Volume 92 — New York Supplement

<p>1. Appeal—Question for Review.</p> <p>Where a street railroad admitted on the record that it operated and controlled the two car lines in question, and did not suggest any failure of proof as to the contract between the two companies, the objection could not be taken for the first time on appeal.</p>

Action by Thomas L. Reynolds against Ruth Britton, as executrix of the will of Dennis McMahon, deceased, and another. From a judgment for plaintiff, Lucy Bowen, an heir of testator, appeals. Affirmed. The action is to foreclose a mortgage given by Dennis McMahon, now deceased, dated June 19,1900, for the sum of $7,000.

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by the Doane Steam Pump Company against Jacob L. Toch. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District.</p> <p>Action by William H. Hall against the Uvalde Asphalt Paving Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Henry Freeman against the New York City Railway Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>1. Sales—Purchases’s Refusal to Accept—Tender.</p> <p>Where the purchaser of goods stated to the seller that no delivery need be made, as be would not accept, the seller was not required to make a tender.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, 5 959.]</p> <p>2. Same—Remedies of Seller.</p> <p>Where the purchaser of goods refuses to accept, the seller may store or retain the property for the vendee, and sue for the entire purchase price; or he may sell the property, and recover the difference between the contract price and the price obtained upon a resale; or he may retain the property as his own, and recover the difference between the market value at the time and place of delivery and the contract price.</p> <p>3. Same—Evidence.</p> <p>In an action for the balance of the contract price of goods sold, but not accepted by the purchaser, evidence held to show that the seller had elected to retain the goods as the property of the purchaser, and not as his own.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Actions by Thomas C. Holmes against the Interurban Street Railway Company. From judgments for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Francis Conlan against Jules Murry. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>1. Municipal Courts—Jurisdictional Amount.</p> <p>Under the express provision of Laws 1902, p. 1487, c. 580, § 1, subd. 1, the Municipal Court of New York City has no jurisdiction of an action on a contract wherein plaintiff’s claim exceeds 8500.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Cortlandt H. Mallery against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals.. Affirmed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth "District.</p> <p>Action by Ogden Brower and another against the New York Mailing & Advertising Company. From a judgment for plaintiffs, •defendant appeals. Reversed.</p>

<p>1. Criminal Law—Punishment—Good Time—Second Conviction—Forfeiture.</p> <p>Laws 1886, p. 30, c. 21, § 14, provides that a convict discharged within the period of his sentence may lose the benefit of the shortened imprisonment for good conduct if he is again convicted before the time has elapsed for his release under the first judgment. Reid, that since a prisoner’s release before expiration of his sentence was not of right, but from mere grace of the people, the statute providing for extended imprisonment if he was again convicted, was not unconstitutional, as depriving him of his liberty without due process of law.</p> <p>'2. Same—Double Jeopardy.</p> <p>The convict, under such circumstances, not having satisfied the penalty . imposed by the first judgment, is not,entitled to object to his reincarceration to serve the balance of his sentence on second conviction on the ■ ground of double jeopardy.</p> <p>3. Same—Impairment of Contract.</p> <p>Laws 1886, p. 30, c. 21, § 14, providing for the forfeiture of a convict’s “good time” earned on his subsequent conviction before the time has elapsed for his release under the first judgment, being a part of the contract by which the state consents to a reduction of sentence in return for the convict’s good behavior, his subsequent reincarceration under such act did not constitute an impairment of such contract</p>

<p>Action by William J. Black against the board of education. Judgment rendered.</p>

S a charo Rubens was convicted before a magistrate as a disorderly person, under section 685 of the charter of Greater New York (Laws <1901, p. 279, c. 466), and appeals. Reversed.

<p>Appeal from Justice Court.</p> <p>Action by Nellie Burdick against the Erie Railroad Company. From a justice’s judgment dismissing the complaint, with costs, plaintiff appeals. Reversed.</p>

<p>Action by Jacob Mendelson against Jacob Kitt and another. On demurrer to separate defense. Demurrer sustained.</p>

Action by Isaac K. Cohn and another against the James McCreery Realty Corporation. From a judgment for defendant and from an order denying plaintiffs’ motion for a new trial, plaintiffs appeal. _ Affirmed.

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Mary J. Willets against Louis Curth and others. From a judgment for plaintiff, defendants appeal; Reversed.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by John M. Bowers, as receiver of the Mercantile Credit Guarantee Company of New York, against James W. Hinckley and others. From an order granting an extra allowance, plaintiff appeals. Modified and affirmed.</p>

Action for personal injuries by Edward Johnson against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff on a verdict of $4,500, and from an order denying a new trial, defendant appealed. After the appeal was taken, plaintiff died, and the action was continued in the name of Joseph A. Murphy as executor. Reversed.

<p>Action for the annulment of a marriage by Hervey against Hervey. Dismissed.</p>

<p>1. Fbaud—Action—Complaint—Conspiracy—Evidence of Fraud Alone— Variance.</p> <p>Where a complaint alleged conspiracy to defraud, it was immaterial that the evidence showed only the fraud, the same being the gravamen of the action.</p> <p>2. Same—Evidence—Competency.</p> <p>Where, in an action for damages from a conspiracy to defraud, the false representations complained of were alleged to have been made in a certain month, it was error to sustain an objection to evidence to show conversations with defendant in a later month, in which he was asked whether he had made certain representations to plaintiff’s agent, and whether they were true.</p> <p>(Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, $ 1025.]</p>

<p>Appeal from Municipal Court, Borough, of Manhattan, Thirteenth District.</p> <p>Action by Samuel Bernstein against the New York City Railway Company. From a Municipal Court j'udgment in favor of plaintiff, defendant appeals. Reversed.</p>

Action by Harry Feldman, by guardian, against Harry B. Senft. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Modified.

Action by Thomas W. Vought against the New York City Railway Company. From a judgment of the Municipal Court for plaintiff after a trial before the justice and a jury, defendant appeals. Reversed.

Action by Louis D. Prager against Lazarus Levy. Prom a judgment for plaintiff, defendant appeals. Affirmed. This action was brought to recover the sum of $43,800 upon a contract of employment, and for services rendered for and at the request of the defendant by Joseph L. Prager, plaintiff’s assignor, in procuring a reduction in the rate of fire insurance prevailing on defendant’s building, and in securing for the defendant certain policies of insurance.

<p>Landlord and Tenant—Deposits—Recovery—Burden of Proof.</p> <p>Where, In an action to recover the balance of a deposit made with defendant as security for plaintiff’s performance of the covenants of a lease, plaintiff alleged that he had discharged all the conditions of the lease, which was denied by the answer, the burden was on plaintiff,' as a part of his affirmative case, to give prima facie proof of performance of such covenants.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by George Platauer against the American Bonding Company of Baltimore. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Contempt of Court—Appeal—Final Order.</p> <p>On motion to punish.a third party for contempt for falling to appear and submit to an examination pursuant to an order of a justice, an order requiring such party to appear and submit to an examination, otherwise the commitment to issue, was not a final order, and no appeal therefrom would; lie.</p> <p>[Ed. Note.—For cases in point, see vol. 10, Cent. Dig. Contempt, § 224.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>. Action by Lillie J. Earle against W. Wright Gillies. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed.</p>

<p>Contracts—Services—Damages.</p> <p>Where defendant promised that, if plaintiffs would raise money to pay off a third mortgage owned by defendant and covering the premises owned by plaintiffs, defendant would pay the expenses of procuring such loan, not exceeding $100, and the new mortgagee testified that the expenses amounted to $80, defendant’s liability was limited to that sum.</p>

Action by Rose Go'odfriend, an infant, by one as guardian ad litem, against H. Fannie Robins. From a judgment for plaintiff overruling demurrer to complaint, defendant appeals. Affirmed.

<p>Brokers—Commissions—Payment—Conditions.</p> <p>Where broker’s commissions were not to be paid for until and unless title passed, and the purchaser failed to complete his purchase, no right to commissions accrued.</p> <p>[Ed. Note.—For cases in point, see vol. 8, Cent. Dig. Brokers, § 97.]</p>

<p>Contracts—Execution—Evidence.</p> <p>Evidence of defendant that plaintiff seemed pleased that everything had been straightened out, and particularly the payments for labor and materials to be furnished, and thought that defendant was liberal in them, and that defendant told plaintiff he would have a stenographer typewrite the contract, and that, if plaintiff would call the succeeding day, it would be ready for signature, was insufficient to show an agreement between the parties on the basis of the terms so specified, it appearing that the written contract was never made, owing to a final disagreement as to its terms.</p>

<p>Master and Servant—Contract of Employment—Breach—Examination of Plaintiff before Trial.</p> <p>Where, in an action for breach of a contract of employment, plaintiff’s examination before trial was limited to what occupation, if any, plaintiff had after his discharge, and what efforts, if any, he made to obtain such employment, and what compensation was earned by him after his discharge, the order allowing such examination was not objectionable on the ground that defendant was thereby permitted to obtain evidence to rebut that which plaintiff might offer on the subject of damages.</p>

<p>Appeal from City Court of New York, Trial' Term.</p> <p>Action by H. Watts Bagley against Louis Stern. From a City Court judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial, he appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by John J. Daly against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Judgment—Time fob Rendering—Adjoubnment fob Submission of Briefs. The time to which adjournment is taken for submission for briefs is the time of the submission of the cause, within 14 days of which Municipal Court Act, $ 230 (Laws 1902, p. 1557, c. 580), requires judgment to be rendered.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Thomas A. Fitzpatrick against the New York City Railway Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Thomas C. Platt, as president of the United State's Express Company, against Morris Gross. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>1. Chattel Mortgages—Default—Replevin.</p> <p>In case of an ordinary chattel mortgage to secure a loan, the mortgagee may, after default, maintain replevin for the articles.</p> <p>[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, 8§ 293, 310.]</p> <p>2. Municipal Court—Jurisdiction.</p> <p>Laws 1902, p. 1533, c. 580, § 139, forbidding actions in the Municipal Court, in case of a contract of conditional sale, a hiring of personal property, or chattel mortgage to secure the purchase price of chattels, does not deprive the Municipal Court of jurisdiction in the case of a chattel mortgage to secure a loan.</p>

Action by Patrick Kiernan against Patrick Cashin and another to recover possession of rented premises. From a final order in favor of plaintiff, Thomas J. Darcey appeals. Modified.

Action by James O. Woodward, administrator of the goods, etc., of Robert Gordon Hardie, deceased, against William Skinner. From an order of the City Court, granted at Special Term, allowing the oral cross-examination of witnesses on commission, defendant appeals. Modified.

<p>Savings Bank—Payment on Forged Signature—Liability.</p> <p>On the issue whether a savings bank was liable for the withdrawal of a depositor’s fund on a forged signature, it was shown that, when the payment was made, the person to whom it was made presented a draft, together with the depositor’s passbook, and that the person answered the test questions correctly. An entry of withdrawal was made in the passbook. The depositor thereafter had possession of the book, and on six different occasions he personally made deposits, which were entered therein without an inquiry as to the meaning of the withdrawal entry. 'Held, that the bank, as a matter of law, was not liable; there being no evidence of want of reasonable care on its part.</p> <p>[Ed. Note.—For cases in point, see vol. 6, Cent. Dig. Banks and Banking, §§ 1162-1168.]</p>

Action by James Muriano, an infant, against the Interurban Street Railway Company. From a City Court judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial, it appeals. Reversed.

<p>Street Railroads — Injury to Pedestrian — Negligence — Contributory</p> <p>Negligence—Burden of Proof.</p> <p>Evidence in an action by a pedestrian against a street railway company for injuries sustained in a collision with a street car considered, and held insufficient to sustain the burden on plaintiff of proving negligence on the company’s part and of proving himself free from contributory' negligence.</p> <p>Giegerich, J., dissenting.</p>

Action by Patrick Galligan and others against William De Lorenzo and others. From a Municipal Court judgment in favor of plaintiffs, defendants appeal. Affirmed in part and reversed in part.

<p>Pleading and Evidence—Variance—Delay in Objection.</p> <p>Where the bill of particulars apprised defendant of the character of plaintiff’s claim, and the case was tried on the theory that the action was for money paid out for account of defendant, the objection of variance between the informal oral complaint and the proof, made only at the very end of the case, comes too late; there being no surprise, or claim thereof.'</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1438-1441.]</p>

<p>Bills of Particulars—Affidavit—Failure to Answer.</p> <p>Where the affidavit for a bill of particulars is sufficient, and is not disputed by answering affidavits, the bill of particulars must be ordered.</p>

Action by Luden Levy against John Hatch. There was judgment for plaintiff, and, from an order granting defendant’s motion for a new trial, plaintiff appeals. Reversed.

<p>Work and Labor—Damages—Evidence—Judgment.</p> <p>Where, in an action for work and labor, the highest estimate of the value was testified to by plaintiff, who gave a detailed estimate amounting to $164, a judgment in favor of plaintiff for $186 was erroneous.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Morris H. Moss against Margery Blyth. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Modified.</p>

<p>Appeal from Special Term, Monroe County.</p> <p>Charles A. Beaman was convicted of selling adulterated milk, and appeals. Affirmed.</p>

Action by Louis Lehn against Central Crosstown Railroad Company. From a City Court judgment in fayor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals. J^gygyg 0 ^

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Auguste Silz against the Interurban Street Railway Company. From a City Court judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals. Reversed.</p>

Action by Olive -Chapman, as administratrix of the estate of Harvey Chapman, deceased, against the Delaware, Lackawanna & Western Railroad Company. From an order setting aside a judgment in favor of plaintiff, granting a new trial, and charging plaintiff with payment of the costs of the motion and reference, she appeals. Modified.

<p>Bailment—Loss of Goods—Liability of Bailee—Evidence—Sufficiency..</p> <p>In an action for goods alleged to have been lost or stolen while in-defendant’s custody, evidence held insufficient to show that the loss occurred at this time, and not after the goods had been delivered at plaintiff's hotel.</p>

<p>1. Landlord—Hold-0 veb Tenant—Liability fob Rent.</p> <p>A hold-over tenant is liable, at the option of the landlord, to a tenancy for another year, even in the absence of any agreement, and regardless of an increased rent.</p> <p>[Ed. Note.—For cases in point, see vol. 32, Cent Dig. Landlord and Tenant, §§ 284, 378.]</p> <p>2. Same—Statute—Construction.</p> <p>The statute which fixes the termination of certain tenancies at May 1st applies to cases in which there has been an agreement of hiring, in which the duration thereof is not particularly specified.</p>

<p>L Appeal—Findings op Lower Court—Evidence—Sufficiency.</p> <p>In an action to recover for advertising done for defendant, evidence held to support the finding of the trial justice that plaintiff did not agree to submit to defendant a proof of his advertisements to be approved by him before publication.</p> <p>2. Same—Conolusiveness.</p> <p>The trial justice, having had the witnesses .before him, and observed their conduct and demeanor while testifying, is better able to judge of their credibility and determine the weight to be given their testimony than is the appellate court.</p>

Action by Solomon Rosenstein and another against the Traders’ Insurance Company of Chicago, ill. On motion for new trial on defendant’s exceptions. Exceptions allowed, and new trial granted. See 79 N. Y. Supp. 736.

