Volume 92 — New York Appellate Division Reports

Appeal by Lillie G. Sloan from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 27th day of May, 1903, settling the account of the respondent and overruling the appellant’s objections thereto.

Appeal by The Long Island Loan and Trust Company, as executor, etc., of Daniel W. Eorthup, deceased, and another, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the'22d day of October, 1902, judicially settling the accounts of said executor.

Appeal by the defendants, Charles A. Matthies and others, as the board of town auditors of the town of White Plains, 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 1st day of November, 1902, granting* a peremptory writ of mandamus, and also from an order bearing date the 27th day of October, 1902, and entered in said clerk’s office, denying the defend»ants’ motion for a new…

<p>Appeal by the plaintiff, Samuel L. Van Akin, from a judgment of the County Court of Orange county in favor of the defendant, entered in the office of the clerk of the county of Orange on the 13th day of March, 1903, reversing a judgment of a justice of the peace of the town of Deerpark, in said county, in favor of .the plaintiff entered on the 5th day of May, 1902.</p>

<p>Marine insurance — restriction to “Mew'Haven harbor and adjacent inland waters,” construed — it does not authorize the use of the vessel in Bridgeport harbor.</p> <p>A policy of marine insurance upon a steam dredge containing the following provision, “Warranted confined to the use and navigation of the waters of New Haven Harbor and adjacent inland waters,” does not cover the sinking of the dredge in Cedar creek, an inland water, which is a part of or- an adjunct to Bridgeport harbor, where it appears that Bridgeport harbor is some seventeen miles and Cedar creek some eighteen miles west of New Haven harbor.</p> <p>In such a case it is as probable that the phrase “adjacent inland waters,” was the language of the insured as that it was the- language of the insurer, and under such circumstances the rule that the policy must be construed strictly against the insurer does not apply.</p>

Appeal by the-defendant, William Taylor, from a judgment of the County Court of Tioga county, entered in the office of the clerk of the county of Tioga on the 22d day of December, 1903, upon the verdict of a jury convicting the defendant of manslaughter in'the second. degree, and also from an order entered in said clerk’s office, on the 21st day of December, 1903, denying the defendant’s motion for a .new trial. The defendant was indicted for manslaughter in the first degree.

Appeal by the defendant, the McCormick Harvesting Machine Company, 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 20th day of May, 1903, upon the verdict of a jury for $5,875, and also from an order entered in said clerk’s office on the 20th day of May, 1903, as resettled by an order entered in said clerk’s office on the 11th day of June, 1903, denying the defendant’s motion for a new…

Appeal by the defendant, Mildred Hemmens, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 25th day of March, 1903, upon the decision of the court, rendered after a trial at the Saratoga Special Term, directing Josiah Gf. Salisbury, the administrator with the will annexed of Sarah J. Davis, deceased, to pay over to the plaintiff the full amount of the estate intrusted to him.

Reargument of an appeal by the defendant, George W. Rockwell, from a judgment of the County Court of Chemung county, entered I in the office of the clerk of the county of Chemung on the 22d day of March, 1898, reversing a judgment of a Justice’s Court in favor of the defendant, dismissing the plaintiff’s complaint. On the original argument the Appellate Division affirmed the judgment of the County Court without opinion (62 App.

<p>Appeal by the defendant, The People’s Go-operative 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 Albany on. the 11th day of May,- 1903, upon the verdict of a jury for $1,050.97, and also from an order entered in said clerk’s office on the 19th day of May, 1903, denying the said defendant’s motion for a new trial made upon the minutes.</p> <p>This action is brought on a promissory note of which the following is a copy:</p> <p>“New York, May 20,1902.</p> <p>“ $1000. * * * Five months after date we promise to pay to the order of Edward McCabe, One thousand dollars at Union Square Bank, N. Y., with interest. Value received.</p> <p>“ THE PEOPLE’S CO-OPERATIVE ICE COMPANY.</p> <p>“ S. Mehrbaoi-i, Prest.</p> <p>“ S. C. Blake, Treas.”</p> <p>There is no dispute about the execution of the note and its delivery to the payee. Edward McCabe, the payee, had been a regular ' customer of the plaintiff for eight or ten years. He kept an account at the bank and always had á balance to his credit. On the sixteenth day of October, four days before the note became due, McCabe, at plaintiff’s bank, presented the note to the cashier and asked him to discount it, and the note was accepted without further conversation and McCabe’s account was credited with the amount of the note less sixty-eight cents discount.</p> <p>When the note became due it was duly presented for payment at the Union Square Bank, New York, and payment demanded, which was refused, whereupon the note was duly protested for non-payment. On the seventeenth day of November McCabe again called at the bank and produced another note exactly the same in every respect as the one previously discounted except that it was payable six months after its date instead of five months after its date, and asked the cashier to discount it, and such note was accepted without further conversation, and McCabe’s account was credited with the amount less fifty-two cents discount.</p> <p>On O'ctober sixteenth, at the time the first note was discounted, McCabe had to his credit with the plaintiff $1,580.14. The amount placed to his credit on discounting said note was $1,024.32, making the amount to his credit with the plaintiff on that day $2,604.46. That amount remained without further deposits and without any ■checks being paid therefrom until the day the second note was discounted. When the second note was discounted the amount placed to the credit of McCabe as the proceeds of such noté was $1,029.48. On that day, whether before or after the credit of the second note ■does not appear, one check of $15 was paid by plaintiff. McCabe then had a balance of $3,618.94 to his credit. On October 29,1902, the plaintiff sued the defendant appellant and said McCabe on said first note.</p> <p>The complaint alleges the making and delivery of the note, its presentation for payment, and that payment was refused. McCabe ■did not answer or appear in the action, but the defendant appellant appeared in the action November 13 and served its answer December 11, 1902, and the answér of defendant appellant admits the making and delivery of said note and denies the other allegations of the complaint, and as a separate and distinct defense alleges in detail the making of an agreement in writing between the defendant appellant and said Edward McCabe and the giving by said defendant appellant to said McCabe of seven notes of like date and form, payable one each month, commencing August 20, 1902, and ending February 20, 1903, and it further alleges with isome detail the facts by which'it claims that the consideration for the giving of said notes wholly failed. The- note in suit is one of the seven notes so given. The deposit to the credit of McCabe in the plaintiff’s bank of $3,618.94 remained therein without change on November 21, 1902. On December 30, 1902, McCabe had a balance to his credit with the plaintiff of $4,403:93. At the time of the trial McCabe did not have any money on deposit with the plaintiff, but when the sariae was drawn from the bank does not appear, and it does not appear whether McCabe drew any money from his account with the plaintiff between November 21, 1902, and December 30, 1902. At the time the note was discounted, McCabe was not in any way indebted to the bank.</p> <p>The action was tried at the Albany Trial Term in April, 1903. On the trial after the facts as above stated were shown, and it was conceded by defendant that it had no further testimony that it desired to produce relating to plaintiff’s, knowledge of the maker’s defense to the note at the time plaintiff discounted the note, the court refused to allow the defendant to produce testimony relating to its defense and directed the jury to find a verdict in favor of the plaintiff for .the amount of the note with interest, and a verdict was found accordingly. A motion was made to set aside the verdict and for a new trial, which was denied.</p>

