempt for refusing to answer questions propounded to him by the referee appointed in the supplementary proceedings, cannot be issued by a justice, and be made returnable át a Special Term of the Supreme Court in the first judicial district.</p> <p>Under section 8273 of the Code of Civil Procedure such an order to show cause is an application in supplementary proceedings, and must be made to the county judge of Rensselaer county or to the Supreme Court in the district in which Rensselaer county is located.</p>

Appeal by the defendant, Thomas Hastings, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of New York on the 29th day of April, 1903, upon the report of a referee.

<p>Assessment for personal tax in New York city—the assessors act judicially— what questions can he raised in an action to enforce payment—proof required to support the tax — certificates are conclusive as to their recitals —proof of publication of notice that the annual record isopen to inspection—proof that the record was actually kept open —form of certification of a transcript of the record — it must-he under seal.</p> <p>In levying an assessment the assessors act judicially, and their action has all the force and effect of a judgment.</p> <p>In an action brought by the city of New York to enforce a personal tax imposed upon the defendant, no question can be raised, resting upon the merely erroneous acts of the assessors, not affecting their jurisdiction.</p> <p>The establishment of a valid assessment roll is an essential part of the plaintiff’s cause of action. When once established it is conclusive as to the plaintiff’s right to recover, and is not open to attack by the defendant.</p> <p>Certificates attached to the roll, and framed in the form required by statute, are conclusive of the fact that the acts and steps recited therein to have been taken were actually taken. The defendant- cannot question the verity of the recitals except by a direct proceeding to set them aside.</p> <p>Under section 892 of the Greater New York charter (Laws of 1897, chap. 378), which provides that the annual record of the assessed valuation of real and personal estate shall be open for public inspection, examination and correction for ' a certain period, and that that fact shall be advertised “in the City Record and in the corporation newspapers, and in such other newspaper or newspapers published in the several boroughs created by this act as may be authorized by the board of city record,” proof of publication in the City Becord, it not appearing that there was any other corporation newspaper, is sufficient, in the absence of evidence that the board of city record directed publication in any other . newspaper.</p> <p>The statute being silent as to the manner in which the fact that the books were kept open for inspection during the required period shall be evidenced, the plaintiff need not introduce affirmative proof to that effect, and it will be presumed that the taxing officers have performed their duty in this respect until the defendant establishes the contrary.</p> <p>Semble, that, if it were necessary for the plaintiff to establish affirmatively that the books were kept open for inspection during the required period, proof of the publication of the notice that the books were open for inspection would not be sufficient.</p> <p>A transcript of a part of the record containing the assessment against the defend- . ant, certified by the chief clerk of the department of taxes, is not competent in evidence under section 933 of the Code of Civil Procedure, where such certificate has no seal attached to it.</p>

<p>Appeal by the plaintiff, John Stewart,, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 14th day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Hew York Trial Term.</p>

Appeal by the plaintiff, John O. McCord, from an order of the • Supreme Court, made at the Yew York Special Term and entered in the office of the clerk of the county of Yew York on the 13th day of January, 1904, denying the plaintiff’s motion to continue a temporary injunction pendente Hie.

Appeal by the defendant, Daniel A. Sinclair, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the , 2d day of November, 1903, in a habeas corpus proceeding awarding to the relator the. custody of the infant child of the parties to this, proceeding.

Appeal by the defendant, Mary Egan Butler, 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 27th day of November, 1903, continuing pendente lite an order: restraining the defendant from in any wise interfering with the-body of Asahel Seward Butler, and awarding the custody of the-said body to the plaintiff.

Appeal by the defendant, George E. Mills, from a judgment of the Supreme Court in favor of the plaintiff, rendered on the 27th day óf May, 1903, upon the verdict of a jury convicting the defendant of the crime of grand larceny in the second degree.*

<p>Appeal by the plaintiff, John M. Cornell, from an order of the-Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 11th day of July, 1901, setting aside a special verdict theretofore rendered by a jury and granting a new trial.</p>

Appeal by the defendant, John Swift, from an interlocutory judgment of the Supreme Court in’favor of the plaintiffs and the defendant Henry R. R. Coles, entered in the office of the clerk of the county of Hew York on the Yth day of July, 1903, upon the decision of the court rendered after a trial at the Hew York Special Term in a partition action.