<p>1. Indians—Courts—Decebes—Enforcement.</p> <p>Under the Indian law (Laws 1892, p. 1587, c. 679, § 53, as amended by Laws 1893, p. 415, c. 229, and Laws 1900, p. 506, c. 253), providing for the enforcement of judgments of Peacemakers’ Courts by application to a court having jurisdiction of actions of the same nature, and declaring that a copy of the judgment of the Peacemaker’s Court, certified by its clerk, shall be conclusive evidence of the right of recovery, the Supreme Court, in an action to enforce a decree in partition rendered by the Peacemaker’s Court, cannot go back of the decree, to ascertain the relationship and interests of the parties, which were determined by such decree.</p> <p>2. Same—Proceedings in Indian Courts—New Trials—Notice to Interested Parties.</p> <p>The action of the Council of the Seneca Nation in directing a new trial of partition proceedings before the Peacemaker’s Court, of the reservation, without any notice to a party to whom dower was allotted by the decree in partition, was void as to such party.</p> <p>3. Same—Enforcement of Decrees—Parties.</p> <p>A widow of a Seneca Indian, to whom dower was allotted by a decree of the Peacemaker’s Court in partition proceedings, was sufficiently a party to the decree to entitle her to maintain an action under the Indian law (Laws 1892, p. 1587, c. 679, § 53, as amended by Laws 1893, p. 415, c. 229, and Laws 1900, p. 506, c. 253) to enforce the decree.</p>

<p>1. Conditional Sale—Waiver of Condition.</p> <p>Where goods were bought on condition of approval by a third person, the condition is waived by acceptance and payment without such approval.</p> <p>2. Sale—Breach of Warranty—Measure of Damages.</p> <p>Where defective doors were accepted on the seller’s agreement to make them right if found defective, which he failed to do, the measure of damages is the difference in value between the doors as they are and as they would be if made right.</p>

<p>Mortgages—Collection of Rents—Agency of Collector.</p> <p>The owners of the equity in property authorized the original mortgagor, who was liable in case of any deficiency, and who was also the collector for the mortgagee, to .collect the rents, and to apply the same on taxes and interest on the mortgage, and to pay over the balance to them. This authority was given only on condition that an extension of the mortgage should be obtained, which the mortgagee refused to grant, and was also given to the mortgagor in his personal capacity, and because of his liability on account of the mortgage, and not to him in his capacity as collector for the mortgagee. Both the owners of the equity and the original mortgagor gave defendant authority to rent the property, which he did, and collected the rents. Beld, that defendant was the agent of, and liable for rents collected to, the owners of the equity, and was not the agent of the mortgagee.</p>

<p>Injury to Employí;—Safe Peace to Work—Negligence—Evidence.</p> <p>Plaintiff was put to work unloading coal for defendant on its premises, under a scaffold which had been built that day for purposes of repairs on its buildings, and from which a board fell on him without any apparent cause other than the vibration and jarring caused by stationary engines. Held, in an action for the injury on the ground that defendant was negligent in failing to furnish a safe place to work, that, without further evidence other than some opinions that the scaffold was not properly constructed so as to be a safe place to work under, plaintiff was entitled to go to the jury, they being authorized to infer that the scaffold was constructed by defendant’s authority, or that it knew that it was there, and that it was improperly and negligently constructed, making the place under it an unsafe place to work.</p>

Action by Max Seelav and another against William U. McKenzie. From an interlocutory judgment overruling a demurrer to a separate defense for insufficiency, plaintiffs appeal. Reversed.

Action by Charlotte C. Smith against the Acker Process Company. From an order permitting the continuance of the action to determine and enforce the lien of plaintiff’s attorneys for services, defendant appeals. . Reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by the American Shawl Company against Samuel Wald-man. From the judgment rendered, plaintiff appeals. Reversed. Argued before SCOTT, GIEGERICH, and McCALL, JJ.</p>

<p>Appeal from Municipal Court, Borough of Queens, Second District.</p> <p>Action by John A. Repelye against William J. Lynch. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Action fob Work Done—Evidence—Memorandum.</p> <p>To allow plaintiff in an action for the value of work to read as part of his evidence a copy of a memorandum taken from his books is error, which is not cured by the fact that the memorandum agreed with the bills which had been rendered defendant, the bills not being evidence, and it not appearing defendant verified the bills, or. checked them off with the work'done.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 1647.]</p>

Action by William Wootton against the Flatbush Gas Company. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed.

<p>L Appealable Order.</p> <p>Defendant is entitled to appeal from an order made in resettlement of a prior order of discontinuance of the action.</p> <p>2. Appeal—Question fob Review.</p> <p>An order made in resettlement of a prior order of discontinuance of an action is not reviewable on appeal where the papers on which it was granted are not printed in the appeal book.</p> <p>8. Same—Record.</p> <p>An affidavit printed at the end of an appeal book, which does not purport to have been verified until the day after the order appealed from was entered, is not properly a part of the record, and cannot be considered by the appellate court.</p>

Action by Erik B. Siversen against William H. Jenks. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed.

<p>Appeal from Special Term, Kings County.</p> <p>Action by Peter J. Kennedy against Margaret Lamb and others. From an order David P. Goldstein and another, purchasers, appeal. * Affirmed.</p>

<p>Appeal from Municipal Court, Borough of the Bronx, First District.</p> <p>Action by Elsie Lofink, an infant, by Conrad Lofink, her guardian ad litem, against the Interborough Rapid Transit Company. From á judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Administrators—Actions—Witnesses—Transaction with Deceased Person.</p> <p>Where plaintiff, who was one of the heirs of decedent, sued, as administrator, to collect money alleged to have been loaned by deceased to de- ' fendant, plaintiff was interested in the event, and was prohibited by Code Civ. Proc. § 829, from testifying as to personal transactions with deceased for the purpose of proving the loan.</p> <p>[Ed. Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 605, 607.]</p>

Action by Henry Scott and another against Stanley Lockwood and another. From a judgment affirming a justice’s judgment in favor of plaintiffs, defendants appeal. Affirmed.

In the matter of the application of the city of Rochester to acquire land for public park purposes. From an order appointing commissioners of appraisal, and from an order confirming the report of the commissioners and directing that the award be paid to Mary J. McLean, she appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Brooklyn, Fourth District.</p> <p>Action by Perez Milstein against Catherine Doring. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Judicial settlement of the account of George G. Dutcher as executor of the will of Patrick Lally, deceased. Appeal by the executor as such and individually from part of a decree on his accounting, and also from an order denying a rehearing and amendment of his account. Modified.

<p>Res Judicata—Order for Judgment.</p> <p>That plaintiff was unlawfully expelled from a society, a fact necessary for his recovery of damages, is not shown by a mere order for judgment for him in a prior action by him against the society for reinstatement [Ed. Note.—Eor cases in point, see vol. 30, Cent Dig. Judgments, §§ 1094, 1244-1246.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action on account by Louis Ruprecht against the city of New York. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>Appeal from Special Term, Rockland County.</p> <p>Action by Frank A. Greene, administrator of the estate of Garret G.. Greene, deceased, against the New York, Ontario & Western Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

Action by John J. McCormack against Richard R. Mandelbaum. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Action for personal injuries by Michael Toohey against the Interurban Street Railway Company. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. Reversed.

Action by H. Albertus West against J. B. M. Grosvenor and others. Erom a judgment on a verdict for plaintiff and from an order denying a motion for a new trial, defendants appeal. Affirmed.

<p>1. Vendos and Purchaser—Specific Performance—Tender of Marketable Title.</p> <p>To entitle a vendor to specific performance, he must be able to tender his vendee such a title as will enable the latter to hold his land free from probable claim by another, and such as will be reasonably free from any doubt, or fair question, which will interfere with or affect its market value.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Specific Performance, §§ 257-277.]</p> <p>2. Same—Marketable Title—Rights of Possible Issue.</p> <p>A grantor conveyed property to his daughter and his sons during the life of the daughter, and after her death to her surviving children, or the issue of her children, if there should be any, and, if none, to the sons or the survivors of them, and the issue of deceased sons. Subsequently the sons, who then had living issue, executed to the daughter, who was still childless, a deed purporting to convey to her the premises in fee. Held, that the daughter did not acquire, by virtue of the conveyances, a marketable title to the fee.</p> <p>3. Judgments—Conclusiveness—Parties—Contingent Remaindermen.</p> <p>After the conveyance by the sons to the daughter, the latter sued the former, joining the widow and the executor of the original grantor, and in such suit procured a decree reforming the original deed so that it purported to transfer and convey the premises to the daughter in fee simple. Held, that the rights of the daughter being adverse to the children of the sons, and to her own possible unborn children, and neither of such classes of children being represented in the action, they were not concluded by the decree reforming'the deed.</p> <p>4. Vendor and Purchaser—Marketable Title—Outstanding Interests.</p> <p>Where the title of a vendor was subject to a possible unadjudicated interest by way of contingent remainder in children of certain' of her grantors and in her own possible issue, the purchaser would not be compelled to accept her title.</p>

<p>Appeal from Special Term, Queens County.</p> <p>Action by William Cornell against George H. Huber. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed.</p>

<p>Justices of the Peace—Discontinuance of Action—Recommencement in County Court—Pleading—Amendment of Answer.</p> <p>Under Code Civ. Proe. § 2957, providing that when an action commenced before a justice of the peace is discontinued and recommenced in the county court, the plaintiff must complain for the same causé of action only, upon which lie relied before the justice, and that defendant’s answer must set up the same defense only, which he made before the justice, a defendant who in the justice’s court has pleaded facts showing that the title to real estate would come in question, and made no other defense, cannot in the county court amend his answer so as to allege a counterclaim.</p>

<p>Appeal from Trial Term, Kings County.</p> <p>Action for breach of contract by Lorenzo Coppola against Isidor Kraushaar. From a judgment of dismissal, plaintiff appeals. Reversed</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Fourth District.</p> <p>Action by Charles Alt and another against Claus Doscher. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.</p>

Mandamus proceedings by the people, on the relation of John J. Gutheil, against John McGaw Woodbury, as commissioner of street cleaning of the city of New York, and another. From an order confirming the referee’s report, and directing the issuance of a peremptory writ of mandamus, defendants appeal. Modified.

Certiorari by the people, on the relation of William Lahey,. against John McGaw Woodbury, as commissioner of street cleaning of the city of New York. From an order quashing the writ» relator appeals. Reversed.

Action by James W. Tydeman against the Prince Line, Limited. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Action by William Franklin against William H. Beegle and others. Appeal by defendant Lucy E. W. Wilson from a judgment overruling a demurrer to the complaint and from a final judgment of foreclosure. Reversed.

Action by Veronica Gorney against the city of New York. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District.</p> <p>Action by Albert Stern against August Fleck. From an order of the New York Municipal Court vacating a judgment in favor of defendant, he appeals. Affirmed.</p>

Action hy Benjamin L. Ludington and another, as substituted trustees under the will of Robert Barkley, deceased, against the Mercantile National Bank of the City of New York and another. From a judgment for defendants, plaintiffs appeal. Reversed.

<p>Venue—Local Actions—Determination op Interests in Real Property.</p> <p>A complaint counted on a written agreement for a business venture resulting in the purchase of lands, title to which was taken in the names of plaintiff and of one of defendants individually in trust Sales were to be made, and the profits distributed in specified proportions. Losses resulted. Plaintiff claimed that he had contributed more than his proportionate share to sustain the venture, and asked judgment for an accounting and for a sale of the property. Defendant answered, admitting the agreement, and praying for a decree that the property be held in trust, as provided by the argeement, until it could be sold at a profit. Held, that the action was not one to recover or determine rights in real property, within the meaning of Code Civ. Proc. § 982, requiring such actions to be tried in the county where the property is situated.</p>

First District. Action by Henry Becher against the city of New York. From a final order of the Municipal Court in favor of plaintiff in. a proceeding for the removal of the defendant for a forcible entry and detainer, defendant appeals. Reversed.

Judicial settlement of the accounts of John Hopkins and another, as trustees under the will of William H. Hopkins, deceased, in which Charlotte Strong Seixas made claim to a portion of the trust created by will, and from a decision denying the claim (89 N. Y. Supp, 467) she appeals. Affirmed.

Petition by Henry C. Rogers for the appointment of appraisers to appraise the value of stock alleged to be owned by him in the Union Bank of Brooklyn, and objecting to the proposed merger of that bank with the Kings County Bank. From an order dismissing the proceeding, petitioner appeals. Affirmed.

Action by John J. Kirkpatrick against the Allemannia Fire Insurance Company of Pittsburgh, Pa. From a judgment for defendant and from an order denying a new trial, plaintiff appeals. Affirmed.

<p>Appeal from Trial Term, Oswego County.</p> <p>Action by Robert A. Pelin against the New York Central & Hudson River Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.</p>

<p>1. Master and Servant—Safe Appliances.</p> <p>Under the direct provisions of Laws 1897, p. 467, c. 415, § 18, it is the duty of a master, employing a servant to make alterations in a factory which necessitate the use of a ladder, to furnish a ladder which is not unsafe.</p> <p>2 Appeal—Nonsuit—Review.</p> <p>In reviewing a judgment granting á nonsuit, the plaintiff is entitled to the benefit of every fact which the jury could have found from the evidence.</p> <p>3. Same—Negligence—Evidence.</p> <p>In an action for the death of a servant, caused by the breaking of a ladder, evidence field to justify submission to the jury of the issue of defendant’s negligence.</p> <p>•4. Injury to Servant—Contributory Negligence.</p> <p>In an action for the death of a servant, caused by the breaking of a ladder, evidence held to justify submission to the jury of the issue of decedent’s contributory negligence.</p>

Action by the Westchester Trust Company, as trustee, against John Kelly, impleaded with the Hobby Bottling Company and others, to foreclose a mortgage executed by the bottling company as security for the payment of bonds issued by that corporation. From a judgment for plaintiff, Kelly appeals. Affirmed.

Action by the Bank of Port Jefferson against Mary A. Darling. From an order denying a motion to vacate an execution issued and returned on a judgment, the affidavit and order appointing a receiver, his bond, and proceedings supplementary to execution, defendant appeals. Proceedings subsequent to execution and return vacated.

Action by William R. Hearst against George B. McClellan, as mayor of the city of New York, and Edward M. Grout, as comptroller of such city, and another. From an order denying a temporary injunction pendente lite, the mayor and comptroller appeal. Reversed.

Action by John Tuffey and others against the Brooklyn Union Gas Company. From a judgment in favor of defendant, and from an order denying a motion for a new trial, plaintiffs appeal. Reversed.