<p>Appeal by the defendants, the Hudson River Water Power 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 Saratoga on the 20th day of January, 1903, upon the decision of the court, rendered after a trial at the Montgomery Special Term, overruling the said defendants’ separate demurrers to the plaintiff’s complaint.</p> <p>The plaintiff’s complaint is very long. The following is a summary of the allegations thereof, so far as material, on this appeal: The plaintiff in or about February, 1898, became the owner of certain pulp and paper mills, situated at Glens Falls and Fort' Edward, N. V., and elsewhere, and for the purpose of enabling it to develop a water power for use in connection with its mills at Glens Falls and Fort Edward, it also purchased various properties and river rights scattered along the Hudson river between a point soiith of Sherman’s island and the south boundary of property formerly owned by the Hudson River Pulp and Paper Company at Palmer’s Falls, N. V., which property of the said Hudson River Pulp and Paper Company was also conveyed to the plaintiff. The various properties, and river rights of the plaintiff’s predecessor in title had been purchased largely through the agency and assistance of one Ashley; „ ■</p> <p>Thereafter the plaintiff purchased from other persons properties and river rights along said river, and attempted to obtain title to. all property and river rights which it deemed necessary for the full development of the water power between the points named. During the times aforesaid the plaintiff discovered that the defendant the Kanes Falls Electric Company and said Ashley had acquired, and were attempting, to acquire, 'other properties along said river in hostility to the plaintiff. Negotiations thereupon ensued which resulted in a contract dated the 1st day of May, 1899, between the plaintiff and the defendant Kanes Falls Electric Company, which contract recites that the parties thereto are respectively the owners of or that they control by agreement to purchase or Otherwise, in their own names or in the names of other persons representing them, various properties adjoining the Hudson river between the points mentioned, and that the parties had agreed to co-operate in purchasing and acquiring all the properties between the said points necessary for the full ownership, development and protection of all power which can be developed between said points and to complete the titles to said properties and divide said properties together with the costs thereof between the parties thereto in certain specified proportions, Said contract then provides for co-operation between the parties thereto in securing the titles to all of the properties not then owned by them or one of them by persons representing one of them at the lowest cost possible, so as to obtain and complete the titles to all of said properties and for sharing in the costs thereof as in and by the contract provided. And said contract also provides for the conveyance to the Kanes Falls Electric Company of that part of the property along said river front in said contract specified and known •as the “ upper power ” and for the conveyance to the plaintiff of that part of the property along said river front in said contract specified and known as the “ lower power.” And said contract also provides that the titles to said properties shall be completed as soon as possible and that conveyances thereof shall be made not later than August 1, 1899, and that if the title to any of said properties shall not be fully perfected by August first, it shall be completed thereafter as soon as possible at the joint expense of the parties thereto to be divided between them in the proportions in said contract provided. And said contract also provides that several of the properties, which will form portions of each power when fully assembled, stand either in title or by option of purchase in different persons for the benefit of said paper company and that it is the intention of the agreement that persons holding the same shall at once convey the same, and that the options then existing in favor of the paper company or of the electric company or of any one for their benefit shall be completed, with a view of fully completing the entire title to all the properties in order that the same may be divided as in the contract specified. Said contract was made nominally with the Kanes Falls Electric Company, but the negotiations were had with said Ashley, the ■ president of said company. The Hudson River Electric Company and the Hudson River Water Power Company were thereafter organized by said Ashley and the stock is substantially owned and controlled by him. The parties to the contract had not acquired all of the properties upon said river and were not ready to exchange.deeds therefor on August 1, 1899, and the time so to do was extended. In November, 1899, the parties to the contract had acquired -all the properties connected with the upper power and the greater portion of the properties connected with the lower power. At that time the defendant the Hudson River Water Power Company had been organized with Ashley as the president thereof, and it and said Ashley desired to obtain title to the properties connected with the upper power, by said contract to be conveyed to the Kanes Falls Electric Company, that they might be conveyed to said Hudson River Water Power Company. The money required for purchasing said properties had been chiefly if not entirely advanced by the plaintiff.</p> <p>Upon request a further contract was made between said Kanes Falls Electric Company and the plaintiff, which recited that the Kanes Falls Electric Company is about to deliver to the paper company its deed of the lower power, and that the paper company is about to deliver to the Trust Company of America a deed to the Kanes Falls Electric Company of the upper power, to be by the trust company held, subject to the payment of $125,000 by the Kanes Falls Electric Company, and it was in said contract further provided that certain properties connected with the lower power were still to be acquired, and that there appeared to-be outstanding of record certain mortgages on certain properties upon said river, and that there might be outstanding titles in both of said powers not at the time of making said contract known. It was agreed that the deed from the paper company to the Kanes Falls Electric Company should he delivered to the trust company and held by it subject to the payment of $125,000, of .which '$90,000 should be upon its receipt paid by the trust company to the paper company, and that the remainder of $35,000 should be held by the trust company until the accounts between the parties for the properties theretofore acquired and the property thereafter to be acquired in order to complete the said powers should be adjusted in accordance with the contract of May 1, 1899, and that after said adjustment of accounts the parties should unite' in k certificate to the trust company as to a division of said $35,000.</p> <p>It was further agreed that the title should be obtained and completed as speedily as possible of the properties connected with the' lower power that had 'not been acquired. In pursuance of said contract and in reliance upon the agreement on the part of said Ashley and the Kanes Falls Electric Company to assist and co-operate with the plaintiff in acquiring the remainder of the properties necessary to complete the lower power, and in the belief that the defendants would carry out such agreement in good faith the plaintiff executed and delivered on the 9th day of November, 1899, a deed conveying all of the upper power to the Kanes Falls Electric Company and the Kanes Falls Electric Company thereupon conveyed the same to the defendant Hudson River Water Power Company. The Hudson River Water Power Company took and received such conveyance with full knowledge of the agreement and of the obligation resting upon said defendants to co-operate with the plaintiff in acquiring the title to the remaining properties-necessary to complete the lower power. The Kanes Falls Electric Company at the time of the execution of the deed to it executed a conveyance to the plaintiff of the properties then- owned by it connected with said lower power. Subsequently the parties to said contracts adjusted the accounts between them, and at the time of such adjustment- it was agreed that there remained due the Kanes Falls Electric Company from the plaintiff a balance of $634.35. ■ On January 18, 1900, the parties to said contracts united in a direction to the defendant the Trust Company of America to pay over to the Kanes Falls Electric Company $30,000, and authorized it to retain in its hands the sum of $5,000 to be held as security for the repayment of the said Kanes Falls Electric Company’s proportion of the cost of the acquisition of the property still remaining to be acquired in order to complete the lower power. The plaintiff thereafter in consultation with the Kanes Falls Electric Company and said Ashley and in co-operation with them proceeded to acquire additional properties necessary to complete the lower power and complete its title to all of said properties, except to certain properties in the complaint described which it has been unable to acquire by reason of the fact that the Kanes Falls Electric Company and said Ashley wrongfully, and in disregard and in violation of said contracts, have through their agent acquired and conveyed to the Hudson River Electric Company, which last-mentioned, company refuses to convey the same to the plaintiff.</p> <p>On April 23, 1901, the Hudson River Electric Company was incorporated. On April 25, 1901, the said properties were by the defendants, in disregard and violation of said contracts, conveyed to said Hudson River Electric Company. On December 18,1901, the Hudson River Electric Company executed a mortgage to the defendant Morton Trust Conrpany, by which it conveyed to said trust company the said properties so connected with the lower power among others as security for the payment of certain bonds thereafter to be issued to an amount not exceeding $3,000,000. None of said bonds have yet been actually issued for value. When the properties in the complaint described were acquired by the Kanes Falls Electric Company the Hudson River Water Power Company and said Ashley or either of them, or for account of either of them, the defendants were bound by the said contracts to convey the same to the plaintiff and the title acquired by them became and was subject to and impressed with a trust in favor of the plaintiff. / The Hudson River Electric Company took title to said properties with full notice and knowledge of said contracts and with full knowledge of said trust and obligation on the part of the defendants named. The Hudson River Electric Company has refused and still refuses to make such conveyance to the plaintiff, although the plaintiff has duly demanded the same and offered to repay to the said defendant the consideration paid by it for the said properties. Said properties are not connected with other properties of the defendants and they are in nowise essential to their operation. The Kanes Falls Electric Company well knew that the whole purpose and intention on the part of the plaintiff in making the contracts mentioned in-the complaint and in executing and delivering the conveyance to the Kanes Falls Electric Company was to enable the plaintiff to. acquire title to the property necessary to a full development of the water power known as the lower power, and that by reason of the wrongful failure on the part of the Kanes Falls Electric Company and the Hudson River Water Power Company and said Ashley to convey or cause to be conveyed to the plaintiff the pieces of property- described in the • complaint, in disregard and violation of the agreement, the principal consideration for the conveyance by the plaintiff to the Kanes Falls Electric Company of the properties Connected with the upper power has wholly failed, and plaintiff is entitled to have the deed vacated and set aside on payment of $90,000 received as stated and on reconveying to it the properties received at the time of the exchange of deeds, and the plaintiff offers to-repay the said amount and reconvey said property upon receiving a reconveyance of the properties connected with the upper power from said Kanes Falls Electric Company.</p> <p>All the defendants have, or claim to have, some right, title or interest in or to the said property, but that the said right, title or interest, if any, is subject and subordinate to the rights of the plaintiff. The complaint demands judgment:</p> <p>First. That the court ascertain the cost to the defendant Hudson River Electric Company of the properties described in the complaint.</p> <p>■ Second. That the Hudson River Electric Company be decreed to convey the properties described in the complaint to the-plaintiff upon payment by the plaintiff of its proportion of the sums actually paid therefor.</p> <p>Third. That the Kanes Falls Electric Company be required to pay the remainder of the amount so paid for said properties.</p> <p>Fourth. That the amount so paid by the plaintiff and by the Kanes Falls Electric Company be paid to the Morton Trust Company and that said trust company on receipt of said amounts be required to execute and deliver to the plaintiff á release of said properties from the lien of their said mortgage.</p> <p>Fifth. That in lieu thereof the defendants the Hudson River "Water Power Company and the Trust Company of America, as trustee, be decreed to reconvey to this plaintiff all the property connected with the upper power, so called, conveyed to the KanesFalls Electric Company by this plaintiff by the said deed dated November 9, 1899, upon the payment into court by this plaintiff of said sum of $90,000, with interest thereon, and the conveyance by it to the defendant the Kanes Falls Electric Company of such properties as had been acquired by it prior to the making of said deed.</p> <p>Sixth. For such other relief as may be just and proper in the premises..</p> <p>Each of the appellants separately demurred to the complaint on two grounds:</p> <p>First. That it does not state facts sufficient to constitute a cause of action against the defendant demurring.</p> <p>Second. That, causes of action are improperly joined in this action.</p> <p>The issues of law joined by the service of the demurrers were tried and ah order was entered overruling the demurrers, upon which orders interlocutpry judgments have been entered.</p>