Appeal by the defendant, o.ne City of Few York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 6th day of August, 1903, upon the verdict of a jury for $1,845.24, with interest, and also from an order entered in said clerk’s office on the 1st day of July, 1903, denying the said defendant’s motion for a new trial made Upon the minutes.

<p>Appeal by the plaintiffs, Adam P. Schmidt and another, individually and as executors of and trustees under the last will and testament of Martha Schluter, deceased, and by the defendants, Charles Forster and Lizzie Schmidt, from so much of an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of Hew York on the 19th day of October, 1903, upon the decision of the court, rendered after a trial at the Hew York Special Term, construing the will of Martha Schluter, deceased, as charges certain legacies against the real estate of said testatrix.</p>

Appeal by the plaintiff, Edward Fox, as administrator, etc., of Patrick Fox, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of December, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint.

Appeal by the plaintiff, Otelia W. J. Schwenker, from an interlocutory judgment of the Supreme Court in -favor of the defendant, entered in, the office oí the clerk of the county of New York on the 3d day of August, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.

Motion by the defendants, Theodore Haebler and another, for an order directing, the clerk of the Appellate Division in the first department to file the casé on. appeal herein, the said clerk having refused to file the same because it did not contain an order of the trial judge directing the case to be filed.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of June, 1903, upon the verdict of a jury for $200, and also from an order entered in said clerk’s office ón the 17th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.'

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the(county. of Kings on the 18th 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 16th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeajl by the defendant, Edward Richardson, from a judgment of the County Court of Queens county in favor of the plaintiff, entered in the office of the clerk of the county of Queens on. the 15th day of May, 1903, upon the verdict of a jury rendered by direction of the court.'

Appeal by the defendant, the Mutual Reserve Life 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 Westchester on the 4th day of April, 1903, upon the decision of the court rendered after a trial before the court without a jury at the Kings County Trial Term.

Appeal by the defendant, the Supreme Council, American Legion of Honor, from a'judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of' Kings on the 15th day of April, 1903, upon the decision of the court ren dered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Beecher Ogden, from an order of the Supreme Court, made at the Kings County Special Term and entered in' the office of the clerk of the county of Q.ueens on the 27th day of November, 1903, staying all proceedings on the part of the plaintiff until the determination of, and entry of judgment in, another action pending in the'Supreme Court in which the Pioneer Iron Works is plaintiff and the H. W. Johns-Manville Company, the alleged assignor of Beecher…

■ Appeal by the defendant,, the. Harbor and Suburban Building and Savings Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 3d day of March, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the specific performance of a contract for the-sale of real estate.

Appeal by the plaintiff, David Jenkins, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on. the 9th day of December, 1903, nunc pro tunc as of the 25th day of November, 1903, staying all proceedings herein on the part of the plaintiff until the final decision by this court of an appeal in an action by the same plaintiff against the defendant Henrietta L. Baker individually.

<p>Appeal by the defendant, the Interurban Street Railway Company, from a judgment of the Municipal Court of the city of Mew York, borough of Queens, in favor of the plaintiff for $155.35, entered on the 25th day of September, 1903, upon the verdict of a jury-</p>

<p>Section 202 of the Beal Property Law as to a lease of New Tork city property, without specified duration, ending on May first — it does not apply to a tenancy by the month—eviction implies abandonment—-alterations made with the consent of tenant are not an eviction.</p> <p>Section 202 of the Real Property Law (Laws of 1896, chap. 547), which provides,, “An agreement, for the occupation of real property in the city of New York, which shall not particularly specify the duration of the occupation, shall be deemed to continue until the first day of May next, after the possession commences under the agreement'; and rent thereunder is payable at the usual quarter days, for the payment of rent in. that city, unless otherwise expressed in the agreement,” has no application to a case where the. tenancy is by the month.</p> <p>There can be no constructive eviction wiuhout an actual abandonment.</p> <p>Alterations, improvements and repairs made with the consent of the tenant do not constitute an eviction.</p>

Appeal by the defendant, The Village of Warwick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 9th day of March, 1903, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office on the 17th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, William McMurtrie Speer, from an order of the County Court of Rockland county, entered in the office of the clerk of the county of Rockland on the 14th day of August, 1903, denying the defendant’s motion for a retaxation of costs.

Appeal by the defendant, Joseph M. Cohen House Wrecking Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 9th day of Novepiber, 1903, upon the decision of the court awarding the plaintiff $500.