<p>Appeal from Special Term, Rensselaer County.</p> <p>Action by Mary Chambers Rowe against Benjamin Rowe and Frederick Rowe individually and as executors of the estate of Benjamin F. Rowe, deceased, and others. From an order overruling a demurrer to-the complaint, defendants appeal. Affirmed.</p> <p>Appeal by the defendants Benjamin Rowe, Frederick Rowe, Myra Rowe,, and Eliza A. Rowe from an order of the Albany Special Term, and an interlocutory judgment entered thereupon, in the office of the clerk of the county of Rensselaer on the 13th day of July, 1904, overruling a demurrer by said defendants to the complaint of the plaintiff. This action is brought by the-plaintiff, claiming to be the widow of one Benjamin F. Rowe, for dower in the real property of which said Benjamin F. Rowe died seised. The complaint alleges the death of Benjamin F. Rowe, and that he left a will. The-will is made a part of the complaint, and the material parts thereof are as-follows:</p> <p>“First. After all my lawful debts are paid and discharged I give and bequeath and devise to my executors, hereinafter named, whom I also appoint trustees, all my real property in trust, and do hereby empower and direct my said executors to sell the same for the best price obtainable and after-paying to my wife, Eliza A. Rowe, her lawful right of dower, and the expenses of administering my estate, to pay over to each of my children, Benjamin Rowe, Frederick Rowe, Myra Rowe,- and Frank Rowe, one-fifth part of such proceeds and to hold in trust the remaining one-fifth part of such proceeds for the benefit of my grandchild, Blay Salisbury, until she attains-majority. In case any of my said children or my said grandchild die leaving no children, the share of said child or said grandchild to be divided equally between my surviving children. Likewise, I make, constitute and' appoint Benjamin Rowe, of Brooklyn, N. Y., and Frederick Rowe of Schodack, N. Y., to be the executors of this my last will and testament, hereby revoking all former wills by me made.”</p> <p>The complaint further alleges that said will has been duly admitted to-probate, and “that letters testamentary upon the estate of said Benjamin F. Rowe were by said, surrogate on the 15th day of February, 1904, duly granted to Benjamin Rowe and Frederick Rowe, the defendants above named, and that said defendants duly qualified as the executors under said will, as-the plaintiff is informed and verily believes, and accepted the trust created thereby.” The appellants demurred to the complaint “upon the ground that it appears on the face of the complaint that there is a defect of parties defendant in the omission of Benjamin Rowe and Frederick Rowe as trustees-by and under the last will and testament of Benjamin F. Rowe deceased.” The demurrer was overruled.</p>

Action by Carl J. Weideman against Magdalena Pech, impleaded with others. Erom a judgment dismissing the complaint, plaintiff appeals. Reversed. The action was brought for the foreclosure of a mortgage, which, by its original terms, was due at the time of the commencement of the action.

<p>1. Sale -by Sample—Implied Warranty.</p> <p>Where plaintiff sent defendant a sample brick of a certain color, which was uniform over the entire surface of the brick, and defendant ordered several thousand bricks of this variety, there was an implied warranty on the part of plaintiff that the bricks delivered would be of the same uniform shade as the sample brick.</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 769-771.]</p> <p>2. Same—Breach of Warranty—Rights of Buyer.</p> <p>Where goods ordered by a sample are, when delivered, not equal to the sample, the buyer may either return them or keep them and pay their value.</p> <p>8. Same—Avoidable Damage.</p> <p>Defendant ordered by sample from plaintiff a quantity of bricks, to be of the same uniform color as the sample. When the bricks were delivered, they were of a mottled appearance, but were used by defendant to construct houses under the impression that the discoloration would wash off, which proved not to be the case. Held, that defendant could not recover from plaintiff the difference between the value of his houses as they were and as they would have been if the bricks had been of uniform color, inasmuch as it was defendant’s duty, before using the bricks, to make some test to see whether the discoloration would wash off.</p>

Action by Jacob Braunberg against Max Solomon. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Affirmed.

<p>Rape—Evidence—Cobrobobation.</p> <p>In a prosecution for rape, évidence held insufficient to corroborate-plaintiff’s statement concerning the offense, so as to justify a conviction. ■ of rape in the first degree, as provided by Pen. Code, §§ 278, 283.</p>

<p>Í. Default Judgment—Proceedings for Entry—Regularity.</p> <p>Plaintiff sued to establish a lien on property for services rendered defendant “to an extent sufficient to satisfy” such claim, and asked that the extent of his lien and claim “be ascertained and determined, and defendant adjudged to pay the same.” Held, that on defendant’s failure to answer after the overruling of his demurrer and the rendition of an interlocutory judgment which did not direct final judgment, plaintiff was not entitled to a judgment for the amount of his demand, with interest and costs, without proceedings to ascertain the amount as prescribed by Code Civ. Proc. §§ 1222, 1223.</p> <p>2. Same—Extent of Relief.</p> <p>, Under Code Civ. Proc. $ 1207, providing .that “where there is no answer , the judgment shall not be more favorable to plaintiff than that demanded in the complaint,” where a complaint seeks to establish a lien on property in plaintiff’s hands to satisfy a demand due him, and no answer is , filed, plaintiff is not entitled to a money judgment</p> <p>8. Same—Notice of Assessment of Damages—Appearance.</p> <p>A demurrer to the complaint being equivalent to a general appearance by defendant (Code Civ. Proc. § 421), where the demurrer is overruled, though defendant fails to answer over, he is entitled, under section 1219, to notice of the assessment of damages by the clerk, as well as of the application to the court for judgment.</p> <p>4. Appeaj>-Who Entitled.</p> <p>Where plaintiff took judgment without notice to defendant after the overruling of a demurrer to the complaint, and defendant’s failure to answer over, defendant was entitled to appeal.</p>

<p>1. Tenancy by Entirety.</p> <p>A husband and wife who are tenants by the entirety occupy as tenants in common during their joint lives.</p> <p>2. Supplementary Proceedings—Real Estate of Judgment Debtor—Title of Receiver—Partition.</p> <p>Code Civ. Proc. § 1441, gives a judgment debtor whose realty has been sold under execution the right to redeem within a year, and to occupy the premises during that time. Section 2468 provides that on filing a copy of the order appointing a receiver in supplementary proceedings, title to real property of the judgment debtor in the county where the copy of the order is filed shall vest in the receiver; and section 2463 declares that no property exempt from execution shall be reached in supplementary proceedings. Held, that a debtor’s interest in land held by him as tenant by the entirety being subject to execution, so as to entitle the debtor to redeem and enjoy the exemption of one year’s occupation, does not vest in the receiver in supplementary proceedings, so as to entitle him to maintain partition.</p>

<p>1. Oyster Beds—Regulation or Rights and Privileges.</p> <p>Laws 1868, p. 1652, c. 734, regulating the right of the inhabitants of certain towns to plant oysters under the public waters within the towns, and prohibiting the exercise of the privilege without the written permit of the justice of the peace and supervisor, was not a legislative disaffirmance of the claim of the towns to the ownership and control of the waters under colonial patents, but, on the contrary, distinctly recognized the right of the town authorities to grant or withhold the privilege of planting oysters.</p> <p>2. Same — Lease — Powers oe Fish Commissioners — Lands Claimed by Towns.</p> <p>Evidence consisting of town records, minutes of town meetings, town laws, etc., held to show assertions by the town of a claim under colonial patents to lands under public waters within the town, under section 198 of the fisheries, game, and forest law (added to Laws 1892, p. 9S3, c. 488, by Laws 1895, p. 924, c. 974, and amended by Laws 1898, p. 11G0, e. 453), which limits the powers conferred upon the commissioners by section 197 of the law (Laws 1895, p. 924, c. 974), to lease lands under water for the purposes of shellfish cultivation, by providing that it shall not apply to lands under water claimed under colonial patents or legislative grants by any town or person in certain counties.</p> <p>3. Appeal—Disposition op Cause—Reversal—Dismissal.</p> <p>Where there is a fatal objection to plaintiff’s right to maintain the action which cannot be obviated on a new trial, the order of reversal on appeal should direct a dismissal of the' complaint.</p>

<p>Appeal from Trial Term, Orleans County.</p> <p>Action by the town of Clarendon against the Medina Quarry Company. From a judgment in favor of plaintiff, defendant appeals. Modified.</p>

Action by Charles H. Kavanaugh, who sues on behalf of himself and all other stockholders of the Commonwealth Trust Company of New York (formerly the Trust Company of the Republic) who are situated similarly with himself, against Charles W. Wetmore, and Charles F. Brooker, impleaded with Commonwealth Trust Company of New York, and others. From an interlocutory judgment sustaining demurrers to the complaint (92 N. Y. Supp. 233), plaintiff appeals. Affirmed.