Appeal by the petitioner, Edward D. Oandee, as receiver of the Anglo-American Savings and Loan Association of New York, 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 Albany on the 14th day of November, 1903, denying the petitioner’s application for a writ of peremptory mandamus. Edward D. Oandee was appointed permanent receiver of the Anglo-American Savings and Loan Association on the 5th day of .

<p>Appeal by the defendant, Harrison Wells, from an order of the County Court of Cortland county, entered in the office of the cleric of the county of C°rtiand on the 30th day of September, 1903, denying the defendant’s motion to set aside the taxation of plaintiff’s costs and refusing to direct a new taxation of defendant’s costs.</p> <p>This action was commenced in Justice’s Court. The plaintiff in his complaint alleged that the defendant was indebted to him for a quantity of cabbage sold and delivered to the defendant at the agreed price of $116. The defendant by his answer denied the allegations of the complaint, and the answer further alleged : “ The defendant says that he promised and agreed to buy a carload of cabbage of the plaintiff at $7.50 per ton, provided they were first quality in every respect, and said to the plaintiff that he had not seen the cabbage in question and would not buy to lose any money on said cabbage and would not pay anything on said cabbage until he had a report from the sale of said cabbage, and if the car sold for less than $7.50 a ton the plaintiff was' to stand the loss, to which the plaintiff agreed.</p> <p>“ That in truth and in fact said cabbage in question was ■ small, soft and poor and not merchantable or marketable, as the plaintiff had represented, so that defendant lost not only a legitimate profit but only received the sum of $47.04 from the sale of said' cabbage.</p> <p>“ That by reason of the said misrepresentation the defendant has suffered loss and damage in the sum of $125.00 which he seeks to recover of the plaintiff.”</p> <p>The plaintiff obtained a judgment in the Justice’s Court for $116 besides costs. The defendant appealed an'd demanded a new trial in the County Court, and within fifteen days after the service of the notice of appeal and on February 16, 1894, served upon the plaintiff an offer to allow judgment to be taken against him for the sum of $65. Plaintiff did not accept the defendant’s offer, or servé an offer of judgment upon the defendant. The action was tried in the County Court and resulted in a verdict of $82.43 in favor of the plaintiff. A motion was made before the judge presiding at the trial on his minutes to set aside the verdict and for a new trial, which motion was granted. On the second trial in the County Court a verdict was rendered in favor of the plaintiff for $117.82. An appeal was taken from the judgment entered thereon to this court, and the judgment was reversed and a new trial granted, with costs to abide the event. {Bose v. Wells, 36 App. Div. 593.) The court in its opinion say: “We think it proper to say if the plaintiff’s version of the case is true, that there was a sale of the cabbages at seven dollars and fifty cents per ton with warranty of their condition — that is that they were in fair merchantable condition, not poor or damaged stock, and if there was a breach of the warranty, the defendant was entitled to set off against the contract price his damages caused by such breach of the warranty.”</p> <p>On the third trial in the County Court a verdict was rendered in favor of the plaintiff March 21, 1900, for seventy-five dollars. After the last trial the plaintiff and defendant each presented to the clerk of the court the items of his costs and disbursements for taxation. The clerk refused to tax the defendant’s costs, but taxed the costs of the plaintiff. A motion was made by the defendant to set aside the taxation of plaintiff’s costs and to direct the taxation of defendant’s costs, which motion was denied, and from the order entered thereon this appeal is taken.</p>

Appeal by the defendants, Eugene Way and others, composing the Board of Inspectors of Election in Election District No. 4 of the Town of Ulster, Ulster County, New York, and others, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 23d day of November, 1903, directing the issuance of a peremptory writ of mandamus.

• Appeal by the defendant, the York State Telephone Company, 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 1st day of August,, 1903, upon the decision of the court, rendered after a trial at the Broome Special Term, awarding the plaintiffs a perpetual injunction.

<p>Trust giving the henejieia/ry the rigid, on notice.to the frustee that he desires to use the trust fund in his business, to have such principal — the title to the trust fund, whether real or personal, vests in the beneficiary — creditor’s action to enforce a judgment against the fund— when the fact that residuary legatees are not made parties is not a ground of objection — burden of proof that they are alive.</p> <p>A testatrix devised all her estate, which consisted entirely of personal property, to her executor, Albert L. Cameron, in trust, for the following purposes:</p> <p>“ Second. I hereby will and direct the said Albert L. Cameron to pay over to my husband, Charles E. Cameron, semi-annually, all of the.income, rents, issues and profits of my said estate, and so much of said principal sum as may be necessary for his support and .maintenance for and during the term of his natural life.</p> <p>“Third. I further will and direct that whenever the said CharlesE. Cameron shall desire to engage in any business • or enterprise, and shall give notice — thus—to the said Albert L. Cameron, that he desires the Whole or any part of such principal sum — for such purpose, it is my will and in that case I hereby direct the said Albert Cameron to' pay over and deliver to the said Charles E. Cameron-the amount so desired by him out of the principal sum so given to him in trust by. the first clause hereof.”</p> <p>The will further provided that the trustee should pay all the funds that remained - in his hands after the death of Charles E. Cameron to certain residuary legatees. Held, that a valid trust was created by the 2d clause of the will;</p> <p>That the provision of the 3d clause of the will giving Charles E. Cameron the right to demand possession of the fund if he desired to engage-"in any business or enterprise,” was so broad and so personal to, the beneficiary that it was equivalent to a direction thai he was entitled to possession of the• fund whenever he asked for it;</p> <p>That if the trust fund consisted of realty, an attempt to give the beneficiary absolute control over the trust fund, would, under sections 72, 73 and 129 of the Heal Property Law (Laws of 1896, chap. 547), have rendered the entire trust void and caused the title to the whole property to vest in the beneficiary instead of in the trustee;</p> <p>That, although the trust fund consisted entirely of personal property, the samé principle would be applied;</p> <p>That a judgment dismissing a complaint, in an action brought-by a judgment creditor of the beneficiary to enforce his judgment against the trust fund, would not be sustained upon the ground that the residuary legatees had not been made parties to the action, it appearing that, although that defense was set up in the answer, no evidence was given that the legatees were living and also that the decision of the trial court was placed upon the sole ground. that the beneficiary had no property in the trust fund;</p> <p>That a defense that necessary parties are not joined is in the nature of a plea of abatement and must be proved.</p> <p>Houghton, J., dissented. .</p>

