Volume 93 — New York Appellate Division Reports

<p>Sale on credit induced by false representations to a, commercial agency — that the vendee intended to pay for the goods does not disprove fraud— when a finding that the vendee did not intend to pay for the goods is necessary.</p> <p>Where the president and treasurer of a corporation makes false and fraudulent statements concerning the financial condition of the corporation to a commercial agency, with knowledge of their falsity, for the purpose of having such statements reported to the subscribers of the commercial agency and of securing credit from such subscribers, a subscriber of the commercial agency, who, in reliance upon such false and fraudulent statements reported to him by the agency, sells goods to such corporation on credit and is not paid therefor, may, although no false representations were made by the president of the corporation directly to him, rescind the sale of the goods ón the ground of fraud.</p> <p>The fact that the president of the corporation believed at the time of the purchase that the corporation could and would pay for the goods will not sustain a finding that no fraud was committed.</p> <p>While a finding that the purchase was made with a design not to pay for the goods might be necessary where there were no false representations, but merely a failure to disclose a condition of insolvency, such a finding is not required where false representations -are made and relied upon and damage results therefrom.</p>

<p> Sale of goods on credit induced, by false representations —the fact that the vendee believed on reasonable grounds that he could pay for the goods does not disprove fraud—•when a finding that the vendee did not intend to pay for the goods is immaterial. </p> <p>A person who sells goods to a corporation upon credit,.in reliance upon false and fraudulent statements concerning the financial condition of the corporation, made to him by the president and treasurer of the corporation with knowledge that such representations were false, may, if he does not receive payment for the goods at the expiration of the term of credit, rescind the sale upon the ground of fraud.</p> <p>The fact that the president of the corporation believed, and had reasonable grounds for such belief,.that the corporation w~uld pay for such goods when the term of credit expired, will not sustain a finding that no fraud was committed. While a finding that the purchase was made with the intention not to pay for the goods might be necessary where there were no false representations, but merely a failure to disclose a condition of insolvency, such a finding is not required where false representations are made and relied upon and damage results therefrom.</p>

<p>Appeal by the defendant, The New York, Chicago and St. Louis Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the .office of the clerk of the county of Chautauqua ón the 5th day of May, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 5th day of May, 1903, denying the defendant’s motion for a ’ new trial made upon the minutes.</p>

<p>Rural cemetery association—section 45 of the Membership Corporations Lem authorizing it to acquire additional land by condemnation proceedings is constitutional— that the parcel sought to'be acquired-is separated from the original cemetery by a public highway is not an objection—compliance with the requirements as to maps, surveys and schedules of prices.</p> <p>Section 45 of the Membership Corporations Law (Laws of 1895, chap: 559, as amd. by Laws of 1896, chap. 335), providing, “If the certificate of incorporation or by-laws of a cemetery corporation do not 'exclude any person from the privilege on equal terms with other persons of purchasing a lot or of burial in its cemetery, such corporation may from time to time acquire by condemnation exclusively for the purposes of a cemetery, not more than two hundred acres of land in the aggregate forming one continuous tract, wholly or partly within the county in which its certificate of incorporation is recorded ” is constitutional, as the use for which the lands are taken is a public use rather than a private one.</p> <p>The fact that the dividing line between the lands composing the original cemetery and the lands intended to be taken by eminent domain is the center of a public highway separating the two parcels, does not establish that the two parcels do not form one continuous tract within the meaning of the statute. The requirements of sections 46 and 49 of the Membership Corporations Law as to maps, surveys and schedules of prices need not be complied with until the corporation acquires the title to the land which it desires to condemn.</p> <p>Stover, J., dissented.</p>