<p>Appeal from Judgment on Report of Referee.</p> <p>Action by Fanny H. Youngs, as sole surviving executrix of the last will and testament of Thomas F. Youngs, deceased, and others, against Ada C. Youngs and others. From the judgment, defendants appeal. Affirmed.</p> <p>The following is substantially the referee’s report:</p> <p>I, George H. Adams, to whom by an order entered in this action, on the 28th day of October, 1888, it was referred to hear and determine the same, do report that, having taken the oath required by statute, I have been attended by the attorneys and counsel of all the parties who have appeared in this action; that various witnesses have been examined before me by the various parties, and that various papers, documents, vouchers, and the survey and map of the premises set forth in the complaint have been produced and given in evidence before me and marked as exhibits; that the only parties to this action who have not appeared therein are Lavine G. Meyer and Alfred Youngs and Emma Theresa, his wife, and that due proof was produced and filed with me, showing that the summons and various complaints in this action were duly served upon each of said defendants personally within the state of New York, and that none of them had appeared nor answered nor demurred, and such proofs are hereto annexed; that, during the pendency of this action before me, the defendant Gertrude W. Cheever was delivered of a child, who has been named Gertrude Graham Cheever, who has been duly made party to this action, and its guardian ad litem, John B. Cheever, has duly appeared herein by his attorneys, Lowery, Stone & Auerbach, and an order was made by this court on the 5th day of October, 1889, that the said infant be bound by all the proceedings had in this action prior to that time.</p> <p>I do further report that, pursuant to the prayer of the complaint, I have caused a survey and map of the lands which form the subject-matter of this action to be made by I. Coles, surveyor, of Glen Cove, Long Island, who has appeared before me as a witness and verified the same, and I have received in evidencé his map thereof, and have marked it as “Plaintiff’s Exhibit A,” May 10, 1889; that descriptions of the said land by metes and bounds have been proved before me by the same witness, and the same appear hereinafter in this my report; further, that the cost of said survey and map is $215.</p> <p>I further report, and it was proved before me, that Thomas F. Youngs, the testator referred to in this action, died on the 3d day of March in the year 1883, at Oyster Bay, Queens county, state of New York, seised in fee simple of the lands which form the subject-matter of this action, containing 365 acres, and valued at about $125,000; that he left his last will and testament and codicil thereto, devising the said lands, and the said will and codicil were duly proved as a will of real and personal estate before the surrogate of the county of Queens, on the 5th day of April, 1883, and as such recorded in his office as a will and codicil of real and personal property; that he appointed the plaintiffs as executrices and trustees thereof, who have qualified as such, and are now acting; that the testator devised to the plaintiff, Henrietta Graham Youngs, his widow, for life, all of his said lands; that the testator devised to his said executrices, as trustees for the benefit of his son Alfred for life, the southerly part of his said lands, and one-third of his salt meadow from and after the death of the widow; the trust is to rent or use the same, and to apply the income to the use of his son Alfred during his life; that subject to said two devises for life he devised all of his said lands in fee to his son Graham, charged with the payments of the legacies to the widow and to the executrices, which it is the object of this action to enforce; that this son never accepted said devise, and died after the testator, and before the commencement of this action; that the plaintiffs and defendants are the widow, executrices, trustees, legatees, and devisees, and all of the heirs at law and next of kin of the said testator, and that there are no other legatees, devisees, heirs at law, or next of kin of the testator.</p> <p>I further report the facts and conclusions of law as follows;</p> <p>Findings of Fact; ■</p> <p>First. Thomas F. Youngs, the testator referred to in this action, died in the year 1883 at Oyster Bay, Queens county, state of New York, seised in fee simple and in possession of the lands which form the subject-matter of this action, and which are described as * * *.</p> <p>■ Second. That he left his last will and testament and codicil thereto, devising the said lands and creating the legacies in question; that the said will and codicil were duly proved as a will of real and personal estate before the surrogate of the county of Queens on the 5th day of April, 1883, and as such was recorded in his office as a will and codicil of real and personal property, and are as follows:</p> <p>“In the name of God, Amen. I, Thomas F. Youngs, of the Town of Oyster Bay, Long Island, Merchant, being in good health of body and of sound and disposing mind, memory and understanding, blessed be God for the same, and being mindful of the uncertainty of life, and the certainty of death, do make and ordain this to be my last Will and Testament of all the estate, real and personal, that I may be in any way entitled to at my decease, that is to say:—</p> <p>“First: I give and bequeath to my beloved wife Henrietta Graham Youngs all my household furniture, plate, plated and silver ware, pictures, wines, liquors, horses, carriages, harness, wagons, farming stock and farming utensils, wherever any of the same may be at the time of my death situate, and all the crops that may be growing or gathered or ungathered on my land at the time of my death.</p> <p>“Second: I give and devise to my said wife during her natural life all of my lands at Oyster Bay and the residence and other buildings thereon, with full right to her to cut trees therefrom for fencing the same, and for firewood to be usqd on the premises, and for other farming and domestic purposes, but not for the purpose of sale, except as hereinafter authorized, or with the consent of those owning the estate in remainder.</p> <p>“Third: I give to my said wife for her own exclusive use and benefit the sum of Twenty-five thousand dollars.</p> <p>“Fourth: I give to my daughter, Fanny Henrietta, for her own exclusive use and benefit, the sum of Fifty thousand dollars.</p> <p>“Fifth: I give to my daughter Lavine G. Meyer, wife of George A. Meyer, . for her own exclusive use and benefit, the sum of Forty-five thousand dollars.</p> <p>“Sixth: In addition to the provisions made in the deed of trust executed by me in March, 1877, for the benefit of my daughter Alice E. Nash, and then over, I give to my Executors an additional sum of Twenty-five thousand dollars, in trust to receive the income thereof, and apply the same to the use of my said daughter Alice E. Nash, during her natural life, and on her death the capital shall pass to such of her issue as she shall bequeath the same to if she have any; and power is hereby given to her so to dispose of the same by her Will duly executed; and in default of said Will the said capital shall pass to her issue equally per stirpes, if she leave any surviving her; and in ease she shall leave no issue surviving her, then said capital shall pass to her sisters who shall survive her; or if no sister survive her, then to the issue of each deceased sister who may leave issue surviving said Alice, per stirpes.</p> <p>“Seventh: I give and bequeath to my Executors hereinafter named the sum of Fifty thousand dollars, in trust nevertheless during the life.of my daughter Gertrude W- Youngs, to invest the same in such stocks or other securities whether real or personal, public or private, as to said trustees may seem best, with full power of changing the same and with like power of reinvestment, and to apply the interest and income to be derived therefrom to the use of my said daughter Gertrude W. as it shall accrue, but not in advance, during her natural life, subject to the qualifications hereinafter expressed and the powers hereinafter given, namely: First: On the written</p> <p>request of my daughter, Gertrude W., duly acknowledged by her, as deeds of married women are acknowledged, to invest the whole or any part of one-half of the principal sum that shall be held for her benefit in the payment in whole or in part for the purchase of a house and land for and in the name of said Gertrude W„ the conveyance to be made to her in her own name in fee; or said one-half of said principal sum shall on her written request or receipt be paid to her for her own use in any way she may so direct, and she shall thereafter hold such house and land or such money so to be paid over to her free from any trust and for her own use. Second: I give to my said daughter Gertrude W., power by Will, or instrument in the nature thereof, to dispose of such part of said principal sum of Fifty thousand dollars ,as shall remain subject to the trusts herein mentioned, to or among such one or more of her issue, if she have any, and in such proportions as she may see fit; and in default of such disposition or appointment, I give such part of said principal sum of money as shall remain at her death, subject to the trusts herein mentioned to her issue surviving her equally per stirpes; and, in case there be no issue, said part of said principal sum shall pass to her sisters, who shall survive her, equally; or if no sisters survive her, then to the issue of each deceased sister who may leave issue surviving said Gertrude per stirpes, and the trustees of such fund shall, on the respective contingencies herein provided for, transfer any property held by the trustees in this clause mentioned, to the persons to whom it is herein declared that the same are to belong or to pass.</p> <p>“Eighth: I give to Josephine G. Youngs, daughter of my son Graham Youngs, the sum of One thousand dollars.</p> <p>“Ninth: If there shall not be enough of my personal estate, (exclusive of articles specifically bequeathed) to pay the above mentioned pecuniary legades In full after paying my debts and funeral and Testamentary expenses, said pecuniary legacies shall each abate pro rata. If there shall be any surplus of my personal estate, exclusive of article specifically bequeathed after paying said debts and funeral and testamentary expenses and also said pecuniary legacies in full, such surplus shall be collected by my executors, including among other things debts due to me from my two sons, Graham and Edward, respectively, and from others, and shall be divided into four equal shares, one share to go to my said daughter Lavine; another share to go to my said daughter Fanny Henrietta; another share to go to the trustee of my said daughter Alice E. and then over for the same trusts and purposes, and for the samé persons and estates and with the like powers as are herein given in relation to the principal sum hereinbefore given to or for the benefit of said Alice E.; the other share to go to the trustees for my said daughter Gertrude W. and then over for the same trusts and purposes, and for the same persons and estates and on the same contingencies and with the like powers as are herein given in relation to the principal sum hereinbefore given to or for the benefit of said Gertrude W.</p> <p>“Tenth: I charge the shares of the lands herein devised to my sons Graham Youngs and Edward A. Youngs, respectively, with the payment to be made to my Executors of all debts that they respectively may owe to me at my decease, and with all advances that I have made, or shall make to them respectively ; the same when collected to be deemed part of my personal estate and to pass accordingly.</p> <p>“Eleventh: After the death of my wife, I give, devise and bequeath to my sons Graham Youngs and Edward A. Youngs, and their heirs, as tenants in common, subject to the same interest or Estate in favor of my wife (and the charges herein made thereon) all and so much of my lands (except my salt meadow) in the Town of Oyster Bay as lies Northerly of a line which is described as follows; that is to say: Beginning at a point formed by the intersection of the Northerly side or line of the road leading to my house from the highway which runs from Oyster Bay to Cold Spring, and running thence North sixty-four degrees and thirty minutes East, twenty-three chains along the Northerly side of said first mentioned road to a white oak tree now standing near my dwelling house; thence North sixty degrees and. six minutes, five chains and fifty two links to a chestnut tree on the East side of the wood near to the orchard; thence North eighty-one degrees East, seven chains and thirty links to a marble monument bearing the initials of my name, thence North seventy-eight degrees East eight chains and six links to a chestnut tree a little North of the gate near my barn in the back field; thence North fifty degrees East nine chains and eighty two links to another marble monument bearing the initial letters of my name, just south of the gate at the wood adjoining land now or late of Oliver H. Jones, and running thence along the division line between my land and the land now or late of said Jones to the shore and water at Cold Spring Harbor, together with all my rights, claim, title and estate of any and every nature and kind, whatever in and to the lands under water in front of the same, and all water rights and privileges therein or thereto, together with all the buildings on said lands so devised, and I give, devise and bequeath to my said sons Graham and Edward A. their heirs and assigns as tenants in common, a right of way from said highway and along and on the Southerly side of the line so described and established to the road or lane which leads over part of the land so devised to them, from a point at or near the land now or late of said Jones to Cold Spring Harbor. To the devisees of the land in the next clause mentioned and to their heirs and assigns I give, devise and bequeath a right of way over said last' mentioned road or lane from the point last named to Cold Spring Harbor, such rights of way respectively to include the right of passage each way along said lane and over said road or lane by them and their servants and with horses, cattle and other animals, and with carts, wagons, and other vehicles, and such matte$s or things as may be loaded thereon or attached thereto.</p> <p>“Twelfth: After the death of my wife, I give and devise to the Executors of my Will in trust as hereinafter mentioned, but subject to the said estate or interest in behalf of my wife and to the charges herein made thereon, all of my lands in said Town of Oyster Bay lying Southerly of the said line as so above described and established between said public road or highway and said Cold Spring Harbor, and including my house and lands at Cold Spring Harbor; subject nevertheless to the right of way so as above given and devised to my said sons Graham and Edward, and their heirs, and with the right of way devised in the preceding Eleventh clause of this Will to the devisees in this twelfth clause, the said Executors to have and to hold the lands and rights devised in this clause in trust to receive the rents and profits thereof during the life of my son Alfred Youngs, and to apply the same to his use during his natural life, and after his death the said lands and rights in this clause devised shall pass to my said sons Graham and Edward as tenants in common in fee.</p> <p>“Thirteenth: After the death of my wife, I give and devise one undivided third part of all my salt meadow at Oyster Bay to my said executors on the same trusts during the life of my son Alfred as are declared in the preceding twelfth clause, and after his death the said one third shall pass to my two sons Graham and Edward as tenants in common in fee. The other two undivided third "parts of said salt meadow, I give and devise after the death of my wife to my two sons Graham and Edward and to their heirs as tenants in common.</p> <p>“Fourteenth: All the rest, residue and remainder of my estate, real and personal, if any, including all that may lapse, if any, I give, devise and bequeath to my- two sons Graham Youngs and Edward A. Youngs, and to my four daughters Lavine, Alice E., Gertrude W., and Fannie Henrietta, and to their heirs as tenants in common.</p> <p>“Fifteenth: In case of the death of any child of mine before me, if he or she leave any issue surviving me, such issue shall take per stirpes the share intended for such deceased child of mine; if he or she leave no issue the share intended for him or her shall fall into and form part of my residuary estate; the preceding provision to apply only where no different provision is made.</p> <p>“Sixteenth: Any sums of money that I have advanced or shall advance to either of my two sons Graham and Edward shall be a charge on any estate, real or personal, that may come from me to the son to whom the advance has been or shall be made.</p> <p>“Seventeenth: The provisions herein made for my wife are to be in full bar satisfaction and discharged of her dower and of every interest or claim that she may make as my widow or otherwise to any part of my estate, real and personal, whether it shall have lapsed or not.</p> <p>“Eighteenth: I nominate, constitute and appoint my said wife Henrietta Graham Youngs and my daughter Fannie Henrietta Youngs the Executors of this will and the Trustees under the several trusts herein created. And I authorize them as such Executors and the survivor of them with the concurrence of my wife if she be then living, to sell such portions of my lands including those at Oyster Bay free from any charge, and from any estate in any one, as to said Executors or the survivor of them may seem expedient. The proceeds of any such sale to pass in the same manner as the lands to be sold would have passed if such lands had not been sold. All the estates, powers and authority and discretion in this will given to, vested in, or conferred upon my executors or trustees herein appointed, are given to them and the survivor of them and to such one or more of them as shall be qualified and take upon themselves or herself the execution of this Will.</p> <p>“Nineteenth: Having heretofore advanced to my son Edward A. Youngs the sum of Seven thousand five hundred dollars, I give notwithstanding anything hereinbefore contained the right to said principal sum of money without any interest, to my said wife Henrietta Graham Youngs for her own sole benefit, and do make the same a charge in her favor only, on the share of lands devised by my said Will to said Edward A. Youngs.</p> <p>. “Lastly: I do hereby revoke all former Wills and codicils heretofore made by me, declaring this to be my last Will and Testament.</p> <p>“In witness whereof, I have hereto set my hand and seal this twentieth day of March, in the year of our lord eighteen hundred and eighty-two.</p> <p>“[Seal.] Thos. F. Youngs.</p> <p>“Signed, sealed, published and declared in nine pages, by said testator, as and for his last Will and testament and by him subscribed at the end thereof, in the presence of ns, who thereupon, in his presence, at his request, and in the presence of each other, have subscribed our names as witnesses and our residences.</p> <p>“The word ‘for’ on 2nd page, and the words ‘and including my house and land at Cold Spring Harbor’ on 6th page interlined before execution. The words ‘to the persons’ on 3rd page being repeated are cancelled once, and the words ‘in this clause’ on 7th page are cancelled once before execution.</p> <p>“Edwd Mitchell 45 West 55th St. New York City</p> <p>“Wm. Mitchell Jr. No 60. West 9th St N. Y. City</p> <p>“Wm. Mitchell do. do. do.</p> <p>“In the Name of God, Amen!</p> <p>“I, Thomas F. Youngs, of the town of Oyster Bay, Long Island, the testator in the annexed Will, dated the Twentieth day of March, 1882, do make, publish and declare the following as a Codicil to my said Will.</p> <p>“First: Having learned of the death of my beloved son Edward A. at Manila, about the third of September last, and he having left no issue, I revoke the devises and bequests in said Will made to him, or for his benefit. As to all the property and» rights in said Will purporting to be given to him, or intended for his benefit, whether real or personal, or given or intended for him solely or individually or as tenant in common with his brother Graham or any other person, I give, devise and bequeath all such property and rights to my son Graham and his heirs forever, in addition to the property and rights or share of any property and rights already given or intended by said Will to or for said son Graham. The said property and rights, whether given to said son Graham by said Will or by this codicil to be possessed at the time prescribed in said Will as to devises to said Graham, and the title in him to vest on my death, said property and rights to be subject to the payment by said Graham and his heirs and issue of the principal sum of Thirty thousand dollars advanced, by me lately to said Graham, and of the further sum of seven thousand five hundred dollars advanced by me to my said son Edward A. in his lifetime, or due by him to me; and to be subject to the payment also by said Graham and his heirs and issue, of all debts that said Graham shall owe to me at my decease, and of all advances that I may hereafter make to him; and I do hereby charge ail the property and rights that shall pass from me to my said son Graham or his issue at my decease with the payment of all the advances and debts in this clause mentioned. The advances not to be charged with any interest that might accrue during my life, but to bear interest from the date of my death, the debts to bear interest according to law. The payment of said Seven thousand five hundred dollars to be made to my, wife, if she survive me, and if she do not survive me, then to pass as in the fourth clause of this Codicil is provided. The payment of said advances to, and debts of said Graham, to be made to my executors, and the same to be deemed part of my personal estate, and to pass as my personal estate should pass udder said Will and this Codicil; said payment to be made at the end of one year from my death, or then to be secured by a first mortgage on all the property and rights that shall pass from me to my said son Graham, or his issue, or such part thereof as my Executors may deem safe; such mortgage to be made payable as to the principal on or before the death of my wife, and as to the interest, half yearly, and to be accompanied by the bond of the mortgagor.</p> <p>“Second: The tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth and sixteenth clauses in said Will are to be deemed so modified as to conform to the intent of this Codicil, and I revoke the Nineteenth clause of said Will.</p> <p>“Third: The power of sale of lands devised by me to my Executors is hereby restricted to sales to be made in the lifetime of my. wife, and with her concurrence.</p> <p>“Fourth: In case of the death of my wife before me, the right to the possession as well as the title to any lands, shall vest on my death immediately in those to whom the lands respectively are devised, after my wife’s death, and the right to the possession as well as the title to any personal estate given or intended to be given, by said Will or Codicil, to her for life, or absolutely, shall vest on my death immediately and absolutely in my children, Graham, Lavine, Alice E., Gertrude W. and Fannie Henrietta, equally to be divided between them. The provisions in Section 15 of the Will (as to death of any such child before me) shall apply to such personal estate.</p> <p>“In Witness Whereof, I, the said Thomas IP. Youngs, have hereto set my hand and seal, this twenty fifth day of October in the year of our Lord eighteen hundred and eighty two. Thomas F. Youngs [L. S.]</p> <p>“Signed, sealed, published and declared in three pages, by said Testator as a codicil to his last Will and Testament, hereto annexed, and forming with it his last will and Testament, said Codicil being also subscribed by him at the end thereof, all done in the presence of us, who in his presence, at his request, and in the presence of each other, have subscribed our names hereto as witnesses and our residences. The word ‘thousand’ on 3rd line from foot of 1st page; the word ‘intent’ on last line second page being written on erasures, and the word ‘Lavine’ on 3rd page written partly on erasure.</p> <p>“Edwd. Mitchell, 45 West 55th Street New York City.</p> <p>“Wm. Mitchell, Jr, No 60 West 9th St. N. Y.</p> <p>“Wm. Mitchell do do”</p> <p>Third. That the said Thomas F. Youngs left hiip surviving, at the time of his death, as widow, only heirs at law, and next of kin and legatees, as follows: Henrietta Graham Youngs, Fannie Henrietta Youngs, Lavine G. Meyer, Alice E. Nash, Gertrude W. Youngs (now, Gertrude W. Cheever), Alfred Youngs, and Graham Youngs.</p> <p>Fourth. That the said Graham Youngs departed this life April 9, 1887, and after the testator, leaving his last will and testament of real and personal property, which was admitted to probate by the surrogate of the county of Suffolk, and duly recorded in his office as such, and is as follows:</p> <p>“I, Graham Youngs, of Babylon, County of Suffolk, State of New York, do make publish and declare the following as and for my last Will and Testament, that is to say:</p> <p>“I. I direct my Executor hereinafter named to pay my just debts and funeral expenses.</p> <p>“II. I give and bequeath to my wife Ada C. Youngs the sum of one dollar.</p> <p>“III. I give, devise and bequeath to my daughter Josephine Graham Youngs the sum of Ten dollars.</p> <p>“IV. All the rest, residue and remainder of my estate, both real and personal, of which I shall die seized or possessed, or to which I shall be entitled, I give devise and bequeath to the Knickerbocker Trust Company of the City of New York, in trust however for the following uses and purposes. I direct my said Trustee, the Knickerbocker Trust Company, to pay over for the support education and maintenance of my son, Graham Youngs, the income of my said estate, or if in its discretion it may deem proper from the principal of said estate, until my said son shall arrive at the age of twenty-one years. When my said son shall arrive at the age of twenty-one years, I direct my said Trustee to pay over to him the entire principal of my said estate.</p> <p>“V. I make constitute and appoint The Knickerbocker Trust Company to be the Executor of this my will and Trustee hereunder.</p> <p>“In Witness Whereof, I have hereunto set my hand and seal, the sixteenth day of December in the year of our Lord One thousand Eight hundred and eighty six. Graham Youngs. [L. S.]</p> <p>• “Signed, sealed published and declared by the said Graham Youngs as and for his last Will and Testament, and by him subscribed in the presence of us and each of us, who thereupon in his presence and at his request and in the presence of each other have subscribed-our names as witnesses thereto, and he acknowledged to us and each of us the execution of the said last Will and Testament. The words ‘William J. Youngs of Oyster Bay’ on first page of this paper erased before execution. Also the words ‘his’ and ‘he’ on line 22 of the first page hereof stricken out and the words ‘its’ and ‘It’ inserted in place thereof before execution.</p> <p>“Henry A. Root, 23 West 24th St New York City,</p> <p>“Edwd W. Starr, 151 Monroe Street^ Brooklyn, New York.</p> <p>“Jos. Foulke, Nutley, N. J.”</p> <p>Fifth. That the Knickerbocker Trust Company of the City of New York, whom the said Graham Youngs appoints in his will executor and trustee, refused to qualify as such, and duly renounced, and thereupon his widow, Ada C. Youngs, was duly appointed as administratrix with the will annexed of his estate, and also guardian of his two infant children, Graham Youngs and Josephine Graham Youngs, and these two last are the only children and heirs at law of the said Graham Youngs.</p> <p>Sixth. That the said Graham Youngs never accepted the above devises made in his favor, but neglected and refused to receive the same, or to act under them, or to become vested with the estate so devised to him, or to assume or become subject to, or chargeable with, any of the liabilities, which would follow on his receiving the said legacies, devises, or the benefits thereof.</p> <p>Seventh. That the legacy and other amounts set forth in the complaint, and to recover which this action is instituted, are as follows: A legacy of a debt of Edwin A. Youngs to the testator amounting to $7,500, which is given to the testator’s widow, the plaintiff, Henrietta Graham Youngs. An advance of $30,000, made by the testator to the said Graham Youngs before the testator’s death. The sum of $9,262.23, the indebtedness of said Graham Youngs to the firm of Youngs & Co., which the said testator assumed with Graham’s knowledge and assent.</p> <p>Eighth. That as to the interest on the said sums the testator directs that Interest be paid on the $7,500, given to his widow, from his death; also, that interest be paid on the $30,000 from his death, and that as to the indebtedness of $9,262.23 interest shall run on that according to law.</p> <p>Ninth. The last two amounts are directed to be collected by the plaintiffs the executrices and trustees, and when so collected are to be distributed by them under the will.</p> <p>Tenth. The lands which are the subject-matter of this action consist of about 365 acres. As the whole estate is subject to the widow’s life estate, and after her death that part which composed the testator’s dwelling house and farm adjoining it are subject to another life estate during the life of his son Alfred, I have caused separate descriptions to be proved, showing, first, the part which is subject to the life estate for the benefit of his son Alfred Youngs after the widow’s death, and another description, showing the remaining part of said lands which after the widow’s death is subject to no life or other estate or lien. Such descriptions are as follows: * * *.</p> <p>Eleventh. That the said land, if sold at public sale, free from or unincumbered by any liens or life estates, would probably bring the amount herein-before stated. Said lands would bring only a nominal price if sold at public sale, and incumbered as they now are by the two life estates above mentioned.</p> <p>Twelfth. The lands which form the subject of this action may, with the concurrence of the widow of testator, be sold free and clear of all charges and of any life estate under the power of sale contained in the will of Thomas F. Youngs.</p> <p>I further report, as a matter of law:</p> <p>First. That all the said lands are subject to the life estate of the said Henrietta Graham Youngs for her life.</p> <p>Second. That on her death a part of the said lands remain devised in fee to the plaintiffs, in trust for the benefit of Alfred Youngs for his life. These lands are one-third of the salt meadow tract and the mansion house and lands appurtenant to it, in the preceding description described as forming the southerly part of the residence of the late Thomas F. Youngs.</p> <p>Third. That all of the lands which form the subject of this action, subject to the two life estates of the testator’s widow and in favor of his son Alfred, are chargeable with the three legacies mentioned in the will; that the first legacy is $7,500, and is payable to the complainant, the widow, Henrietta Graham Youngs, with interest from the testator’s death to the date of my report, and amounts to $11,001.90; that the remaining two amounts chargeable on the lands amount to $39,262.23; that this amount is payable to the plaintiffs, as executrices and trustees of and under the last will and testament of Thomas F. Youngs, deceased, to be by them disposed of as directed by said last will and testament, and, with interest at the date of my report, amounts to $57,595.75.</p> <p>Fourth. That subject to the two life estates in favor of the widow and the son Alfred, and subject to and charged with these three amounts, the said lands have descended to and are now vested in fee simple in the heirs at law of the said testator as tenants in common as follows: Fannie Henrietta Youngs, one-sixth; Lavine G. Meyer, one-sixth; Alice B. Nash, one-sixth; Gertrude W. Cheever, one-sixth; Alfred Youngs, one-sixth; Graham Youngs, one-twelfth; and Josephine Graham Youngs, one-twelfth.</p> <p>Fifth. That a judgment or decree in the form settled by me and herewith reported be entered, directing that the said lands, or so much thereof as may be necessary for the payment of the said legacies, interests, and the. costs and expenses of this action, taxes, and other legal charges thereon, be sold under the direction of this court, subject to the aforesaid life estates of Henrietta Graham Youngs and Alfred Youngs, and, after the payment of the aforesaid amounts, such amount as may then remain of such proceeds be brought into and deposited with the court, according to law.</p> <p>Sixth. That the said lands being unsalable, and incumbered as they are by the two life estates, it should be directed that said lands be sold free and clear of all charges and life estates, and in accordance with such equitable provisions as may be set forth in the decree hereinafter to be entered; but such directions cannot be given except upon the consent of the executors and the concurrence therein of the widow of Thomas F. Youngs.</p> <p>Seventh. That the plaintiffs have their costs and expenses, and the attorneys for the other parties to this action their costs to be taxed, with an allowance to each of the guardians ad litem.</p> <p>All of which is respectfully submitted.</p>