Appeal by the plaintiff, Benjamin E. Hall, from 'a 'judgment, of the Court of Claims of the State of New York in favor of the plaintiff for $2,958.80, entered in the office of the clerk of said court on the 15th day of September, 1903, the amount of. the award being claimed by the appellant to be insufficient..

<p>Negligence — a passenger on a street ear injured by a, collision between such car and a ca/r attempting to pass by a crossover switch, due to its rea/r truck following the switch track instead of the main track — liability of the one company owning the railroad and of the other using it under a traffic agreement — respective obligation, to the person injured, of the two companies — res ipsa loquitur — excessive speed.</p> <p>In an action brought against the United Traction Company and the Schenectady Railway Company, to recover damages for personal injuries sustained by the plaintiff, it appeared that the United Traction Company operated a double-track street railway in the city of Albany, and' that the Schenectady Railway Company operated its cars over the traction company’s tracks under a traffic ' agreement which devolved upon the traction company the duty of keeping in repair the tracks and switches; that at the time in question the traction company was engaged in repairing a portion of its west-bound track, and that both east and west-bound cars were obliged to use the east-bound track; that one of' the traction company’s west-bound cars, upon which the plaintiff was a passenger, had crossed over to the east-bound track and proceeded to the east end of a permanent crossover leading from the east-bound to the west-bound track; that an east-bound car of the Schenectady Railway Company had just been transferred over the permanent crossover to the west-bound track and had stopped, with its east end about ten feet west of the west end of the crossover; that some person, apparently acting on behalf of the traction company, threw the point of the tongue of the switch in the crossover, so that the Schenectady company’s car could be run easterly on the west-bound track past the permanent switch, for a distance sufficient to permit the traction company’s car to cross over to that track and proceed westerly thereon; that there being a steep grade descending toward the east, the .motorman of the Schenec- ■ tady car started it by letting off the brake without applying any power; that the front trucks of the car passed over the tongue of the switch properly, but that when the fear trucks reached the tongue it had' evidently moved out of position, so that the rear truck took the crossover instead of the west-bound track, throwing the rear end of the car against the traction company's car and causing the plaintiff to receive injuries.</p> <p>Held, that a judgment against both defendants should be affirmed;</p> <p>That the plaintiff, being a passenger on one of the traction company’s cars, that company was bound to use the' utmost human skill and foresight with reference to maintaining, operating and keeping in repair its tracks and switches, in order to save him from- harm;</p> <p>That the tongue of the switch having failed to remain' in position, or having been misplaced because of some unexplained or unascertained cause, it was. not incumbent upon the plaintiff, as against the traction company, to show the cause of the displacement;</p> <p>That, under the doctrine of ves ipsa loquitur, the traction company was required to explain the cause of the displacement, in order to relieve itself from the presumption that its negligence caused the accident;</p> <p>That, with respect to the plaintiff, the Schenectady Railway Company was only bound to use reasonable and ordinary care with respect to the circumstances confronting it at the time;</p> <p>That it bore the same relation to the plaintiff as' if he had been driving his own horse and wagon upon the street instead of being a passenger upon one of the traction company’s cars;.</p> <p>That, in view of the heavy down grade, the weight of the Schenectady car, and the knowledge of the motorman that the switch was not fitted with appliances to hold the tongue in place, and that, when , running against the point of the tongue instead of against the heel thereof, he was' using the switch in a manner in which it was not intended to be used, reasonable and ordinary care required the motorman- to proceed very slowly and to keep his car under control;</p> <p>That, under the circumstances, negligence on the part of the motorman might be based upon the fact that he testified that his car was moving about three or four miles an hour when he discovered that the rear truck had taken the crossover.</p> <p>Houghton, J., dissented as to the liability of the Schenectady Railway Company.</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 Albany on the 15th day of January, 1903, upon the ■ verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 23d day of January, 1903, denying the defendant’s motion for a new trial made- upon the minutes.

Appeal by the defendant, the Troy City 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 Rensselaer on the 28th day of March, 1903, upon the verdict of a jury for $800, also from an ’ order entered in said clerk’s office on the 28th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 18th day of…

Appeal by the defendant, Nathan L. Miller, as Comptroller of the State of New York, 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 Albany on the 28th day of September, 1903, denying the defendant’s motion to amend a writ of certiorari theretofore granted herein.

Appeal by the'petitioner, John Giles Ford,, from an. order of the Supreme Court, made at' the Broome Special Term and entered in the office of the cleric of the county of Delaware on the 21st day of , December, 1903, denying the petitioner’s application for a peremptory writ of mandamus. . ... The relator is the proprietor of a Republican newspaper published in the county of Delaware known as the Stamford Recorder.

Certiorari issued out of the Supreme Court and allowed on the 19th day of November, 1902, directed to The Board of .