Appeal by the defendant, Edward Everett Cady, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 13th day of November, 1903, denying the defendant’s motion to require the plaintiff to amend .the complaint by separately stating and numbering the different causes of' action and by making the complain! more definite and certain.

Appeal by the plaintiff, Jerome Hirshkind, from an order of the Supreme Court, made at the Kings County Special Term and entered in the officé of the clerk of the county of Westchester on the 5th day of February, 1904, granting the defendant’s motion to change the place of trial of the action from the county of Westchester to the county of New York.

Appeal by the defendants, Abraham Abraham and others, composing the firm of Abraham & Straus, from a judgment of the Supreme Court in favor of the plaintiff, yntered in the office of the clerk of-the county of Kings on the 20th day of April, 1903, upon the.verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 25th day of April, 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p>Negligence—injury to one entering a street car. from its starting—evidence that it started with a jerk — incompetent but material evidence, not objected to — remedy if the evidence is irrelevant.</p> <p>Where the complaint in an action brought to recover damages for personal inju- ■ ries alleges that, while the plaintiff was entering one of the defendant’s street cars and before she had a reasonable time to gain a safe position, the defendant “wrongfully and negligently started said car,” evidence that the. car was started with a jerk while the plaintiff was in a position where she was exposed to the danger of being thrown down, is material to the issue.</p> <p>A party who permits incompetent evidence material to the issue to be received without objecting thereto is not entitled, when he finds that such evidence is prejudicial to him, to have the evidence stricken out.</p> <p>Semble, that if irrelevant evidence is admitted, the party calling attention thereto is entitled to an instruction that it should be disregarded by the jury, although he did not object to its admission.</p>

Appeal by the defendant, the Hew York and Queens Electric Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 11th day of April, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 18th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John Bloom, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the lYth day of November, 1903.

Appeal by the petitioner, Fanny L. Flewwellin, from a final order of the county judge of Westchester county in favor of the respondent, entered in the office of the clerk of the county of Westchester on the 18th day of July, 1903, dismissing the proceeding.

<p>Appeal by the defendant, William Young,, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 15th day of January, 1903, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 12th day of January, 1903, denying the said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the - plaintiff, entered in the office of the clerk óf the county of O ranga ón the 11th day of Aprils 1903, upon' the verdict of- a jury rendered by direction of the court after a trial at the Orange Trial Term.

Appeal by the defendant, Garret A. Bouse, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor' of the plaintiffs, entered on the 29th day of September, 1903, and also from an order denying the defendant’s motion to vacate an attachment issued in the action.

Appeal by the defendants, The Long Island Railroad Company and another, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 26th day of September, 1903..

<p>Appeal by the plaintiff, The City of New York, from, a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the defendant, entered on the 12th day of November, 1903, dismissing the plaintiff’s complaint.</p>

<p> New York Sanitary Code, .% 195—prohibition against keeping “ any dog or other animal” in any stable to the detriment of life or health—it does not a/pply to horses. </p> <p>Section 195 of the'Sanitary Code of the city of New York, which provides, “ No person owning, occupying or having charge of any stable or other premises, shall keep or allow thereon or therein any dog or other animal which shall by noise disturb the quiet or repose of any person therein of in the vicinity,, to the detriment of the life or -health of any human being,” does not apply to horses kept in stables.</p> <p>The purpose of the ordinance was to prevent the keeping in stables of like places of dogs or such other animals, for whose keep stables are not primarily provided, as, by their noise, disturb quiet or repose to the detriment of life and health.</p> <p>The expression “ other animal,” used after " dog,” must be construed upon the principle of ejusdem generis:</p>

<p>Appeal by the plaintiffs, George W. Palmer and another, from a judgment of the Supreme Court in' favor of the defendants, Henrietta Ward and Mary E. Neill, as administratrix, etc., of John M. Ward, deceased, entered in the office of the clerk of the, county of Kings on the 25th day of October, 1902-, upon the decision of the-court rendered after a trial at the Kings County Special Term.</p>

<p>Appeal by the defendant, William Young, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 19th day of December, 1902, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 19th day of December, 1902, denying the said defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, John T. Williams, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk .of the county of Nassau on the 20th day of November, 1903, denying the defendant’s motion to strike out the plaintiff’s amended complaint.