Suit by Katharine W. Komp, as administratrix of the goods, chattels,, and credits of Albert Komp, jr., deceased, against Arthur S. Luria. Decree for an accounting to plaintiff by defendant.

<p>1. Trial—Advisory Verdict—Conclusiveness on Court.</p> <p>. Where a trial by jury is not a constitutional or statutory right, but the court seeks the aid of the jury in determining questions of fact, it may adopt, modify, or disregard the findings of the jury.</p> <p>.2.. Gifts—Transfer of Bank Accounts—Character of Transfer—Question of Fact.</p> <p>Whether a mother, in having her account in a savings bank made out in the name of herself and daughter, “or the survivor of them,” intended to and did give her daughter a joint interest with- her in the account, with the attendant absolute ownership of the entire fund in case of survivorship, or whether the account was so made out as a mere matter of convenience in drawing money from the bank, held, under the evidence, a question of. fact.</p> <p>' 3. Witnesses—Competency—Qualifications.</p> <p>Witnesses riot shown to be qualified to express an opinion on the subject are incompetent to testify that certain securities are of doubtful value.</p> <p>.4. Wills—Revocation of Bequest—Intent of Testatrix—Evidence.</p> <p>On an issue of the intent of testatrix in transferring savings bank deposits to her daughter, and in bequeathing such deposits to her daughter in her will, and in later revoking the bequest by codicil,, testimony that securities bequeathed by testatrix to her .son had-, become of doubtful value was immaterial, in the absence of further testimony that the decrease in value of the securities occurred after the transfer of the bank account was made. • • ,</p> <p>5. Gifts—Intent—Evidence.</p> <p>_ On the issue of the intent of a mother, in transferring bank deposits to her daughter, where there was nothing to show that the transfer was a tentative one, but it appeared to be either for the purpose of vesting a joint interest in the account or for the mere purposes of convenience, evidence of a codicil made by the mother to her will, by which she revoked a bequest of the bank deposits to her daughter, was inadmissible.</p> <p>Parker, P. J., dissenting, and Houghton, J., dissenting from paragraph 5.</p>

Action by John McQueen against the Delaware, Lackawanna & Western Railroad Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Application, on the relation of the Dental Society of the State of New York, for a writ of mandamus to Jacob V. Jacobs, clerk of the county of Rensselaer. From an order denying the writ, relators appeal. Affirmed.

Action by John H. Atwood against the First National Bank of the city of New York, in which Edward J. Armstrong and another were substituted as defendants. From a judgment for plaintiff, defendants appeal. Affirmed.

<p>1. Pleadings—Variance—Grounds of Relief Ubged.</p> <p>A deed cannot be set aside by the court on the ground of undue influence where the complaint alleges only fraud as a ground of relief, and is not amended.</p> <p> O </p> <p>2. Deeds—Undue Influence—What Constitutes. '</p> <p>Inducing one to sign a deed in the belief that the instrument is a will does not constitute undue influence.</p> <p>8. Same—Evidence—Sufficiency.</p> <p>Evidence held insufficient to show that a deed executed by plaintiff, a self-reliant woman, conducting her own business, owning considerable property, and only 59 years of age, to defendant, her nephew, on whom she was not dependent, and who was not living with her, was procured by undue influence of the latter.</p> <p>4 Same—Fraud—Evidence—Sufficiency.</p> <p>Evidence held insufficient to show that the execution of a deed drawn by a reputable attorney was procured by a fraudulent representation to the grantor that she was signing a will.</p> <p>6. Same—Ratification.</p> <p>One who, after making a discovery that an instrument which she signed under the belief that it was a will was in fact a deed, remained entirely passive, and made no suggestion of the fraud when she consulted an attorney to have the deed set aside, and subsequently accepted a paper, signed by the grantee, in which the latter undertook to take care of the grantor’s husband during the remainder of the husband’s life, ratified the fraud by which the deed was procured.</p>

Action by George Floyd Vingut and another, as trustees under the will of Elizabeth F. Floyd, deceased, against James W. Ketcham and others. From an order vacating a sale by a referee on condition, defendants James W. Ketcham and Henry B. Sire appeal. Affirmed.

<p>1. Abortion—Attempt to Commit—Defense—Feigned Complicity.</p> <p>Where defendant, charged with an attempt to commit abortion, was arrested by officers concealed in an adjoining room after he had placed the patient on an operating table, arranged his instruments, and was about to begin the operation, it is no defense that the arrest was made pursuant to a previous agreement between the patient and the officers.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 42.]</p> <p>2. Same—Sufficiency of Evidence.</p> <p>Pen. Code, § 34, provides, “An act done with intent to commit a crime and tending, but failing to effect its commission, is an attempt to commit the crime.” Section 294 provides, “A person who, with intent thereby to procure a miscarriage of a woman, or of the child with which she is pregnant, * * * uses, or causes to be used, any instrument or other means,” is guilty of committing an abortion. Held, that placing a pregnant woman on an operating table, in a position to be operated on, coupled with evidence of the intent to produce an abortion, is sufficient to constitute an attempt to commit abortion.</p> <p>3. Criminal Trial—Instructions.</p> <p>The refusal of an instruction is proper where the principles therein stated have been fully covered by other instructions.</p> <p>[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, § 2011.]</p>

Action on a note by James Megowan and another against Charles G. Peterson. From a judgment for plaintiffs, and an order denying a new trial, defendant appeals. Reversed.

<p>Taxation—Assessment.</p> <p>Laws 1883, p. 100, c. 114, as amended by Laws 1885, p. 302, c. 163, provided for the reassessment of delinquent taxes on Brooklyn real estate by the board of assessors, in such an amount as was just and equitable, without reference to defects in previous levies, which had accumulated to such an amount as to be greater than the value of the property; and section 2 declared that the board should keep a record, in which should be entered Its determination as to the amount to be charged against “each parcel of land,” “designating the same by the block and lot numbers on the assessment maps in their office.” Held, that where plaintiffs owned an undivided interest in one of four separate lots, which were duly platted and shown on one of the assessment maps of the city, the other three lots being owned by others, a reassessment levied jointly on the four lots was invalid.</p>

<p>1. Complaint—Motion to Make Mobb Definite.</p> <p>Motion to make the complaint for breach of warranty more definite, to show whether the action is in tort or contract, is properly denied, all the allegations of the complaint being appropriate to the statement of a cause of action on the case in tort.</p> <p>2. Bill of Pabticulabs.</p> <p>Defendant’s application for bill of particulars before issue is properly denied, he being given leave to renew it after joinder of issue.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 974-976.]</p>

Suit by Charlotte Lilianthal and another, as executors of the estate of Joseph Lilianthal, deceased, against Israel Lesser and others. From a decree in favor of plaintiffs, defendants appeal. Affirmed.

<p>Appeal from Special Term, Kings County.</p> <p>Action by Holton M. Crotty against De Dion-Bouton Motorette Company. From an order retaxing plaintiff’s costs, he appeals. Reversed.</p>

- Action by John Ladrick against the village of Green Island. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal—Effect- of Reversal.</p> <p>A judgment merely reversing an order appointing commissioners to assess damages for change of grade of a street, on the ground that before such an order could be made the issues raised by the answer must be tried, though not in terms directing a trial of such issues, authorizes it.</p>

Action by Alberta P. Tracy and others against Catherine Ealvey and others. From an order granting plaintiffs’ motion for a jury trial on the issues, defendants appeal. Reversed. See 88 N. Y. Supp. 1118. This action was commenced In 1894, and was noticed for trial at Special Term in June, 1896, but was not then tried.

<p>1. Justices—Appeal—Review.</p> <p>A justice’s judgment is not reversible by the county court as against the weight of the evidence, unless so plainly against the preponderance of proof that it can be seen that the justice could not reasonably have arrived at the decision.</p> <p>[Ed. Note.—For cases in point, see vol. 31, Cent. Dig. Justices of the Peace, §§ 716-718.]</p> <p>2. Same—Evidence—Sufficiency.</p> <p>In an action for damage to land and crops by the diversion of a water course, evidence held, sufficient to sustain the finding for plaintiff. «</p>

Action by George N. Seger, as administrator of the estate of Louisa Schaeffler, deceased, against the Farmers’ Loan & Trust Company and another. From a judgment for defendant Farmers’ Loan & Trust Company, plaintiff appeals. Reversed.

Action by the Rockland Lake Trap Rock Company against the village of Port Chester, impleaded with others. From a judgment in favor of plaintiff for less than the relief demanded, both parties appeal. Affirmed.

Lawrence County. Action by Ellen E. Gore against Franklin P. Gore. From an order (89 N. Y. Supp. 902) directing defendant to pay to the plain- ■ tiff counsel fees, defendant appeals. Affirmed.

Action by James Shaiie against the National Biscuit Company. From a judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial, it appeals. Affirmed.

Mandamus by the people, on the relation of Ezra Carman, against Charles F. Lewis, as treasurer of Nassau County. From an order directing the issuance of a peremptory writ, defendant appeals. Modified.

Proceedings on the probatfe of an alleged last will of James Warnock, deceased. Appeal by Thomas W. Anderson and Robert J. Anderson, executors and legatees named in the alleged last will and testament, from a decree of the Surrogate of Washington county denying probate to said will,, and awarding costs against the. appellants personally. Reversed.

<p>CABBIEBS—ÜONVEBSION OF ' GOODS—DEFENSES—TITLE IN CABBIES.</p> <p>A common carrier, when sued for conversion of goods delivered to it for transportation, cannot set up title in itself for the purpose of defeating a recovery, but evidence of its ownership is admissible on the question of damages.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Maria Schuessler and another against the Fire Insurance Company of the County of Philadelphia. From a judgment for plaintiffs, defendant appeals. Affirmed.</p>

Action by Frederick Rivenburgh against the First National Bank' of Middleburgh. From a judgment for defendant, plaintiff appeals. Reversed. Upon the 5th day of March, 1904, John D. King was sick at the house of the plaintiff, where upon the 24th day of March thereafter he died.

<p>Appeal from Special Term, Jefferson County.</p> <p>Action by Joseph Marrian against'Leo H. Robbins. Prom a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Helene M. Maigille (Frank W. Boyer, assignee) against Frank H. Leonard. From an order adjudging defendant guilty of contempt in disobeying an order in supplementary proceedings, and imposing a fine for contempt, he appeals. Modified.

<p>Railroads — Crossing Accident — Contributory Negligence — Evidence —Question for Jury.</p> <p>In an action for injuries in a collision at a railroad crossing, evidence held to require submission of the issue of plaintiff’s contributory negligence to the jury.</p> <p>Woodward, J., dissenting.</p>

Proceedings for the incorporation of the village of Webster. From a judgment sustaining the canvass of an election held on the proposition for incorporating the village, resulting in a declaration by the board of canvassers that the proposition for the incorporation was carried, objectors appeal. Reversed.