■Appeal by the plaintiff,- James P. Fortier, from a judgment of. the Supreme Court in favor of the defendants, entered in the office- ' of the clerk of the county of Erie on the 11th day of February, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of October, 1900, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Transfer tax—estates in expectancy transferred since 1899 aré presently taxable—the a/mendment of section 230 of the Tax Law made in 1901 applies only to estates in expectancy transferred prior to 1899—appeal from a surrogateds decree fixing a transfer tax—scope of the review by the Appellate Division.</p> <p>Section 230 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 284) provided: “Estates in expectancy which are contingent or defeasible shall he appraised at their full, undiminished Value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof.”</p> <p>The section was amended by chapter 76 of the Laws of 1899 by omitting the provision above quoted and inserting in place thereof the following: “Whenever a transfer of property is made, upon which there is, or in any contingency there may be, a tax imposed, such property shall be appraised at its clear market value immediately upon such transfer, or as soon thereafter as practicable. * * * When property is transferred in trust or otherwise, and the rights, interest or estates of the transferees are dependent upon contingencies or conditions whereby they may be wholly or in part created, defeated, extended or abridged, a tax shall be imposed upon said transfer at the highest rate which, On the happening of any of the said contingencies or conditions, would be possible under the provisions of this article, and such tax so imposed shall be due and payable forthwith out of the property transferred.” ■</p> <p>By chapters 173 and 493 of the Laws of 1901 the section was amended by inserting therein, after the provision last quoted, the following: “ Estates in expectancy which are contingent or defeasible and in which proceedings for the determination of the tax have not been taken or where the taxation thereof has been held in abeyance, shall be appraised at their full, undiminished value when the persons entitled thereto shall come into the beneficial enjoyment or possession thereof.”</p> <p>Held, that, by the amendment of 1901, the Legislature' did not intend to change the general policy of making estates in expectancy presently taxable;</p> <p>That the application of the clause inserted in the section by the amendment of 1901 was limited by the words, “and in which proceedings for the determination of the tax have not been taken or where the taxation thereof has been held in abeyance,” to cases in which transfers of estates in expectancy had occurred prior to 1899 and in which no proceedings had been taken to determine the tax.</p> <p>Under section 332 of the Tax Law, as amended by chapter 173 of the Laws of 1901, which provides that the notice of appeal to a surrogate from a determination fixing the amount of a transfer tax, shall .state the grounds upon which the appeal is taken, the Appellate Division is confined to a consideration of those grounds upon an appeal from the surrogate’s decree. .</p>

Appeal by the plaintiff, Patrick W. Cullman, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 24th day of September, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term, and also from an order entered in said clerk’s office on the 16th day of September, 1903,-denying the, plaintiff’s…

<p>Negligence—injury to a servant employed under a locomotive in consequence of the moving of the locomotive—failure to promulgate rules for'his protection—where one of two mies would, be sufficient, negligence cannot be predicated upon a failure to adopt both of them—expert evidence that certain rules were “necessary” is incompetent— it is a question for the jury.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the defendant railroad company was accustomed to run locomotives upon a track in the vicinity of a roundhouse for the purpose of having the ashes and cinders removed from their ashpans; that ¡the ordinary process was for a hostler to enter the locomotive and shake down the ashes while another man would crawl under the locomotive and hoe out the contents of the ashpan; that while the plaintiff was under a locomotive performing this work, and after the hostler, who accompanied him, had left the engine, it was sgt in motion by an engineer and the plaintiff was injured. The negligence alleged' on the part of the defendant- was its failure to promulgate rules for the plaintiff’s protection.</p> <p>Upon the trial an expert witness was allowed, over the objection and exception of the defendant, to state, in answer to a hypothetical question, that a rule would have been proper to protect the man engaged in hoeing out the ashpan; that such a rule was “necessary; ” that there should have been a rule that the hostler should not leave the locomotive until the man engaged in hoeing/ out the ashes had come from under the locomotive, and also a" rule requiring the-placing of a red light on each end of the locomotive.</p> <p>Held, as a matter of law, that the defendant was not required to promulgate and observe both of the rules suggested by the expert witness, as, if the hostler remained upon the locomotive while his fellow-servant was at work hoeing out the pan, it would not be necessary to take the further precaution of placing red lights at each end of the locomotive;</p> <p>That it was improper to allow the expert witness to testify that the rules suggested by him were “necessary,” as it was competent for the jury, when all. the facts and circumstances bearing upon the situation had been placed before. ' them, to determine that question for themselves.-</p> <p>McLennan, P. J., dissented.</p>

Appeal by the defendants, Patrick Hallinan and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 13th day of April, 1903, upon the verdict of a jury for §1,500, and also from an order entered in said clerk’s office on the 10th day of April, 1903, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff, Charles B. Wood, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 27th day of May, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Jefferson Trial Term, and also from an order-entered in said clerk’s office on the 2d day of June, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiffs, August Uihlein and another, from a judgment-of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 10th day of July, 1903, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiffs, Harvey J. Hurd and another, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 16th day of September, 1903, upon the report of a referee reversing a judgment of the Municipal Court of the city of Buffalo, in favor of the plaintiffs, and dismissing the plaintiffs’ complaint upon the merits.

Appeal by the plaintiff, Therese Luesenhop, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 2d day of July, 1902, upon the decision of the court, rendered after a trial at the Erie Special Term, dismissing the plaintiff’s complaint upon the merits. The defendant Barbara Einsfeld died during-the pendency of the action, but no substitution has been made in her place.