<p>Appeal by Charles E. Farrell, Jr., by Charles E. Farrell, his guardian ad litem, from an order of the County Court of Saratoga County, entered in the office of the clerk of the county of Saratoga on the 14th day of September, 1903, discharging Peter S. Quick,' a jiidgment debtor,-from imprisonment.</p> <p>On June 1, 1903, Peter S. Quick was arrested upon an execution against his person, for debt in the su,m of $2,221.55, at the suit of Charles E. Farrell, Jr., by his guardian ad litem Charles E. Farrell, and was imprisoned in the jail of Saratoga county. Upon September 4, 1903, lie procured an order from the county judge of that county, in substance, requiring said Farrell, by his guardian, to show cause at a Special Term of the County Court of that county to be held at the court house in such county on the 14th day of September, 1903, at ten o’clock a. bí., why an assignment, of the property of said Quick should not be made and he be thereupon discharged from his said imprisonment pursuant to the provisions of the statute concerning the “ Discharge of an imprisoned judgment debtor from imprisonment.” (See Code Civ. Proc. chap. IT, tit. 1, art. 3.)</p> <p>Such order was procured upon an affidavit of Quick, setting forth in substance that he was imprisoned, as above stated, that the next term of the County Court began on the 14th of September, 19.03, and that he desired to present his petition for discharge at such term; ■ that another term of said court would not be held until the first Monday in October; that he had no money to apply at a term of the Supreme Court, and that he would suffer greatly if he was compelled to wait and be longer deprived of his liberty. ■ He, therefore, asked for such order to show cause, and that a shorter notice than fourteen days be deemed sufficient.</p> <p>The order so obtained, together with a copy of the petition for his discharge and the schedules annexed, were served upon the judgment creditor on September fourth, and on the fourteenth Quick was ordered before the County Court and presented thereto his petition and schedules and the affidavit required by section 2204 of the Code. The judgment creditor, Farrell, then appeared specially for the purpose of objecting that the fourteen days’ notice required by statute had neither been given to nor served upon him or his attorney, and that the court had, therefore, no jurisdiction to proceed with the proceedings for discharge, and that the order to show cause was not warranted in these proceedings. The court overruled such objection and ordered that the matter proceed to a decision. The judgment creditor thereupon ■ withdrew, and such proceedings were taken that Quick was ordered discharged from imprisonment. From such order of discharge this appeal is taken.</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 of the county of Saratoga on the 15th day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Witness — Ms refusal to answer questions on cross-examination requires the rejection of Ms testimony in chief—the consent of the party calling him that he he compelled to answer does not alter the. rule — effect of the presence of other testimony sufficient to sustain the judgment.</p> <p>A party has the right to cross-examine a witness produced against him by' his adversary, and to have an answer to pertinent questions relating to testimony given on his direct examination. The penalty for a denial of this right is the rejection of the testimony given in chief!</p> <p>In an action brought by a wife against her husband to obtain a separation, the latter interposed a counterclaim for an absolute divorce.</p> <p>On the trial the defendant called as a witness the co-respondent, and proved by him facts from which the only legitimate inference was that the plaintiff had committed adultery with him as alleged. On cross-examination the plaintiff asked of the witness the direct question whether he did have intercourse with the plaintiff at the time testified to by him. The witness declined to answer. The plaintiff pressed the question and requested the court to direct the witness to answer, which the court did, the witness still refusing. The request that the witness be compelled to answer was repeated, and an exception taken to the refusal of the court to do so, to which the court replied that he had not refused, and directed that.the examination proceed. The witness still declining to answer, the plaintiff moved that his direct testimony upon the point involved be stricken from the record, which motion was denied and an exception taken.</p> <p>Held, that the court should either have compelled the witness to answer or should have stricken from the record his evidence on the subject^ and that his refusal to do so constituted an error requiring the reversal of a judgment awarding the defendant an absolute divorce;</p> <p>That the judgment would not be permitted to stand, although it appeared that the defendant was willing that the witness should be compelled to answer; That, as it did not appear that the court did not consider the testimony of the recalcitrant witness, the error could not be said to be harmless, even though there was sufficient other evidence of the plaintiff’s adultery.</p>

Appeal by the ■ defendant, Jay E. Klock, 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 15th day of October 1903, denying the defendant’s motion to change the place of trial of the action from the county of New York to the county of Ulster.

<p> Removal of steel beams from a building existing on real property at the time of the execution of a mortgage thereon—right of the mortgagee to sue therefor without alleging insolvency on the part of the mm'tgagor—measure ofdam&ges—when it is the cost of restoration and when the diminution in market value. </p> <p>In:an action brought by the holder of a bond and mortgage to recover damages for injuries done to the mortgaged premises, it appeared that the defendant, after having been served with the summons and complaint in an action to foreclose the mortgage, removed from, the mortgaged premises a number of steel beams and lintels which had theretofore, before the execution of the mortgage, been incorporated into the building. The complaint in the action did not allege the insolvency of the mortgagor, but did allege that the value of the plaintiff’s security was impaired by the defendant’s acts.</p> <p>Held, that the foundation of the action was the impairment of the security of the mortgage with knowledge of the lien, and that it was not incumbent upon the plaintiff to allege the insolvency of the mortgagor;</p> <p>That the admission over the defendant’s objection of proof of the mortgagor’s insolvency did not require the reversal of a judgment in favor of the plaintiff;</p> <p>That evidence of the cost of restoring the mortgaged premises to their former condition and of the diminution in the market value thereof was admissible;'</p> <p>That if the host of repairing the injury was less than the diminution in the market value, the .cost of repair, with an allowance for the loss of the use of the property in consequence of the injury, was the proper measure of damages, but that if the cost of repair was more than the diminution, in the market value, the latter was the true measure of damages;</p> <p>That if the plaintiffs proof was confined to one of these two methods of ascertaining the damages, and the defendant failed to offer any proof as to the other method or to raise any question on the trial as to the failure of the plaintiff to supply it, the defendant could not avail himself of such omission on appeal.</p>

<p>Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 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.</p>

Appeal by the defendant, Neptune B. Smyth, from a judgiáent of the Supreme Court in favor of the. plaintiff, entered in the office, of the clerk of the.county of New York on the 18th day of May, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 28th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John L. B. Mott, 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 October, 1902, upon the verdict of a jury for §1,500, 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.

<p>Appeal by the plaintiffs, George Hitching and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York on the 28th day of March, 1902, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendant, William Fiss, 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 December, 1903, denying the defendant’s motion “for judgment dismissing the plaintiff’s complaint with costs upon the counterclaims contained in the defendant’s answer herein, or for such other and further relief as to the court may seem proper.”

Appeal by the defendants, Elizabeth M. Bunting and another, as executrices, etc., of Ella F. Bunting, deceased, 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 12th day of October, 19.03, 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 22d day of October, 1903, denying the defendants’ motion for a new trial made upon…

<p> Trustee in bankruptcy—his remedy to recover property, transferred by the bankrupt to a creditor in violation of the Bankruptcy Law, is in equity. </p> <p>With respect to the property transferred by a bankrupt to a creditor in violation of subdivision b of section 60 of the Bankruptcy.Law, providing, “If a bankrupt shall have given a preference within four months before the filing of a petition, * * * and the person receiving it * * * shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee and he may recover the property or its value from such person,” the trustee in bankruptcy is not, by the mere force of his appointment, invested with the legal title or the right to the possession of the property so transferred, but is permitted to regard the transfer as voidable at his election.</p> <p>The remedy of the trustee with respect to such property is by an action in equity and he is not obliged to resort to an action at law.</p> <p>Qum'e, whether he could maintain an action at law.</p>

Appeal by the relator, Peter Spies, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of Hovember, 1903, dismissing a writ of .habeas corpus theretofore issued herein.

Appeal by the defendant, The Edison Electric Illuminating 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 $16,000, and also from añ order entered in said- clerk’s office on the 4th day of Juné, 1903, denying the defendant’s, motion for a new trial made upon the minutes.

Appeal by the defendant, The Garvin Machine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county or New York on the 14th day of April,'1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of April, 1903,' denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Bobert A. Ammon, 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 29th day of June, 1903, convicting the defendant of the crime of receiving stolen property, and also from an order denying the defendant’s motions for a new trial and in arrest of judgment.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of thé Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 29th day of May, 1903, upon the verdict of a jury for $25,000, and also from an order entered in said clerk’s office on the 28th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, John F. O’Rourke, 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 decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

Appeal by the defendants, Rudolph Gross and Alexander J. Gross, doing business under the firm name and style of The American Conserve 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 30th day of November, 1903, granting an injunction pendente lite.

Appeal by the defendant, Daniel Krakauer, 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 10th day of March, 1903, upon the verdict of a jury for $14,000, which amount was thereafter by stipulation reduced to $10,000, the court having granted a motion for a new trial unless the plaintiff should make such stipulation, and also from two orders entered in said clerk’s office on the 20th day of…

Appeal by the plaintiff, Bertha Smith, 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 6th 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.

Appeal by the plaintiff,'Charles W. Purdy, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of New York on the 15th day of January, 1904, denying the plaintiff’s motion for a stay of proceedings in an action brought by Richard K. Baker, the defendant herein, against the plaintiff in the county of Schuyler.

Certiorari issued out of the Supreme Court and attestéd on the 3d day of March, 1903, directed to Francis Y. Greene, as police commissioner of the police department 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 removing the relator from the police force of the police department of the city of New York.

Appeal by the defendant, Edward A. Brown, 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 New York on the •1st day. of December, 1903, denying the defendant’s motion to dismiss the plaintiff’s complaint.

Appeal by the defendant, Edward A. Brown, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of December, 1903, denying the defendant’s motion to dismiss the plaintiff’s complaint.