<p>Work done by a commissioner on an unsafe highway, involving an expense in excess of the money in his hands, without the previous consent of the town board, — mandamus is not the remedy by which its consent can be secured — qusere as to its right to ratify such acts.</p> <p>Section 10 of the Highway Law (Laws of 1890, chap. 568, as amd. by chap. 84 of the Laws of 1899), provides * ‘ If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise, or become unsafe, - the commissioner of highway» of the town in which such highway '.or bridge . may be may cause the same, to be immediately repaired or rebuilt, if consented to by the town board; but if the expense thereof exceed five hundred dollars, it shall be done under a written contract therefor, which must be approved by the town board, and the commissioners of highways shall present the proper vouchers for the expense thereof to the town board at their next annual meeting, and the same shall be audited by them and collected in the same manner as amounts voted at town meetings.’’ The commissioner of highways of a town, witho'ut the previous consent of the town board, expended moneys, in excess of the amount in his hands, for the purpose of repairing highways which were in a dangerous and unsafe condition.</p> <p>Held, that a writ of mandamus would not issue, commanding the officers of the town to convene as a town board and give their consent to the payment of the highway commissioner’s claim for reimbursement;</p> <p>That the fact that the condition of the highways in question was such that the town board, if applied .to, would undoubtedly have consented to the making of the necessary repairs, afforded no reason why the mandamus should be issued.</p> <p>The consent mentioned in the statute is a judicial act in that it contemplates a decision based upon the evidence as to whether or not the highways are unsafe and require immediate repairs.</p> <p>The court has no power to transform the judicial act of consent into the ministe- ■ rial act of mere approval of the acts of the highway commissioner.</p> <p>Qumre, whether the town board, if they so elected, could, after the work was . done, ratify the acts of the highway commissioner.'</p>

• Appeal by the plaintiff, Catherine Kennedy, from. a. judgment of the Supreme Court in favor of the defendant, entered in the office, of the clerk of the county of Kings on the 2.0th day of March, 1903, upon the dismissal of the complaint by direction of the court upon the plaintiff’s opening after a trial at. the¡ Kings' County Trial Term..

Appeal by Rosetta Corn from an order of the Surrogate’s Court of the county of Kings, entered, in said Surrogate’s Court on the 3d day of December, 1903, denying a motion made by the said Rosetta Corn to resettle a case on appeal in the above-entitled proceeding.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th 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 20th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clei’k of the county of Kings on the 14th day of, November, 1902, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 17th day ■of November, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by James Costello from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of December, 1903, denying the appellant’s motion to be relieved from his purchase of the real estate sold upon a. judicial sale in the above-entitled action.

<p>Appeal by the plaintiff, Jane Bailey, from a judgment of the Supreme Court in favor of the defendant, entered in the office of ■ the clerk of the county of Orange on the 22d day of April, 1903, upon the decision of the court, rendered after,a trial at the Orange Special Term, dismissing the plaintiff’s complaint.</p>

<p>Appeal by the defendant, Stanley E. Kellar, from a final judgment of the Supreme Court in favor of the plaintiff, entered in the. -office of the clerk of the county of Kings on the 3d day of March, 1903, upon the report of a referee, dissolving a copartnership existing between the parties to this action and adjusting the partnership -accounts.</p>

Appeal 'by the defendant, Soeieta Oo-Operativa Oorleonese Francesco Bentivegna, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 8th day of June, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edmund C. Viemeister, from a judgment-of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 31st day of January, 1903, upon the verdict of a jury, and also from an order entere'd in said clerk’s office on the 16th day of January, 1903, denying the-plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Edward F. Linton, from a judgment of the Supreme Court in favor of the defendant, dntered in the office of the clerk of the county of Kings on the 18th day of June, 1903, upon the dismissal of the complaint by direction of the court, upon the pleadings, at the Kings County Trial Term. ■

Appeal by the defendant, The Hills Brothers Company, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 7th day of May, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 12th day of May, 1903, v denying the defendant’s motion for a new trial made upon the minutes.

Motion by the plaintiff, Charles Fisher, for a new trial upon exceptions ordered to be heard by the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, Dominico Calabur, from a judgment of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 20th day of July, 1903, upon the verdict of a jury. convicting the defendant- of the crime of assault in the first degree.