Action by the people, on relation of George W. Bush and another, against Byron D. Houghton and another. From a judgment in favor of relators, defendants appeal. Reversed.

<p>Injunction—Contract with City—Parties.</p> <p>An action cannot be maintained by a taxpayer against the contractor and officers of a city to restrain the performance of a contract made in behalf of the city, without making the city a party defendant.</p> <p>[Ed. Note.—For cases in point, see vol. 36, Cent Dig. Municipal Corporations, §§ 911, 2150-2152, 2198.]</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by the Bank of America against John H. Waydell and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

Application by George S, Scofield for a peremptory writ of mandamus against the board of aldermen of the city of New York and another to compel the board of aldermen of said city to meet and canvass the vote of Richmond county. From an-order denying the application, petitioner appeals. Affirmed.

Action by Louisa Schlotterer, an infant, against the Brooklyn Sr New York Ferry Company. From an order denying defendant’s motion to modify the order made on the trial of the motion for a new trial on the minutes by striking therefrom the recital that the same was made on filing the stenographer’s minutes, defendant appeals. Reversed. See 85 N. Y. Supp. 847.

Action by James N. Butterly against James A. Deering, Charlotte L. Chase, and Clark B. Augustine. From an order striking out the names of defendants Chase and Augustine, and changing the form of the complaint from one in equity to one at law, plaintiff and defendants Chase and Augustine appeal. Affirmed.

<p>Appeal from Special Term, Queens County.</p> <p>Action by John J. Boyle against the Standard Oil Company of New York. Appeal by plaintiff from an order changing the place of trial. Affirmed.</p>

Action by Elizabeth M. Weigand against Alexander Weigand for separation. From an order denying plaintiff’s application for alimony, and making an allowance of only $50 for counsel fees, she appeals. Modified.

<p>Appeal from Special Term, New York County.</p> <p>Action by Joseph Emrich against Max Goldstein and another. From a judgment for plaintiff, -defendants appeal. Reversed.</p>

<p>Insurance—Insurance Brokers—Contracts with Insured—Construction.</p> <p>A contract whereby defendant constituted plaintiff its agent to procure fire insurance for 10 years, and agreed to pay plaintiff at the uniform rate of $4 per year for every $100 of insurance procured, obligated plaintiff, in the event of the cancellation by the insurer of a live annual policy for which defendant had paid plaintiff the stipulated commissions, to take out, at his own expense, another policy for a like amount for the unexpired portion of the year originally covered by the canceled policy.</p> <p>[Ed. Note.—For cases in point, see vol. 28, Cent. Dig. Insurance, § 130.]</p>

Action by Moses Tanenbaum against the Federal Match Company. The court directed a verdict for plaintiff, and defendant’s exceptions to such ruling were ordered to be heard in the first instance in the appellate division. Exceptions sustained.

Action by the people of the state of New York against the Metropolitan Mutual Savings & Loan Association. From an order confirming the report of the referee appointed to determine the questions raised by the claimants to a preference in the distribution of the assets of the defendant in the hands of its receiver, Delilah Good and others appeal. Affirmed.

Action by Lemanda J. Irish, as administratrix of Algy J. Irish, deceased, against the Union Bag & Paper Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. . Plaintiff sues as administratrix of Algy J. Irish, deceased, to recover damages for the death of said Irish, caused, as it is claimed, by the defendant’s negligence. Defendant is the owner of sulphite mills at Fenimore* in Washington county.

Action by Thomas M. Acken, as director, against Edward W. Coughlin and another. From an order granting a motion for a receiver and an injunction during pendency of the action, defendants appeal. Modified.

<p>Appeal from Special Term, Jefferson County.</p> <p>Action by the county of Jefferson against the county of Oswego. From a judgment for defendant, plaintiff appeals. Affirmed.</p>

<p>Contracts—Consideration—Natural Love and Affection.</p> <p>An executory contract, the only consideration tor which Is natural love and affection, is unenforceable.</p> <p>[Ed. Note.—For cases in point, see vol. 11, Cent Dig. Contracts, §§ 286-290.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Guiseppe Sinischalchi against Amiello Baslico. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed.</p>

<p>Evidence—Memorandum—Independent Evidence.</p> <p>It was error for the court to read as original evidence a memorandum made by a witness which was available only to refresh the witness’ memory, if necessary.</p> <p>[Edi Note.—For cases in point, see vol. 50, Cent. Dig. Witnesses, § 892.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District.</p> <p>Action by James W. Furman against Constantine Galanopulo. From a judgment for defendant, plaintiff appeals. Reversed.</p>

<p>Carriers—Negligence—Action—Evidence—Sufficiency.</p> <p>Where an open street car, which was on fire, came to such a sudden stop as to hurl a passenger to the pavement, in an action for the injuries it was error to direct a nonsuit on evidence showing such facts, since, if the motorman stopped the car, his conduct was plainly negligent, and if the fire caused the sudden stoppage the burden was on defendant to explain the cause of the accident</p>

<p>Street Railroads—Injuries to Pedestrians—Contributory Negligence.</p> <p>It is not contributory negligence, as a matter of law, for a person to-cross a street railway track between two motionless cars.</p>

Action by Rose Keough against the Interurban Street Railway Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Reversed.

<p>Pebsonal Injuries—Pleading and Evidence.</p> <p>Admission of evidence in a personal injury case that certain injuries were permanent is error, where such fact is not pleaded.</p>

<p>On Reargument. Judgment affirmed.</p> <p>For former opinion, see 91 N. Y. Supp. 115.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Lizzie McNeill against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the Globe Lithographing Company against Meyer R. Bimberg and others. From a Municipal Court judgment in favor of •defendants, plaintiff appeals. Reversed.</p>

Certiorari by the people, on the relation of one Boehm, to review an assessment for taxation. Order for reference to try question of overvaluation.

Action _ by Sarah Narinsky against the Eidelity Surety Company, as attorney in fact, and representing John W. Newberry and others, underwriters of the Eidelity Insurance Association, on a fire policy on a stock of goods. Erom a judgment for plaintiff, defendant appeals. Affirmed.

Action by Lucy O’Hara, an infant, by her guardian ad litem, against the Brooklyn Heights Railroad Company. From an order denying a motion for a new trial on the ground of newly discovered evidence, defendant appeals. . Reversed.

<p>Appeal, from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Lyman Goldberg against Samuel Ziegler and another. From a judgment for plaintiff, defendants appeal. Reversed.</p>

<p>Pleadings—Effect as Evidence—Comments by Court.</p> <p>Pleadings are before the court and jury, and may be read and commented upon for the purpose of defining the issue, and showing what part of the allegations is admitted, without having been formally put in evidence.</p> <p>[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 279-283.]</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.</p> <p>Action by Henry Chiert, an infant, etc., against the Interurban Street Railway Company. From a Municipal Court judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

<p>Connecting Cabbiees—Shipment Beyond Initial Cabbieb’s Line—Liability.</p> <p>The mere receipt of goods marked for a place beyond the terminus of the initial carrier’s route does not import a contract to carry them to destination, but in the absence of special contract the initial carrier is only responsible to the extent of its own route, and for safe delivery to the succeeding carrier.</p> <p>[Ed. Note.—For cases in point, see vol. 9, Cent. Dig. Carriers, §§ 779, 781.]</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Angela Franchi against Angela Tirelli. From a judgment sustaining a demurrer to defendant’s first defense, and sustaining the complaint as stating facts sufficient to constitute a cause of action, defendant appeals. Affirmed.</p>

<p>Joint Contract—Sufficiency of Evidence.</p> <p>Evidence that defendant had a beneficial interest in plaintiff’s work and materials, and that he knowingly accepted the same, is sufficient to render him liable on the contract made by his codefendant with plaintiff, whether defendants were partners or not</p>

<p>1. - Depositions—Obdeb fob Examination—Failure to Give Notice.</p> <p>An order appointing a referee to take the deposition of a witness should be vacated where no notice of the application therefor was given to the adverse party’s attorney.</p> <p>[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Depositions, § 45.]</p> <p>2. Same—Sufficiency of Affidavit.</p> <p>An affidavit for an order for the examination of a witness is insufficient where it fails to state any facts, but merely the attorney’s conclusions, as to the necessity of the examination.</p> <p>[Ed. Note.—For cases in point, see vol. 16, Cent. Dig. Depositions, § 50.]</p>

<p>sale by Sample—Time fob Inspection.</p> <p>Though the purchaser by sample is entitled to a reasonable time for examination, hats accepted after inspection cannot be returned a week later because they were crushed or bent and were “oft color.”</p> <p>[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 811-813.]</p>

<p>Assignments—Witnesses—Interest—Evidence.</p> <p>Where, in an action on an assigned claim, defendant denied that plaintiff was the assignee thereof, and the assignor was plaintiff’s only witness, it was error to refuse to permit such assignor to be asked on cross-examination whether he was still interested in the result of the suit, to show his interest as a witness.</p>

Action by Owen Toher against John V. Schaefer, Jr. From an order imposing a larger sum than $10 on plaintiff as a condition of his right to amend the pleading, he appeals. Dismissed. See 91 N. Y. Supp’. 3.

<p>1. Pleadings—Amendment—Conditions—Payment of Costs.</p> <p>Where, after the reversal of a judgment on appeal, defendant was bound to be' defeated and to be mulcted in costs as the record then stood, she should be allowed to amend only on the payment of the costs already accrued.</p> <p>2. Appeals—Appealable Obdebs.</p> <p>An order granting defendant leave to amend is not appealable, under the Municipal Court act (Laws 1902, p. 1486, c. 580).</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Charles Herbert Carr against the Pennsylvania Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.</p>

<p>1. Pleadings—Admissions—Effect.</p> <p>An admission in the answer of an allegation of the complaint is not binding on defendant where plaintiff fails to rely upon it, and introduces evidence to controvert his own allegations.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, § 82.]</p> <p>2. Gabeiebs—Actions Against Cabbieb—Presumption of Ownership.</p> <p>Consignors cannot sue the carrier for breach of the contract of carriage, in the absence of evidence to rebut the presumption of ownership of the goods by the consignee.</p> <p>3. Same—Delay—Delivery—Questions of Fact.</p> <p>Whether a tender of delivery to the consignee by a city delivery company on Monday of goods intrusted to it by the consignor on the preceding Saturday was made within a reasonable time was a question of fact.</p>

<p>Appeal from Special Term, Westchester County.</p> <p>Action by Emma C. Kene, as executor of the will of Cornelius E. Kene, deceased, against Rosalie L. Hill and others. From a judgment for plaintiff, defendants appeal. Affirmed.</p>

Action by Michael Maher against the Metropolitan Street Railway and the American Ice Company. From a judgmént for plaintiff and an order denying a motion for a new trial, both defendants separately appeal. Affirmed as to the ice company, and reversed as to the street railway company.

<p>1. Discovery—Examination of Books—When Granted.</p> <p>An order permitting plaintiff to examine defendant’s books for the purpose of framing a complaint should be granted, although plaintiff has sufficient information to frame his complaint without such an examination, where the contract on which the action is brought gives plaintiff the right of inspecting defendant’s books-and papers.</p> <p>[Ed. Note.—For cases in point,, see vol. 16, Cent. Dig. Discovery, § 111.1</p> <p>2. Same—Provisions of Order.</p> <p>Where plaintiff’s right to an examination of defendant’s books for the purpose of framing his complaint will be preserved by authorizing such an examination at defendant’s place of business, in ordinary course, during business hours, the order granting the examination should provide accordingly.</p>

<p>Master and Servant—Wrongful Discharge of Servant—Items . of -Damage.</p> <p>A traveling salesman, who was wrongfully discharged before the termination of the period for which he was employed, was entitled to recover the salary which he would have earned during the balance of his term, but not hotel bills and traveling expenses paid by him after his discharge.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 50-53.]</p>

Action by Mary F. Cushman, as executrix of Thomas H. Cushman, deceased, against Harry C. Cushman, individually and as executor of Paul Cushman, deceased, and others. From an interlocutory judgment sustaining demurrers to the complaint, plaintiff appeals. Reversed.

<p>Cabbiers—Injuries to Passengers—Contributory Negligence.</p> <p>Where an open street car had reached its destination, and the conductor had cried, “All out!” a passenger, who was incumbered with small children, had the right to assume that the step or running board had been properly adjusted, and that she could leave the car in safety, and was not guilty of contributory negligence, as a matter of law, in stepping off the car without looking to see, and observing that the running board was not in place.</p>

Action by Julia Earle, administratrix of the estate of Patrick Donohue, deceased, against the Clyde Steamship Company. From a judgment for plaintiff and an order denying a motion for a new trial (89 N. Y. Supp. 500), defendant appeals. Reversed.

Application of Joseph H. Adolph and others to lay out a highway in the town of Highlands, and for an assessment of damages therefor. Motion, under section 90 of the highway law, to confirm an order of the County Court directing the laying out of a highway less than three rods in width. Application granted.

Action by the Giebler Manufacturing Company against Christian Kranenberg and another. From a Municipal Court judgment in favor of defendants, and from an order denying a motion for a new trial, plaintiff appeals. Reversed.

<p>Good Wili^Sales—Contract—"Violation—Injunction.</p> <p>S., on the dissolution of the firm of which he was a member, agreed with plaintiff that he would not directly or indirectly re-engage in • a similar business within the state. Thereafter, a competing business having been established within the state, plaintiff alleged that such business was being conducted both by defendant S. and his son in violation of the agreement, and that they threatened and intended to establish a similar competing business in other cities where plaintiff had stores, in violation of the agreement. Held, that a temporary injunction restraining S. from conducting or engaging in such business was not erroneous, in so far as it refused to restrain him from assisting his son in the conduct of his business to the extent of loaning him money.</p>

<p>Appeal from Municipal Court, Borough of Queens, First District.</p> <p>Action by Emma Burns against the Manhattan Brass Mutual Aid Society. From a judgment in favor of plaintiff, defendant appeals. Affirmed.</p>

Action by Frank Harvey Field against Josiah J. White. From an order denying a' motion to resettle a prior order, directing that the prior order stand in full force, and commanding defendant to appear and submit to an examination in supplementary proceedings on a date specified, he appeals. Dismissed.

Action by Peter E. Swenson against the Wilson & Baillie Manufacturing Company. Judgment in favor of defendant, and cause heard on exceptions directed to be heard in the first instance by the Appellate Division. New trial granted.

Action by Wanda Wuest against the Brooklyn Citizen. From a judgment in favor of defendant, and from an order denying plaintiff’s motion for a new trial (76 N. Y. Supp. 706), plaintiff appeals. Reversed.

<p>Pleading—Allegation as to Damages—Striking on Motion.</p> <p>It was error to strike from a complaint an allegation of damages on motion at Special Term; proper practice requiring determination of the question by a demurrer or upon a trial, either at the opening thereof, or when evidence is offered, or at the close of the case, by motion to the court.</p>

Action by the Phoenix Bridge Company against Daniel J. Creem and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal. Affirmed.

<p>Appeal from Judgment on Report of Referee.</p> <p>Action by Theodore Westendorf and others, as executors of Rudolph Hilbrand, against Ferral C. Dininny, Jr. From a judgment in favor of plaintiffs, defendant appeals. Modified.</p>

Appeal frbm Trial Term, Westchester County. Action by Fred M. Shanklin against Charles A. Brown and another. From a judgment in favor of defendants, and from an order denying a motion for a new trial on the minutes, plaintiff appeals. Affirmed.