Appeal by the defendant, The Hanford Produce Company, from a 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 11th day of May, 1903, upon the verdict of a jury, 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, the Metropolitan Streét 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 oil the 1st day of June, 1903, upon the verdict of a jury for $7,500, and also from an order entered in said clerk’s office on the 23d day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lizzie Gr. Brown, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the cleric of the county of New York on the 30th day of September, 1902, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, David H. Hyman, 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 September, 1903, upon the report of a referee, directing the specific per- ■ formance of a contract for the; purchase of certain real property.

Appeal by the plaintiffs, Edward L. Gilbert 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 2d day of July, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiffs’ complaint.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Suprénie Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 22d day of June, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 12th day of June, 1903, denying the defendant’s motion for a new ..trial made upon the minutes. ’ '

<p>Appeal by the defendants, the Tradesmen’s National Bank of the City of New York 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 7th day of December, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendants’ demurrers to the plaintiff’s complaint.</p>

Appeal, in each case, by Joseph B. 0. Tuell, 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 in the first above-entitled action on the 19th day, of October, 1903, denying the relator’s motion for an order appointing a referee to take the testimony of John Overton Paine and one Ignatius L. Qualey, and in the second above-entitled proceeding on the 14th day of October, 1903, denying the…

<p>Appeal by the defendant, the Third Avenue Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of New York on the 7th day of July, 1903, upon the verdict of a jury for $3,500, and-also from an order entered in said clerk’s office on the 1st day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes, and granting the plaintiff’s motion for an extra allowance.</p>

Cross-appeals by the plaintiff, George H. Gillette, and by the defendants, Horatio T. Hoyes and others, from portions of 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 15th day of December, 1903, as resettled by an order entered in said clerk’s office on the 21st day of December, 1903, granting a temporary injunction.

<p>Appeal by the plaintiff, the Lincoln National Bank, 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 12th day of May, 1903, upon the verdict of a jury, and also from an order-entered in said clerk’s office on the 12th day of May, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Nellie M. Coyle, 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 20th day of November, 1903, denying the plaintiff’s motion for leave to serve an amended complaint.

Appeal by the plaintiff, Milton L. Bouden, 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 8th day of January, 1904, granting a joint motion on behalf.of Henry B. Sire and the defendant Leander S. Sire to amend the summons and complaint without prejudice to proceedings already had regarding the other defendants, by making said Henry B. Sire and one Edward R. Thomas parties…

Appeal by the defendant, Annie Donohue, 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 June, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, decreeing a' foreclosure and sale of the premises described in the complaint.

<p>Appeal by the defendant, Luke A. Burke, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, as holds that the mechanic’s lien filed by the appellant against the property of the respondent is a good and valid lien only to the extent of $226, and directs the foreclosure of the said lien for that amount.</p>

<p>Appeal by the defendants, James McKane and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 6th day of September, 1901, upon the decision of the court, rendered after a trial at the Kings County Special Term, setting aside as fraudulent certain deeds, and also from an order entered in said clerk’s office on the 6th day of September, 1901, amending the summons and amended complaint herein, with notice of an intention on the part of the defendant Fanny McKane to bring up for review upon such appeal the above-mentioned order amending the summons and amended complaint and also two orders entered in said clerk’s office on the 2d day of October, 1901, denying said defendant’s motion to postpone the trial of the action. Also a separate appeal by the defendant Fanny McKane from the two last-mentioned orders denying said defendant’s motion to postpone the trial.</p> <p>The appeal in this action was transferred from the second department of the Appellate Division to the first department.</p>

<p> An unlawful combination enjoined from spying upon another person’s business. </p> <p>Members of a combination, who, after such combination has been declared unlawful by the Court of Appeals, for the purpose of carrying out the objects of such illegal combination, spy upon another person's business, thereby seriously injuring it, will be enjoined from persisting in such espionage.</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the deféndants, Orlando W. Xor cross, doing business under the name of 3STorcross Brothers, 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 Hew York on the 8th day of June, 1903, upon the decision of the court rendered after a trial' at the Hew York Special Term, with notice of an intention on the part of the defendant Horcross to bring up for review úpon such appeal ■ an order entered…

Appeal by the defendants, Rudolph Gross and another, doing business under the firm name and style of The American Conserve 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 23d day of December, 1903, adjudging the defendants guilty of a criminal contempt of court in. disobeying an order entered in this action on the 30th day of Hovember, 1903.

<p>Appeal by the defendants, William F. Norton and another, from an order of the Appellate Term of the Supreme Court, first department, entered in the office of the clerk of said court on the 9th day of November, 1903, as resettled by an order entered in said clerk’s office on the 25th day of November, 1903, affirming 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 9th day of March, 1903, and also (as stated in the notice of appeal) from a judgment entered in the office of the clerk of the said Municipal Court on the 14th day of November, 1903, upon said order of affirmance.</p>

<p>Appeal by the defendant, Marion E. D. Van Dyke, 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 4th day of January, 1904, as denies said defendant’s " motion to vacate and set aside a judgment of foreclosure and sale theretofore entered in the action as well as the sale had thereunder.</p>

Appeal by the Lawyers’ Surety Company of Hew York from an order of the Surrogate’s Court of the county of Hew York, entered in said Surrogate’s Court on the 25th day of Hovember, 1903, granting letters of administration upon the estate of Rose Ferrigan, deceased.

<p>Letters of administration—they will not be granted, on ths, application óf a nonresident alien to the puSlic administrator—the public administrator or next of hiñmüst petition therefor■—a claim against an estate■ within the jurisdiction ■of a surrogate is, property within his county— the public administrator is “ contingently" entitled to letters.. ■</p> <p>Rose Ferrigan, a resident of the city of New York, who had personal property therein, died, leaving as> her sole next of kin a sister, Margaret Kehun, residing at Dundalk, Ireland. John Flynn of Providence, R. L, was appointed administrator of her estate and acted, as sole administrator until his death,, which occurred July 7, 19.02. •</p> <p>The said Margaret Kehun died September 24, 1902. Prior to her death, she assigned all her interest in the Ferrigan estate to one Sheridan, a resident of Dundalk, Ireland.</p> <p>At the time Flynn died, there was pending, undetermined/a proceeding by him for an accounting as. administrator, in which proceeding he had interposed a claim of upwards of §6,000 against the Ferrigan. estate which consisted of upwards of §9,000. After Flynn’s death, Sheridan, through an attorney, filed .a petition in the Surrogate’s Court, in which he asked that letters of administration he issued upon Flynn’s estate to the public administrator, which application was. opposed by the next of kin of Flynn.</p> <p>Held, that, the Surrogate’s Court had no jurisdiction,, upon such application, to grant letters of administration upon the estate of Flynn to the public administrator unless some one or more of the next of kin of Flynn should apply for. .such letters within a specified time;.</p> <p>That Sheridan being a non-resident alien, the surrogate could not issue letters to him nor entertain a petition presented by him or another acting in his behalf for the issuance of letters;</p> <p>That the existence of the claim made by Flynn against the estate was sufficient to give the Surrogate’s Court jurisdiction, upon a proper application, to issue' letters of administration upon his estate;</p> <p>That the public administrator was absolutely or contingently entitled' to letters and that, upon an application duly filed by him, letters could be issued to him unless the next of kin of Flynn should see fit to make the application.</p>

Appeal by the defendants, John W. Simpson and .another, as executors, etc., of John G. Moore, deceased, and others, front an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York ■on the 21st day of July, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the -demurrers interposed hy the said defendants to the plaintiffs’ ■complaint.

Appeal by the plaintiff, the New York Bank Note 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 8th day of December, 1903, sustaining the defendants’ exceptions to the report of a referee theretofore appointed .herein and denying the plaintiff’s motion to confirm said report., x

Appeal by the defendant, Francis S. Kinney, from a judgment of - the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 13th day of February, 1902, upon the report of a referee. '

Appeal by the defendant, The Prudential Insurance Company of America, 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 lYth day of July, 1903, granting the plaintiff’s motion to amend the summons and complaint in the action and to bring in as an additional party defendant Sara Fehrman, as administratrix, etc., of Max Fehrman, deceased.