Appeal by The City of New York from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of October, 1903, directing the comptroller of the city of New York to pay into court certain awards for damages to real estate, together with interest on said awards from the date of the report of the commissioners of estimate and assessment until the day when such awards may or shall be paid…

Appeal by Abraham H. Sarasohn, the defendant in the second above-entitled proceeding, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of' Kings on the 16th day of November, 1903, directing a reference to ascertain and determine the lien of the appellant, an attorney, attaching to the amount offered in settlement of a judgment obtained in the first above-entitled action by Rosa Serwer against…

<p>Appeal by the petitioner, The Cathedral of the Incarnation in the Diocese of Long Island, from an order of the Supreme Court, . made at the Nassau Special Term and entered in the office of the clerk of the county of Nassau on the 22d day of October, 1903, quashing a writ of certiorari theretofore issued herein.</p>

<p>Costs of an appeal from, an order are “ costs of a motion”■ — the stay arising out of their non-payment becomes operative at the end, often days — when a motion made within the ten days should be granted only on condition that such costs be paid.</p> <p>The costs and disbursements of an appeal to the Appellate Division from an order of the Special Term are “ costs of a motion,” as those words are used in section 779 of the Code of pi vil Procedure, which provides that where the costs, of a motion are not paid within the time fixed by the- order, oi'j if no time is so fixed, within ten days after the service of a copy of the order, all proceedings on the part of the party required to pay such costs are stayed until the payment thereof.</p> <p>Where the order does not fix the time for the payment of the costs, the stay provided for in the section does not operate immediately upon the service of the order, but only upon the expiration of ten days after such service.</p> <p>Where, upon an appeal from an order obtained by the defendant in an action, the Appellate Division reverses the order and awards costs and disbursements of the appeal and costs of the motion to the plaintiff, without specifying any time for the payment of such costs and disbursements, and, within ten days after the entry of the order of reversal, the defendant, without paying the costs awarded by such order, applies for leave to renew Ms motion, the court should, as a condition of granting the desired leave, require the defendant to; . pay the costs and disbursements awarded by the order of reversal.</p> <p>The court has inherent power to require the payment of costs,. and to impose reasonable conditions for favors which it is atired to grant.</p>

<p>Appeal by the plaintiff, Agnes Ogle, from a judgment of the Municipal Court of the city of Hew York, borough of Richmond, in favor of the defendant, entered on the 21st day of April, 1903.</p>

<p>Award by commissioners of estimate and assessment in New York city — demon.'' necessary to. set interest running on the sum, awarded, —form of demand, where an assessment for benefits has been made — interest, how chargeable in such a. case.</p> <p>Under section 1001 of the Revised Greater New York charter (Laws of 1901, chap. 466), relative to awards made by the commissioners of estimate and assessment in a street opening proceeding, which directs, “ Interest shall cease to run on sums awarded as damages six months after the date of the confirmation of said report unless, within that time, demand therefor be made upon the comptroller," the provision for the payment by the city of interest after the expiration of six- months from the date of the confirmation of the report is in the nature of a penalty for withholding payment, and unless a proper demand is made upon the comptroller within six months from the date of the confirmation of the report, interest will cease to run upon the awards for damages. ,</p> <p>Where there has been, made an award of damages in favor of, and an assessment for benefits against, a party to such a proceeding, a written demand made by such party upon the comptroller, before the expiration of six months from the date of the confirmation of the report, for the payment of the award with interest from the date of the report, containing ho reference to the assessment for benefits, is not such a demand as will keep the interest running against the city on the award after the expiration of six months from the date of the confirmation of the report, as it includes more than the party can justly claim.</p> <p>In such a case the party.in question is entitled to the amount of the award, with interest for six months after the date of the confirmation of the report, less the assessment for benefits, with interest thereon at the rate of six per cent from the time interest accrued thereon until the expiration of six months after the confirmation of the report.</p>

Certiorari issued out of the Supreme Court and attested on the 4th day of December, 1902, directed to John H. Partridge, as police commissioner of the city of Hew York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the dismissal of the relator from the police department of the city of New York.