<p>1. Attorney and Client—Establishment of Relationship.</p> <p>In order to constitute the relation of attorney and client, it is not necessary that the attorney should have appeared as attorney in legal proceedings ; but where it is shown that an attorney is consulted to extricate a person from his difficulties, and the attorney undertakes to act for the person consulting him, the relation exists.</p> <p>[Ed. Note.—-For cases in point, see vol. 5, Cent. Dig. Attorney and Client, §§ 85, 86.]</p> <p>2. Same—Fiduciary Capacity—Attorney and Client—Transfer to Attor-</p> <p>ney-Burden of Proof.</p> <p>Where an attorney accepts a transfer of property from his client, the burden is on the attorney, when the-transaction is assailed, to establish that the transfer was a fair one, and that the client understood its terms and conditions.</p> <p>[Ed. Note.—For cases in point, see vol. 5, Cent. Dig. Attorney and Client, §§ 239-249.]</p> <p>3. Same—Transfer of Property—Transfer Induced by Fraud—Suit for</p> <p>Rescission—J ud qment.</p> <p>Where, by agreement between plaintiff and defendant, plaintiff was to transfer to defendant half of plaintiff’s interest in a lease, and defendant was to pay certain debts and judgments against plaintiff, and apply the rents to the payment of a mortgage, and thereafter defendant was to recelve half of the rents for a specified period, but defendant fraudulently induced plaintiff to execute a transfer of the entire lease, in an action by plaintiff to have the transfer declared void or declared one in trust, and reformed, and for an accounting, a judgment setting aside the transfer in its entirety, and for an accounting by defendant, so that the amount of the rents received by him might be ascertained, was proper.</p>

Action by George C. Rankin, as receiver of the Elmira National Bank, against John J. Bush and others. From an interlocutory judgment overruling a demurrer to the complaint, and from an order overruling the demurrer interposed to the amended complaint, and directing an interlocutory judgment to be entered, defendants appeal. Interlocutory judgment affirmed. Appeal from order dismissed.

Action by Leila H. B. Kissam against Grant Squires. From a judgment for defendant, plaintiff appeals. • Reversed. This action was brought by a client against an attorney to compel him to account to her for moneys which she had paid to him for the purpose of having him safely invest it in 6 per cent, real estate mortgages in the city of New York. The referee, upon the rendition of the defendant’s account, found that there was nothing with which the defendant was chargeable.

Action by Lillie Lane and others against the Equitable Life Assurance Society of the United States, and W. Morton Garden, individually, and as executor of George W. Kidd, deceased. From an order discharging defendant society from all liability in the action on paying into court a specified sum, with interest, defendant Garden, individually and as executor, etc., appeals. Modified.

Action by Betsie Freedman and another against William Oppenheim. From a judgment directing the specific performance by the defendant of a contract for the exchange of real property, defendant appeals. Reversed.

Action by Beadleston & Woerz against Charles R. Furrer. From a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. Reversed.

Action by Henry Kremer against the New York Edison Company. There was a verdict in favor of plaintiff for $19,000, and from a judgment for $20,083.14 entered thereon, and an order denying a motion for a new trial, defendant appeals. Affirmed.

Action by George Leask and others, as executors of the estate of Oliver W. Buckingham, deceased, against J. Harvie Dew. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. This action was brought to recover upon a promissory note given by the defendant to the plaintiffs’ testator.

Action by Eugene Lentilhon against the city of New York. Plaintiff was nonsuited, and his motion for a new trial heard in the first instance on exceptions in the Appellate Division. Affirmed.

Action by John W. Sterling, executor of the will of Edwin S. Chapin, deceased, against Albert IC. Chapin individually and as executor of the will of Edwin S. Chapin. From a judgment on the report of a referee, and also an interlocutory judgment directing a copartnership accounting, defendant appeals. Reversed.

Action by the Elmira Realty Company against Judson A. Gibson and others. From a judgment affirming a judgment of the City Court of Elmira for plaintiff, defendants appeal. Dismissed.

Action for the death of an employé by Aurora M. Holm, administratrix of the estate of Theodore M. Holm, deceased, against the Empire Hardware Company. The complaint was dismissed, and plaintiff moved for a new trial on exceptions, which was ordered to be heard in the first instance at the Appellate Division. Motion denied.

Action by John G. Carlisle against Reon Barnes. From a judgment in favor of plaintiff, and from orders denying a motion for a new trial and to relieve defendant from the judgment, he appeals. Affirmed. See 92 N. Y. Supp. 924.

Action by John G. Carlisle against Reon Barnes. From an order denying a motion to vacate a judgment in favor of plaintiff, and denying a new trial (90 N. Y. Supp. 810), defendant appeals. Affirmed.

<p>1. Boundaries—Evidence—Declarations.</p> <p>Evidence of the declarations of the owner of a lot that the fence thereon standing was the boundary of the lot is admissible as bearing on the extent or nature of his possession, but not to establish title.</p> <p>2. Same—Harmless Error.</p> <p>The error, if any, in admitting evidence of declarations of a former lot owner as to the boundary line, was harmless where the evidence was ' rendered immaterial by establishing the boundary by other evidence.</p>

Action by Manley W. Brown against George H. Huber. Plaintiff had judgment in the absence of defendant, and from an order denying a motion to set aside the judgment, and the execution issued thereon, and to allow him to defend the action on the merits, defendant appeals. Affirmed.

Action by Arabella D. Huntington, executrix of Collis P. Huntington, deceased, and another, against Sylvester H. Kneeland and others. From a judgment of foreclosure and sale entered on the decision of the court, defendants appeal. Affirmed.

• Action by Albert L. Johnson and another against the Atlas Improvement Company and another. From a judgment for defendants after trial of the issues, plaintiffs appeal. Affirmed.

Action by Pierre Reynolds against the president and trustees of the village of Ossining for services as attorney rendered by plaintiff at the request of the village board of health, claim for which was rejected by the trustees, the auditing board. From a judgment for plaintiff, defendants appeal. Reversed.

Action by Jennie H. Van Veghten against the Hudson River Power 'Transmission Company. From a judgment in favor of plaintiff for less than the relief demanded, both parties appeal. Affirmed. The action is for damages for an alleged nuisance.

<p>Ripabian Owners—Dams—Construction of Deed.</p> <p>Where plaintiff’s grantor conveyed to defendant’s grantor the right to build a dam across a river and abut the same against the bank on the farm of plaintiff’s grantor, reserving “all water rights, and privileges to use the same from said dam,” plaintiff could not compel defendant at its own expense to construct an opening in the dam in order that plaintiff might use the water.</p>

Condemnation proceedings by the Waterford Electric Light, Heat & Power Company against Kate E. Reed and others. From an order sending a report of the commissioners back to them for correction, plaintiff appeals. Reversed. The order appealed from is one sending a report of commissioners appointed in condemnation proceedings back to them for further report.

In the Matter of the Application for Revocation of letters testamentary issued to the American Security & Trust Company on the will of Andrew J. Avery. Letters revoked. Andrew J. Avery died, leaving a last will, which was admitted to probate in September, 1902, and letters testamentary were thereupon issued to the American Security & Trust Company (hereinafter called the “Trust Company”), of Washington, D. C„ the executor named in said will.

<p>Power of Attorney—Execution—Signature—Proof.</p> <p>In an action on a policy of insurance executed by an attorney in fact acting under a power which was not acknowledged or dated, but purported to be signed by the principal and witnessed by a certain person, the witness testified merely that his signature was attached to the instrument, and that he witnessed the principal’s name thereto, but was unable to state the date when the instrument was executed, and did not testify that he saw the principal sign, or that he was present when the principal signed; and there was no evidence of the principal’s handwriting, and no other evidence that the power was ever signed by him. Held, that the signature of the power was not sufficiently proven to justify the admission of the instrument in evidence.</p> <p>Laughlin, J., dissenting.</p>

Action by C. S. Washington against Orlando F. Thomas and another. From an order denying a motion by defendant Thomas to change the place of trial, he appeals. Reversed.

Action by William H. Virden against Orlando F. Thomas and another. From an order denying a motion by defendant Thomas to change the place of trial, he appeals. Reversed.

Action by Edward F. Hitchcock against Benjamin Wimpleberg. From an order denying defendant’s motion to vacate a judgment in favor of plaintiff, or to correct it to conform to the verdict, and to strike out a provision therein awarding costs to plaintiff (92 N. Y. Supp. 298), defendant appeals. Affirmed. The action is brought in replevin to recover the possession of a watch claimed to belong to the plaintiff.

<p>Appeal from Special Term, New York County.</p> <p>Action by the Knight & Wall Company against Orlando F. Thomas and another. From an order denying a motion by defendant Thomas to change the place of trial, he appeals. Reversed.</p>

Action by the American Exchange National Bank against the American Hotel Victoria Company and another. From a judgment in favor of plaintiff, defendant hotel company appeals. Reversed.

Action by Belle Furlong against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, it appeals. Reversed.

Action by William H. Robinson against the Metropolitan Street Railway Company. From a j'udgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Action by Horace L. Dyer, as trustee in bankruptcy of Michael R. Brown, against Herman Kratzenstein and others. From a determination of the Appellate Term affirming a judgment of the City Court dismissing the complaint, plaintiff appeals. Affirmed.

Action by Amelia S. Meinrenken, as administratrix of the estate of Gustave D. Meinrenken, deceased, against the New York Central & Hudson River Railroad Company. From the judgment' in favor of plaintiff, defendant appeals. Reversed.

<p>Legal Partnership—Accounting—Injunction Restraining Party from Claiming Funds.</p> <p>In an action for a partnership accounting between lawyers, defendants cannot be enjoined, on motion supported by affidavits, from claiming a fund asserted by plaintiff to be a fee for individual services, and by defendants to be the property of the firm; but it should be left with the court, where it has been deposited pending the accounting.</p>

<p>Adoption—Inheritance—Amendment of Statute—Effect on Existing Relations.</p> <p>A child adopted under Laws 1873, p. 1243, c. 830, which expressly excluded the right of inheritance from the rights acquired by an adopted child, may nevertheless inherit from her adopting parent, where such parent died subsequent to the enactment of Laws 1887, p. 909, c. 703, amending the act of 1873, by including within the rights acquired by adoption the right of inheritance.</p> <p>[Ed. Note.—For cases in point, see vol. 1, Cent. Dig. Adoption, §§ 35-40.]</p> <p>Van Brunt, P. J., dissenting.</p>

Action by Mary J. Delaney against Charles P. Kelly and others, as the board of trustees of the United States Letter Carriers Mutual Benefit Association. From a judgment for plaintiff (92 N. Y. Supp. 265) entered on a directed verdict, and from an order denying a motion for a new trial, defendants appeal. Reversed.

<p>1. Action—Partial Defense—Demurrer.</p> <p>Code Civ. Proc. § 508, provides for a partial defense in an answer, but that it must be expressly stated to be a partial defense. In an action to recover for services, the defense was that it had been agreed that a sum to be fixed by defendant should be received in satisfaction of the services, but that plaintiff had refused to accept the sum as fixed; but there was no tender, nor was the money brought into court. Held, that the defense was a partial one, and demurrable because not pleaded as required.</p> <p>2. Same—Answer—Demurrer.</p> <p>In an action to recover for legal services, the answer set up that the services were rendered between the dates alleged in the complaint, but that, by an agreement between the parties before the services were rendered, it was understood that plaintiff was to accept a sum to be fixed by defendant, which had been fixed, but that plaintiff refused to accept such sum. Held, that the answer was demurrable, in that it did not connect the agreement alleged with the services for which a recovery was sought.</p> <p>Patterson and Laughlin, JJ., dissenting.</p>

In the matter of the application of Minnie Shapiro, the mother of Albert Hammerman, to obtain certain information concerning said child from the New York Foundling Hospital. From an order granting a motion directing said foundling hospital to furnish extracts from its records, it appeals. Reversed.

Action by George Ebbitt against Edward F. Milliken and another. From a judgment entered on the verdict, and from an order denying a motion for a new trial, defendants appeal. Reversed.

<p>Appeal from Trial Term, New York County.</p> <p>Action by James G. Blaine against Edward R. Thomas and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.</p>

Action by William McWhirter against Abner T. Bowen and others. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants Bowen and Busey appeal. Modified.

Action by Dora E. Schreiber against Henry G. K. Heath. From a judgment in favor of plaintiff, and from an order denying defendant’s motion for a new trial, he appeals. Reversed.

Action by E. Virgil Neal against Henry C. Abel. From the judgment defendant appealed, and, his death being suggested, the action was revived and continued against Sarah Abel, his administratrix. Modified.

Action, by William James against Libby, McNeil & Libby. From a judgment of the Appellate Term (88 N. Y. Supp. 812) reversing a judgment of the City Court entered on a verdict of the jury, plaintiff appeals. Reversed.

Action by Isidor Straus-and others against the American Publishers’ Association and others. From a judgment (92 N. Y. Supp. 153) overruling a demurrer to a separate defense, plaintiffs appeal. Affirmed.

Action by the Sloss Iron & Steel Company against the Jackson Architectural Ironworks. Verdict was directed for defendant. Motion for new trial by plaintiff on exceptions ordered to be heard in the first instance by the Appellate Division. Exceptions sustained, and new trial granted.

<p>Appeal from Appellate Term.</p> <p>Action by Richard Hennessey against the Forty-Second Street, Manhattanville & St. Nicholas Avenue Railway Company. From a judgment in favor of plaintiff, affirmed by the Appellate Term (88 N. Y. Supp. 728), defendant appeals. Reversed.</p>

<p>1. Sales—Novation.</p> <p>Where, after the sale of goods to an individual, the business was incorporated, and the corporation requested the delivery of the goods under the contract to it, and made payment on account of such goods, a novation was effected, and the corporation was substituted for the original purchaser, as debtor of the seller.</p> <p>FEd. Note.—For cases in point, see vol. 12, Cent. Dig. Corporations, § 1790; vol. 37, Cent. Dig. Novation, § 5.]</p> <p>2. Same.</p> <p>An express agreement is not requisite for a novation or substitution of parties to a contract, as it tnay be implied.</p> <p>3. Same—Release op Purchases.</p> <p>Where, after the sale of goods to an individual, the business was incorporated, and the seller assented, and looked to the corporation for payment, it relinquished all claims against the original purchaser personally, and the novation would be a good defense to any claim by the seller against him.</p> <p>[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Novation, § 10.1</p>

Action by Jessie MacKenzie against Albro R. Carman and another, impleaded. From a judgment in favor of plaintiff, and from an order denying a motion for a new trial, defendant Carman appeals. Reversed.

Action by Barnett Hamburger and another against Myer Heilman. From a judgment of the Appellate Term reversing a judgment in favor of plaintiffs and dismissing the complaint (90 N. Y. Supp. 1060), plaintiffs appeal. Reversed.

Action by Horace G. Knapp against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, and from an order denying plaintiff’s motion for a new trial, it appeals. Reversed.