Appeal by the defendant, Arthur L. J. f3mjth, from an order of the Supreme, (p.ourt, made at the Hew York Special Term and entered in $§ office of the clerk of the county of, HeV York on the 6th day of January, 1901, awarding to the plaintiff a cpunsel fee and temporary alimony.

Appeal by the plaintiffs, The People of the State of Hew York ■ex rel. Coleridge A. Hart and said Coleridge A. Hart, 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 31st day of December, 1903, upon the decision of the court,, rendered after a trial at the Hew York Special Term, sustaining the defendants’ separate demurrers to the plaintiffs’ complaint and dismissing the said complaint.

Appeal by the plaintiff, Julius Wolff, 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 12th day of September, 1903, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the defendants, the John H. Parker Company and others, from a judgment of the Supreme Court in favor of the defendants, Albert Oliver and Cornelius A. Burr, doing business under the firm name of Oliver & Burr, entered in the office of the clerk of the county of New York on the 14th day of May, 1903, upon the report of a referee.

<p>.Power of an executor to compromise a claim against his .testator’s estate—the-Surrogate’s Gourt may authorize it — when a payment of §60,000 to settle a •claim for-an entire estate 'of $3,000,000 is proper — appeal from a surrogates order—in-order’to bring up the facts for review the notice should‘show an intention to do so.</p> <p>Independent of statute, an executor or administrator has the power to compromise -and adjust claims made either against or in favor of the estate represented by him; the .only .risk which he assumes .in so doing is that-unless Ms. action in this respect is -sustained by a court having jurisdiction of the subject-matter, he will he subjected to a personal liability.</p> <p>Section 3,719 of the Code of Civil Procedure as amended by chapter 686 of the-Laws of 1893, providing: “The surrogate may authorize the executor or - administrator to compromise or ¡compound a -debt or claim on application and for good and sufficient cause shown," confers 'upon a surrogate the power to permit an executor or administrator to compromise and .compound a claim, against the estate.</p> <p>Under what circumstances it is proper for a surrogate to authorize the administrators of an estate amounting to nearly $3;000,'000'to compromise for $60,000' a claim ¡presentedagainst the estate for the entire amount thereof, .considered. Semble, in view of the provisions of the Code of Civil Procedure allowing an, appetil fromia decree or order of ’the Surrogate’s Court to be taken'upon questions of law or upon the facts, and conferring on the appellate court, if the-appeal is taken on the facts, the same power to decide the questions of fact. ■ which the surrogate "had, thatan appeal from.an order or decree of the Surrogate’s Court will be treated as one upon questions of law unless the notice of" appeal contains a statement that the appellant desires to review the facts.</p>

Appeal by the defendants, Charles L. Hyde and another, 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 3d day of July, 1903, upon the decision of the court, rendered after a trial at the Hew York Special Term, directing an accounting by the defendants of certain stocks.

Appeal by the- defendant, Robert Gibsón, as general partner of the limited partnership of H. Knickerbacker & Co., from a judgment of the Supreme Court in favor of the plaintiff' and against both defendants, and as between the defendants in favor of the defendant the Chesapeake and Ohio Railway Company, entered in the office of the clerk of the county of New York on the 22d day of July, 1903, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the defendant, the. Dime Savings Bank of Brooklyn, 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 upon the; verdict of a jury,, and also from an order entered in said clerk’s office, denying the. defendant’s motion for a new trial made upon the; minutes'.

<p>Negligence—collision between a cab and a.street car at a street intersection — charge that if, when the cab drove upon the trade, the motorman could not avoid the collision by the exercise of ordinary care, the plaintiff could not recover — ordinance giving the can'the right of way over the cab — fhe rights of the panties are governed, thereby.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff in consequence of a collision at á street intersection between a cab which he was driving easterly and one of the defendant’s north-bound street cars, a sharp conflict arose upon the trial as to the relative positions of the cab and the car when the plaintiff attempted to cross the track.</p> <p>Held, that it was improper for the court to refuse to charge that “ If the jury in ■ this case find from the evidence that while the defendant’s north-bound car was proceeding in the' ordinary and lawful course of defendant’s business, the plaintiff, while such car was in full sight, drove in front of it at a time when the car was so near that it could not be stopped by the motorman by the exercise of ordinary care, then the plaintiff cannot recover and the defendant is entitled to a verdict; ”</p> <p>That the court having received in evidence without objection a city ordinance providing, “On all fhe public streets or highways of this city, all vehicles going in a northerly or southerly direction, shall have the right of way over any. vehicle going in an easterly -or westerly direction,” it was improper for the court to charge that .at the place where the collision occurred the rights of the parties were equal, and to refuse to charge that under the ordinance the -car had the right of way over the cab.</p>

Appeal by the plaintiff, Lillian JVI. Thyll, from an order of the x Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of July, 1903, reversing a judgment of the City Court of the city of New York in' favor of the plaintiff, entered in the office of the clerk of said court on the 7th day of January, 1903, and also reversing an order of said City Court, entered on the 14th day of January, 1903, denying. the…

<p>Appeal by the defendants, Thomas L. Feitner and others, composing the board of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the. 11th day of November, 1903, confirming the report of a referee appointed to take testimony in a certiorari proceeding and vacating an assessment upon the relator’s stock and surplus.</p>

<p>Land taken to extend Riverside drive in Sew York city — award'embracing the value of the land and interest thereon to the date of the repoi-t— the landowner is entitled to interest on the entire award—when the rule that an excessive demand is ineffectual to set interest 'running does not apply.</p> <p>Commissioners of estimate and assessment appointed in a proceeding instituted under chapter 665 of the Laws of 1897, for the extension of Riverside drive in the city of New York, awarded a landowner §11,500 as the value of the land taken, and also the further sum of §1,508.41 as interest thereon from September 22, 1900, the date when the title vested in the city, to November 29, 1902, the date of the report, making a total of §13,008.41. April 23, 1903, after the report of the commissioners had been confirmed, the property owner filed a demand for the payment of the award.</p> <p>Held, that the landowner was entitled to receive §13,008.41, with interest thereon from November 29,1902, the date of the report, to the time when payment was made, and not simply §11,500, with interest thereon from September 22, 1900, the date when the title vested in the city, to the time when the report was confirmed;</p> <p>That the amount designated as interest in the award made to the property owner was not awarded to her as such, hut as a part of the damages which she had sustained, and that consequently she was entitled to interest on the entire award.</p> <p>Semble, that the rule that an excessive demand is ineffectual to set interest running upon the sum actually due is of doubtful application where the whole amount of money which the party is entitled to receive is liquidated and the only question relates to interest. Under such circumstances, if the comptroller deems the demand excessive, he should offer to pay the sum concededly due.</p> <p>Laughlin, J., dissented.</p>

Appeal by the plaintiff, Thomas Farrelly, as temporary administrator, etc., of Frank J. Smith, an absentee, 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 18th day of November, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint and adjudging the defendant administrator to be entitled to a certain fund on deposit in the…

Appeal by the defendants, Rosalie V. Henry and another, by Campbell E. Locke, their guardian ad litem, from certain portions of a judgment of… Held: to convey, transfer, deliver and pay over one equal fourth part of the capital of such trust estate with all gains and increase of capital thereof, if any, in fee simple and absolutely to such person ; and after such person in trust for whom such trust estate shall be held in trust as aforesaid shall have attained the age of…

Appeal by' the plaintiff, Alice Viner, 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 March, 1903, granting the defendants’ motion to make the plaintiff’s complaint more definite and certain, and directing the service of an amended complaint. .