<p>Appeal by the Town of Eastchester and another from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 7th day of January, 1903, appointing commissioners to determine the amount of damages sustained by the petitioner by reason of the change of grade of a certain highway in the town of Eastchester, New York, in front of her premises.</p>

<p>Appeal by Aaron Levy and others, judgment creditors, from an order of the, Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 24th day of December, 1903, as resettled by an order entered in said clerk’s office on the 4th day of January, 1904, denying the appellants’ motion to vacate an order discharging William Asmus, a judgment debtor, from commitment for contempt of court.</p>

<p>Negligence—injury to an employee from an explosion in a tank—proof as to defects in the tank—knowledge of the master — time to remedy defects — his duty not to continue the employee in an insecure place—the duty of inspection is imposed on the master.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff's intestate, it appeared that the defendant used, in the process of manufacturing cream of tartar, a wooden tank twenty-two feet high and fourteen feet in diameter, suspended in the center of which was a copper cylinder two and a half feet in diameter; that the top of the cylinder was covered by a copper plate, about three feet in diameter and eight feet in circumference, which was fastened to the wooden top of the tank by wooden screws at intervals of about eight inches. The tank was filled with liquid which was heated by steam ■ ejected from two steam pipes which passed through a hole six by eight inches in the center of the copper plate. The hole was left open for the purpose of providing an outlet for the steam. During the manufacturing process, workmen stood on top of the tank for the purpose of shoveling ground argol into the hole.</p> <p>On the day of the accident, on of the regular shovelers being absent, the defendant’s foreman instructed th intestate to assist one Nelson, the other regular shoveler. Shortly before he accident, Nelson discovered that some steam was escaping from, under the edge of the copper plate and, after shutting off the steam, called the attention of the foreman to it. The foreman directed them to go ahead with the work and turned on the steam. Nelson and the intestate ■ then took up their shovels and almost immediately there was a leakage or explosion of steam and water. The copper plate tipped up, and steam and water shot out laterally from under it, and ^burned the intestate so that he subsequently died.</p> <p>There was evidence that the wooden top of the tank was rotten and that some of the wooden screws by which the copper plate was fastened thereto were loose; that the defendant knew that.the wooden top was rotten and that the screws did not hold very well therein; that the intestate had not been employed about the tank before the accident and that he did not hear the conversation between Nelson and the foreman with respect to the escaping steam.</p> <p>Held, that the questions of the defendant’s negligence and of the intestate’s freedom from contributory negligence were properly submitted to the jury, and that a judgment entered upon a verdict in favor of the plaintiff should be affirmed;</p> <p>That it could not be assumed, as matter of law, that the intestate could or should have known that the wooden top was rotten, or that the plate was insecurely fastened thereto, or that the slight escape of steam from the edge of the plate was an indication of approaching danger;</p> <p>That it could not be said that the act of the foreman in turning on the steam was the sole cause of the accident;</p> <p>That, in any event, the jury might say that the rotten condition of the top of the tank and the fact that the copper plate was not securely fastened thereto, were ' concurring- causes of the accident;</p> <p>That the jury might find that the defendant, in the exercise of reasonable care, should have known some time before the accident that the wooden top of the tank was rotten;</p> <p>That, in any event, having been apprised before the accident happened that the place in which the intestate was employed to work was unsafe, it was liable for continuing to offer such place to him, notwithstanding that it could not, with due diligence, have made the place safe before the accident happened.</p> <p>That the defendant could not delegate the duty of inspection, incumbent upon it, to an employee, in such a manner as to relieve itself from liability for the failure of the employee to perform properly that duty.</p>

Appeal by the defendant, the City of Mount Vernon, from a. judgment of the County Court of Westchester county in favor of the plaintiff; entered in the office of the clerk of the county of Westchester on the 15th day of April, 1903, upon the verdict of a jury for $770.70, and also from an order entered in said clerk’s office on the 15th day of April, 1903, denying the defendant’s motion for1 a new trial made upon the minutes.

<p> Action against a street railway company for the penalty imposed for a failure to ■ furnish a transfer ticket—the fact that the conducto^' has no transfers is not an excuse. </p> <p>In an action brought against a street railway company to recover the statutory penalty for failing to furnish a passenger with a transfer ticket, the fact that at the time the passenger asked for the transfer ticket the conductor of the car did not have any transfers left, will not, as a matter of law, absolve the street railway company from liability.</p> <p>In such an emergency, the conductor should, upon request, furnish the passen. ger with a slip stating that he had paid his fare, or make an oral explanation to the conductor of the car to which the passenger desires to be transferred.</p>

Appeal by. the plaintiff, Iona Strauss, as administratrix, etc., of ■John Strauss, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the -county of Dutchess on the 25th day of April, 1903, upon the dismissal of the complaint by direction, of the court after a trial at the Dutchess County Trial Term.