<p>L Guaranty—Action against Principal.</p> <p>Under a guaranty of payment for work on failure of the principal debtor to pay, proceedings against such debtor are not a necessary condition to action against the guarantors.</p> <p>[Ed. Note.—For cases in point, see vol. 25, Cent. Dig. Guaranty, g 89.]</p> <p>2. Same—Assignment—“Duly.”</p> <p>The allegation of the complaint in an action against guarantors by the assignee of a guaranty that, with the knowledge and consent of defendants, the guaranty was “duly” assigned, is a sufficient statement that whatever was necessary to a valid assignment was done.</p> <p>[Ed. Note.—For cases in point, see vol. 4, Cent. Dig. Assignments, § 221.]</p> <p>3. Same—General Guaranty.</p> <p>A contract by M. to build a synagogue for a congregation being assignable, a guaranty to pay him for the work if the congregation fail to do so is a general, and not a special, guaranty, so that M. may assign it with the contract, and the guarantors be liable to the assignee.</p> <p>[Ed. Note.—For cases in point, see vol. 25, Cent. Dig. Guaranty, § 35.]</p>

Action by Jacob Rothschild and others, as executors and trustees under the last will of Simon Goldenberg, deceased, against Minnie B. Wise and others. From a judgment entered on the report of a referee, the executors and Wise and others appeal. Modified.

Action by the American Mortgage Company against Henry' B, Sire and others. From an order requiring Sigmund Feuchtwanger to pay a sum of money to Bryan E. Kennedy as receiver appointed in such action, or, in the event of his failure so to do, that he be adjudged guilty of contempt, he appeals. Reversed.

Mandamus by the people, on relation of Hugh Mclnnes, against the Columbia Paper Bag Company and another. From an order granting a peremptory writ, defendants appeal. Modified.

<p>Appeal from Trial Term, New York. County.</p> <p>Action by Philip Hanau against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals Reversed.</p>

<p>Costs—Ret axatíon—Appeal.</p> <p>Under Code Civ. Free. § 3264, providing that the court may in its discretion, on the application of a party interested, direct a retaxation of costs at any time, a, motion for relaxation promptly made was not affected by an appeal from the judgment taken, and undertaking given, by defendant.</p>

Action by Isaac Benyakar against John E. Scherz. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. Reversed.

Action by Harry Wilson and another against the Louisville & Nashville Railroad Company and others. From an interlocutory judgment overruling a demurrer to the complaint, defendants appeal. Reversed.

Action by Carrie A. S. King and another, as executrices, etc., against George Irving. From an order directing that an execution issue against income received under a will, defendant appeals. Reversed.

Action by Albert Bandman against William E. Finn. Verdict was directed, on defendant’s motion, for less than plaintiff claimed. 89 N. Y. Supp. 504. Motion by plaintiff for a new trial on exceptions to be heard in the first instance in the Appellate Division. Exceptions sustained, and new trial granted.

Action by Frederick R. Meres against James G. Emmons as underwriter on a fire policy. From a judgment for plaintiff after trial without a jury, defendant appeals. Reversed.

<p>1. Payment by Check—Time of Payment.</p> <p>Where a debtor’s attorney gave the creditor the attorney’s personal check, and the creditor surrendered the client’s note, and the attorney requested the creditor to refrain from depositing the check for collection for a day or two, although he did not make it a condition of the delivery of the check, and the request was complied with, payment of the client’s indebtedness by such check took place when the check was given and the note surrendered.</p> <p>2. Bankbuptcy—Insolvency.</p> <p>On an issue as to whether a debtor was insolvent, within the meaning of the bankrupt act, at the time that he gave a certain transfer, the fact that late in the afternoon of the same day he conveyed nearly all his remaining property, thereby rendering himself insolvent within the meaning of the bankrupt act,' did not, on the theory that fractions of a day are not to be considered, render him insolvent at the time of the former transfer.</p> <p>3. Same—Question fob Juey.</p> <p>On an issue as to whether one to whom a transfer was, made by a debtor had reasonable cause for believing that the debtor was insolvent, within the meaning of the bankrupt act, at the time, evidence considered,, and held that the question was one for the jury.</p>

<p>Life Insurance—Deduction of Unpaid Premiums—Premiums Payable Semiannually.</p> <p>A “privilege and condition” On the back of a life policy, providing that, if premiums are paid in semiannual installments, any installment which, at the maturity of the contract, is necessary to complete the full year’s premium, shall be deducted from the amount of the claim, which is declared by the policy to form a part of the contract, applies only to those policies which on their face reserve an annual premium, and has no application to a policy which expressly grants the assurance in consideration of the payment of semiannual premiums.</p> <p>Patterson and Laughlin, JJ„ dissenting.</p>

Action by Joseph Ward, Jr., and another, against William E. R. Smith and others.. From an order, as resettled, denying their motion to strike the cause from the calendar of the Special Term, the plaintiffs appeal Reversed#

Judicial settlement of the estate of Harriot Erving, deceased. From an order of the Surrogate’s Court directing George Leask and another,-executors, to pay Merced D. M. Greene and others, petitioners, a balance on certain legacies, both parties appeal. Modified, o

Certiorari by the people, on relation of Patrick A. Meehan, against Francis V. Greene, as police commissioner of the city of New York. From an order directing a further return of the writ, respondent appeals. Reversed.

<p>Action by Mary A. Baehr, as administratrix, etc., against the Lake Shore & Michigan Southern Railway Company.</p>

<p>Action, by Manuel Andrews, as administrator, etc., against the Alaska Packers’ Association and the J. K. Armsby Company.</p>

<p>Action by John T. Asmussen against the Metropolitan Street Railway Company. O. F. Brown, for appellant. - F. E. Blackwell, for respondent.</p>

<p>Action by the American Ice Company against the Catskill Cement Company.</p>

<p>In the matter of the probate of the will of Leonora Post Banks, deceased.</p>

<p>Appeal from. Municipal Court, Borough of Manhattan, Third District. Action by Bertha Berger against Adelaide La Grasse. From a judgment for plaintiff, defendant appeals. Reversed. Davis & Williams, for appellant. Benjamin Berger, for respondent.</p>

<p>Action 6y Edward 6. Bishop against the United States Casualty Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. Action by Charles Block against Jacob Nathanson. Judgment for plaintiff, and defendant appeals. Reduced and affirmed. McKee & Frost, for appellant. Max Schleimer, for respondent.</p>

In the matter of the petition of John Borup for the appointment of commissioners to assess damages to his property, etc.

<p>Appeal from City Court of New York, Trial Term. Action by Charles Breterman and another against Ettie Adler and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed. Benjamin Reass, for appellants." Henry Kuntz, for respondents.</p>

<p>In the matter of the application of the Brooklyn, Queens County & Suburban Railroad Company for a writ of mandamus, etc.</p>

<p>Action by George W. Burger against the Frick Company.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by Abe Bruder against Emma R. Klenke and another. From a judgment for defendants, after a trial without a jury, plaintiff appeals. Affirmed. .Tacón I. Wiener, for appellant. Albert G. Sharkey, for respondent.</p>

<p>Action by Milo Burns against the Old Sterling Iron & Mining Company.</p>

<p>Action by Frank O. Clark against the Metropolitan Street Railway Company. A. S. Bacon, for appellant. C. F. Brown, for respondent.</p>

<p>Action by Eugene J. Coleman and another against the New York Central & Hudson River Railroad Company.</p>

Action by Samuel H. Christenfeld against Max Davidson and another. From a Municipal Court judgment in favor of plaintiff, defendants appeal. Reversed. Joseph J. Harris, for appellants. Steuer & Hoffman (Max D. Steuer, of counsel), for respondent.

<p>Action by Charles M. Cohnfeld against Leon Tanenbaum. S. M. Stroock, for appellant. G. Weiffenbach, for respondent.</p>

<p>Action by Joseph. De Vitto against the .Wilson & Baillie Manufacturing Company.</p>

<p>Action by Lillian Cooke, an infant, by Jesse A. Cooke, her guardian, against Theodore Church.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by the Electrical Equipment & Inspection Company against Frank O. Archibald. From a judgment for plaintiff, defendant appeals. Affirmed. Philip Carpenter, for appellant. Goldsmith & Rosenthal, for respondent.</p>

<p>Action by George I. Eldridge against Anna Corning.</p>

Action by Michael F. Foley and another against the Lehigh Valley Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed. Alexander & Green (W. C. Prime, of counsel), for appellant. John H. Regan, for respondents.

<p>Action by Paul B. Flynn, as executor of the last will and testament of Mary M. McDermott, deceased, against Michael F. McDermott, as executor of the last will and testament of John McDermott, deceased.</p>

<p>Action by William Franklin against William H. Beegle and others.</p>

<p>"In the matter of the judicial settlement of the account of Amelia Gall, as administratrix, etc., of Joseph Gall, deceased.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Thirteenth District. .Action by Isador Frankel against Samuel Stockman arid another. From a judgment for plaintiff, defendants appeal. Reversed. Ignace Irving Apfel, for appellants. Charles Frankel, for respondent.</p>

<p>Action by Henry Ginnegaw and another against Anna Coming.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, Second District. Action by Francis Gottsberger against the Pennsylvania Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed. Robert B. Austin, for appellant. Norman B. Beecher, for respondent.</p>

<p>Action by Anna Halsey against William Hollands, as administrator, etc., and another.</p>

<p>Action by Albert E. Hadlock, as receiver, etc., of Eduard Giebeler, against Eduard Giebeler and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District. Action by the Haverhill Box Board Company against Coy, Hunt & Co. From a judgment for plaintiff, defendant appeals. Reversed. Robinson & Robinson, for appellant. J. S. Lehmaier, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District. Action by Thomas 0. Holmes against the Interurban Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. H. A. Robinson, for appellant. W. S. Bennett, for respondent.</p>

<p>Action by James Kennedy against Anna Corning.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Sixth District. Action by James Mc-Creery & Co. against Albert P. Oppenheim and others. From a judgment for defendants, after a trial before the court without a jury, plaintiffs appeal. Reversed. Gould & Wilkie (Arthur F. Gotthold, of counsel), for appellants. Bandler & Haas, for respondents.</p>

<p>Action by Joseph A. Jones against Stephen R. Cole.</p>

<p>Appeal from Special Term, New York County. Action by the L. D. Garrett Company against William A. Clarke. From a judgment for plaintiff (87 N. Y. Supp. 579), defendant appeals. Reversed. Alfred B. Cruikshank, for appellant. Edgar J. Nathan, for respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Joseph Marmorstein against Moses Harlam. From an order setting aside a verdict, plaintiff appeals. Reversed. David Gerber, for appellant^ Maurice B. Blumenthal, lor respondent.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Antonio Maniscalco against the Maritime Society of Sciaeca. From a judgment for plaintiff, defendant appeals. Affirmed. John J. Freschi, for appellant. Guiseppe L. Maggio, for respondent.</p>

Action by Vincenzo Turnillo against the Pennsylvania Railroad Company. Continued after settlement by Achille J. Oishei, plaintiff’s attorney, to enforce an attorney’s lien on the proceeds of a private settlement between the parties. From a judgment in favor of such attorney, the railroad company appeals. Reversed. Norman B. Beecher, for appellant. Thomas J. O’Neill, for respondent.

<p>Action by Orlando S. Osterhout and another against William Wiley.</p>

<p>Action by William Orr against Anna Corning.</p>

<p>Proceedings by the people of the state of New York against the Metropolitan Savings & Loan Association.</p>

Proceedings by the Seople of the state of New York against the few York Building-Loan Banking Company. Petition by Anna Marion, a stockholder, asking that the receiver of defendant be required to pay petitioner the excess between the amount paid by her to defendant and the amount paid by it on her behalf. From a decree determining the amount due petitioner,- she appeals. Modified. Charles R. Hall, for appellant. Charles W. Dayton, for respondent.

Louis Zabor was convicted of violating Pen. Code, § 290, by selling cigars to one Edward Gluck, a male child actually and apparently under the age of 16 years, and he appeals. Affirmed. For former opinion, see 90 N. Y. Supp. 412.

Proceedings by the people of the state of New York, on the relation of Mary H. Cunningham and others, against Thomas L. Feitner and others. tax commissioners of the city of New York.

<p>Proceedings by the people of the state of New York, on the relation of the Rochester Gas & Electric Company, against George E. Priest and others, state board of tax commissioners, and Charles F. Pond and others, as assessors of city of Rochester.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by Louis Pierce against Sol H. Apple. From a judgment in favor of defendant, plaintiff appeals. Reversed. I. Cohn, for appellant. Mc-Burney & McBurney, for respondent.</p>

<p>In the matter of the removal of Henry H. Post from the offices of trustee of the village of Gouverneur, N. Y., and president of the board of water commissioners of said village.</p>

<p>Action by Edward B. Ripsom against John De Courcey Ireland.</p>

<p>Action by Gaetano Rióla against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Martin H. Randall, as administrator, against the Holbrook, Cabot & Daly Company. B. Scharps, for appellant. B. Patterson, for respondent.</p>

<p>Action by Margaret Riddock against the Brooklyn Heights Railroad Company.</p>

Action by Charles Ries and another against Rudolph Stark. From a Municipal Court judgment in favor of plaintiffs, defendant appeals. Reversed. Henry A. Doellinger, for appellant. Charles Brandt, Jr., for respondents.

<p>Action by Abram Rpsenbloom against Frazier M. Dolbeer and another.</p>

<p>Appeal from Special Term, Kings County. Action by Louisa Schlotterer, an infant, etc., against the Brooklyn & New York Ferry Company. From an order extending plaintiff’s time to serve amendments to a proposed case on appeal, defendant appeals. Reversed. See 85 N. Y. Supp. 847. John J. Kirby (John Delahunty on the brief), ■ fw appellant. Alfred E. Sander, for respondent.</p>

<p>Action by Louisa Schlotterer, an infant, etc., against the Brooklyn & New York Ferry Company.</p>

<p>Action by Annie Serano, an infant, etc., against the New York Central & Hudson River Railroad Company.</p>

<p>Action by Joseph Shoenblum against the city of New York. T. Farley, for appellant. F. B. House, for respondent.</p>

Action by Charles H. Sproessig, Jr., against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying a motion for new trial on the minutes, defendant appeals. Affirmed. Bayard H. Ames and F. Angelo Gaynor, for appellant. Wager, Acker & Wager, for respondent.

<p>Action by Amy Snider against the Metropolitan Street Railway Company. C. F. Brown, for appellant. P. D. Trafford, for respondent.</p>

<p>Action by Silas T. Swan against Edward C. Inderlied.</p>

Action by Myrtle M. Thompson against Basil W. Rowe, as treasurer of Adams Express Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed. Paul N. Turner, for appellant. Guthrie, Cravath & Henderson (Joseph Diehl Fackenthal, of counsel), for respondent.

Action by Alberta P. Tracy and others against Catherine Falvey and others. From an order granting plaintiffs’ motion for a new trial on the issues, defendants appeal. 'Reversed. Edward W. S. Johnston, for appellants. Nelson Shipman, for respondents.

<p>Action by the town of Clarendon against the Medina Quarry Company.</p>

<p>Action by William- Trott against Valentin Schmitt.</p>

<p>Action by Catherine Van Epps against Levi Brooks and. others.</p>

<p>Action by John Wahl and another against Anna Corning.</p>

Action by Robert E. Westcott against the Fidelity & Deposit Company of Maryland. From a judgment granting insufficient relief, plaintiff appeals. Affirmed. E. H. Benn, for appellant. Albert B. Boardman, for respondent.

<p>Action by Elizabeth B. Williams and others against Albert G. Hatch.</p>