<p>Appeal by the defendants, Lizzie J. Corvin 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 10th day of June, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging the plaintiff to be the absolute owner of certain premises in the city of New York.</p>

Appeal by the plaintiffs, the Delaware, Lackawanna and Western Railroad Company and another, from a judgment of the Supreme Court in favor of the defendant,, entered in the office of the clerk of the county of Oswego on the '7th day of October, 1903, upon the report of a referee, dismissing the complaint upon the merits.

<p>Action by a trustee in bankruptcy against a judgment creditor of the bankrupt — an adjudication in the bankruptcy proceeding that the bankrupt was insolvent when the judgment was obtained against him, is conclusive against the judgment creditor—refusal to allow a plaintiff, who has rested, to reopen his case—when improper.</p> <p>Where, within four months after the recovery of a number of judgments, creditors of the judgment debtor institute involuntary bankruptcy proceedings under the Federal Bankruptcy Act, against the judgment debtor, an adjudication made in the bankruptcy proceeding that the judgment debtor was insolvent at the time the judgments were recovered, is conclusive against one of the judgment creditors in an action brought against her by the trustee in bankruptcy to recover moneys Which she received under an execution issued upon her judgment, notwithstanding that none of the judgment creditors were parties to the bankruptcy proceeding. ■</p> <p>Where the trustee in bankruptcy- rests his case¿ after putting in evidence .the-decree in bankruptcy, and the trial court decides that such decree does not, as against the judgment creditor, furnish evidence of the judgment debtor’s insolvency at the time the judgments were recovered, the refusal to permit the trustee in bankruptcy to reopen the case, in order to introduce common-law proof of the insolvency of the judgment debtor at the time of the recovery of the judgments, constitutes,an improper exercise of the discretion vested in the court.</p>

<p>Cider vinegar ■— that part of section 50 of the Agricultural Law fixing the percentage of acetic acid which it shall contain is unconstitutional — the remainder of the section and sections 51, 52 and 53 of the statute are constitutional.</p> <p>Section 50 of the Agricultural Law (Laws of 1893, chap. 338, as amd. by Laws of 1901, chap,. 308) provides: " All vinegar which contains any proportion of lead, copper, sulphuric acid, or other ingredients injurious to health, or any artificial coloring matter, or which has not an acidity equivalent to the presence of at least four and one-half per centum, by weight, of absolute acetic acid, or cider vinegar which has less than such an amount of acidity, or less . than two per centum of cider vinegar solids on full evaporation over boiling water, shall be deemed adulterated. The term cider vinegar, when used in this article, means vinegarmade exclusively from pure apple juice. Provided, however, that cider vinegar made by a farmer in this State, exclusively from applea grown on hia land, or their equivalent in cider taken in exchange therefor, shall not be deemed: adulterated, if it contain two per centum solids and sufficient alcohol to develop the required amount of acetic acid,”</p> <p>Said, that the section, in so far as it relates to the percentage of acetic acid which unadulterated cider vinegar shall possess, violates section 6 of article 1 of the, Constitution of the Stale of New York and the 14th amendment of the United .States Constitution, providing that no person shall be deprived of liberty without due process of law, in that it permits, farmers and purchasers from farmers to deal in cider vinegar which does not contain four and a half per cent of acetic acid and prohibits all other persons from manufacturing and dealing in cider vinegar which does not. possess that' percentage of acetic acid;</p> <p>That the Temaining portions of section 50 are constitutional, .as are also sections 51 53 and 53 of .the statute, which prohibit the. manufacture and sale of adulterated vinegar, require the branding of packages containing cider vinegar, and impose penalties for violations of the provisions of the statute.</p> <p>Per McLenmmt, P. J., and Sbrotg, J..; Hisoock,. J., concurred in result; WiLEiAMsand Stover, JJ., dissented.</p>

<p>Venue— a defendant who notices fhe case for trial, and obtains a postponement of the trial until the next term- of court, thereby -waives Ms right to move for a change of venue.</p> <p>Where both the parties to an action notice it for trial at-ia term of court to be held in the county in which the action is brought, and the defendant appears at such term of court and applies for and obtains, on the ground of the illness of a material witness, an adjournment of the trial until the next term of court, he thereby waives his right to move to have the venue changed to another county in order to promote the convenience of witnesses.</p>

Appeal by the defendant, the London Guarantee and Accident Company, Limited, 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 August, 1903, upon the verdict of a jury for $5,175, and also from an order entered in said clerk’s office on the 13th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, Byron J. Strough and another, 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 23d day of May, 1903, upon the verdict of a jury dismissing the complaint upon the merits, and also from an order bearing date the 4th day of May, 1903, and entered in said clerk’s office, denying the plaintiffs’ motion for a new trial made upon the minutes.

Motion by the defendant, Joseph H. Rebstock, for a new trial made 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 by direction of the court, after a trial at the Seneca Trial Term.

<p>Appeal by the defendant, the Jefferson County Patrods’ Fire Relief Association, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Jefferson on the 19th day of January, 1903, upon the verdict of a jury, 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.</p> <p>The plaintiffs are the owners of a farm in the town of Champion in the county of Jefferson and the defendant is a co-operative fire insurance company restricted in its business to the counties of Jefferson and Lewis and incorporated pursuant to chapter 362 of the Laws of 1880, as amended particularly by chapter 573 of the Laws of 1886.</p> <p>Every applicant for insurance must be a member of one of the local granges of defendant and is liable to the* payment of assessments to meet losses and expenses. The plaintiffs had become members of the defendant in 1890 by receiving a policy of insurance upon the buildings on their farm. This policy bearing date November 24, 1890, by its terms expired November 24, 1895, and at its expiration a renewal policy was issued for five years. The soliciting agents of the defendant were its directors and there was a director named Babcock all this time living in the vicinity of the plaintiffs and to whom the applications for these policies were made. In January, 1900, Babcock informed the plaintiff William Loomis, in whose name the policy was running, that it had expired and a new application was made and a portion of the premium paid, and another policy issued in form like its predecessor but it never was delivered to Loomis. Later. Babcock learned that the policy issued in November, 1895, had not yet expired and the one of January was canceled, although this did not occur until several months had elapsed from the date of its issuance, the precise time being in controversy and is unimportant. In any event, when Mr. Loomis learned of it he and Babcock agreed that the premium already paid, and in the meantime he had paid the balance, should be •applied in payment of the new policy which it was arranged should be issued November 24, 1900, upon the termination of the existing policy. On that day Mr. Loomis went to the home of the director and applied for a renewal of the policy and an application was filled out by Mr. Babcock and which Loomis says he signed, although that question is in dispute and will be adverted to later. On the same day, which was Saturday, Babcock took the application to Watertown, intending to deliver it to the defendant’s office but found It closed. He returned with the application and mailed it to the defendant the succeeding Monday and it was received on Tuesday morning, the twenty-seventh. It was returned to Babcock by the secretary for correction: First. To have it signed by the applicant, and, second, to have the loss, if any, payable to the mortgagee as his interest may appear. Babcock was absent from home, at the time the application arrived and did not return until Saturday. On Sunday he went with the application to the respondents and it was signed by Mr. Loomis and the name of the supposed mortgagee inserted in his stead and the application' was left with Loomis to forward to the defendant and the application was subsequently rejected.</p> <p>Early in the morning of November twenty-seventh and before the return of the application to Babcock by the defendant for correction the barn described in the policy was wholly destroyed by fire and the extent of the liability of the defendant, if liable at all, was stipulated upon the trial. The defendant’s secretary testified that when he returned the application he had not learned of the fíré. Mr. Loomis wrote to the secretary on the twenty-seventh informing him of the burning of the barn and its contents. Further facts appear in the opinion.</p>

<p>Appeal by the defendant, Albert E. Marshall, from a judgment of the County Court of Wayne county, entered in the office of the clerk of the County of Wayne on the 22d day of April, 1903, reversing a judgment of a justice of the peace of the town of Lyons, in favor of the said defendant, entered on the 20th day of May, 1902.</p>