Appeal by the defendant, John Buckley, from a judgment of the County Court of Queens county, entered on the 8th day of May, 1901, upon the verdict of a jury, convicting the defendant of the crime of aiding and abetting an escape from jail in violation of section 87 of the Penal Code.

Appeal by the plaintiff, Virginia Stein, from a judgment of the. Supreme. Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the. 18th day of November, 1902, upon the decision of the court, rendered after a trial at the Queens County-Special Term, dismissing the complaint upon the merits.

<p>Life insurance — a policy accepted by the assured and then assigned to the agent of the insurance company who thereafter pays the premium^it is enforcible — it is not a wager policy — answer of the assured on a medical examination that he had a canlcer sore — it does not show that he had a cancer — burden of proof.</p> <p>In an action brought to recover upon a policy, of insurance issued by the defendant upon the life of one William R Plyer, which had been assigned to the plaintiff, it appeared that the plaintiff had been appointed general agent of the defendant, but that, with the knowledge of the defendant, the business of the agency was conducted by the plaintiff’s husband; that the plaintiff’s husband procured an application from Plyer for insurance to the amount of 512,500 upon the ordinary life plan; that the defendant refused to write this policy because of certain matters in Flyer’s family history and offered to write two twenty-year endowment policies for 52,500 each.</p> <p>The policies were written and delivered to the plaintiff’s husband. Plyer, on examining them, insisted that he desired a 510,000 regular life policy, but finally consented to take the policies. One of them he took absolutely and the other he took under an understanding that the plaintiff’s husband should take an assignment of the same and should carry it during the time that he was negotiating a 510,000 regular life policy, giving Plyer the option of buying the policy back by repaying the amount of the premiums. If the 510,000 policy was secured, then the plaintiff’s husband was to have the right to continue paying the premiums on the assigned policy, or to cancel it, as he might see fit. Pursuant to this arrangement, Plyer, at the suggestion of the plaintiff’s husband, executed an assignment of the policy to the plaintiff.</p> <p>Plyer died some months later, and the defendant paid the policy which he took absolutely, but declined to pay the policy -which had been assigned to the plaintiff.</p> <p>Skid, that the plaintiff’s husband, acting for the plaintiff with the knowledge of</p> <p>■ the defendant, and being in possession of the policy, was clothed with the authority of a general agent in taking applications and delivering policies, and that, as such general agent, he had the authority to waive the immediate payment of premiums;</p> <p>That, consequently, the fact that the first premium of the policy in suit was not paid at the time it was delivered, was, in the absence of fraud, immaterial, it appearing that this premium had subsequently been paid to and retained by the defendant with knowledge of the assignment of the policy;</p> <p>That the relation of the plaintiff to the policy in suit was not that of an agent of the defendant, but that of an assignee of Plyer, and that the question whether she paid anything for the assignment of the policy did not concern the defendant;</p> <p>That the policy which was made payable to the legal representatives of Plyer, having been delivered to him, became, on delivery to him, a valid contract, and that its assignment to the plaintiff did not render it void as a wager' policy.</p> <p>Plyer stated in his medical examination that he had never had a cancer, but told the medical examiner that he had had a canker sore on his tongue. He subsequently developed a cancer on his tongue and died from the effects of blood poisoning growing out of an operation.</p> <p>Held, that these facts did not establish that he had a cancer at the time of the examination or that he had'any reason to believe that the canker sore was, in fact, a cancel";</p> <p>That the burden of proof with respect to these matters was'upon the defendant.</p>

Appeal by the defendant, Daniel Keeshan, and by George L.Rives, corporation counsel of the city of Few York, from an order of the County Court of Queens county, entered in-the office of the clerk of the county of Queens on the 13th day of Fovember, 1903, setting aside the appearance of the corporation counsel of the city of Few York, as attorney for the defendant in this action, and requiring the said defendant to defend in person or by an attorney other than said…

Appeal by the defendant, Richard B. Constantine, as executor,, etc., of Andrew J. Constantine, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of May, 1903, upon the decision of the court, rendered after a trial at. the Kings County Special Term, sustaining the plaintiff’s demurrer to the third separate defense contained in the defendant’s answer.