<p>Deed absolute in form executed as security for a debt — agreement by the grantee to reconvey the land within o.ne year on repayment of the debt — execution by the grantor to the grantee of a general release — the grantor cannot subsequently maintain an action'to redeem the premises — such a conveyance is not invariably a mortgage—■ the parties may agree that if the debt is not repaid within the specified time the grantee’s title shall become absolute.</p> <p>November 25, 1873, Theresa Luesenhop conveyed certain real estate to John P. Einsfeld. The conveyance, although absolute on its face, was given as security for an indebtedness of §1,000, and concurrently with its execution Einsfeld and his wife executed an agreement by which they agreed to reconvey the property one year from the date of the agreement or sooner, provided the said Luesenhop paid the indebtedness. The agreement further provided that Luesenhop should have the occupancy of the premises during the term, and that she should pay the taxes and insurance and make all necessary repairs to. the buildings on the premises.</p> <p>In November, 1874, Einsfeld without, so far as appeared, making any special agreement with Luesenhop, entered into possession of the premises. He continued in such possession, claiming to own the property, paid off the incumbrances which were liens against the property amounting to upwards of $3,000, paid all the expense of repairs and maintenance, and generally exercised all the rights and discharged all the obligations of an owner.</p> <p>In 1886 negotiations were had between Einsfeld and Luesenhop, which resulted in the payment to her by Einsfeld of the sum of §1,500, and the execution by her to Einsfeld of a release by which she discharged the said Einsfeld from all claims “in law or in equity,” and from all “manner of * * * claims * * * upon or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents.”</p> <p>At the time of the execution of the release, Einsfeld claimed to be the absolute owner of the property, and the only matters in dispute between the parties were the claims growing out of the conveyance of the property.</p> <p>Thereafter Einsfeld made valuable improvements upon the premises and paid the taxes and insurance. He continued in possession until his death in 1891. In 1893 Luesenhop brought an action against Einsfeld’s executor and devisees to compel an accounting with respect to the premises and a reconveyance of the premises upon payment of the sum found due.</p> <p>Held, that the plaintiff was not entitled to the relief sought; - That there was an entire lack of equity in the plaintiff’s case;</p> <p>That the release executed by the plaintiff to Einsfeld operated to extinguish whatever rights the plaintiff had in the premises;</p> <p>That the fact that Einsfeld and his successors had upon the faith of the release-incurred expense in maintaining and improving the premises, and could not be placed in the situation in which they were before the release was executed, was fatal to the plaintiff’s right to demand a reconveyance.</p> <p>Semble, that every agreement to reconvey upon-the payment Of a certain sum within a specified .time does not constitute a mortgage, and that the parties may execute such conveyance with the intention that the title shall become absolute, and the right of redemption determine, upon default after the expiration of the time for payment, and that if such intention actually appears full effect will be given to it; that in the absence of such intention appearing, equity would construe the transaction as a mortgage with the right to redeem.</p> <p>Hiscock, J., dissented.</p>

<p>Negligence — construction by an abutting owner of a platform encroaching upon a city sidewalk—pedestrian injured by the collapse of the sidewalk and platform— the city is liable f defects in the sidewalk but not for defects in the platform — admissibility of an affidavit made by a witness as to what another witness had Said to him.</p> <p>In an action brought against a city to recover damages for personal injuries it appeared that the city maintained a sidewalk leading to' a bridge; that an owner of property abutting on the approach to the bridge had constructed in front of his premises a wooden platform, -which as claimed by the plaintiff rested upon the sidewalk; that while the plaintiff was standing with one foot on the steps of the platform and the other foot upon the sidewalk, the platform and walk collapsed precipitating the plaintiff into a hole fifteen or twenty feet deep and causing him to sustain injuries.</p> <p>Held, that it was improper for the court to charge that the plaintiff could recover if the jury found that the platform was in any way connected with the sidewalk, and the injury resulted from a defect either in the platform or the sidewalk;</p> <p>That the city was not liable for defects in the platform, but only for defects in the sidewalk;</p> <p>That it was liable for any defect in the sidewalk; whether such defect was inherent in the sidewalk itself or was due to the conjunction of the platform with the sidewalk.</p> <p>That it was improper to permit the plaintiff to introduce in evidence, for the purpose of contradicting the testimony given by a witness for the defendant, an affidavit made by such witness which, in addition to the statements about which such witness had been examined, contained an account of a conversation which the affiant had had with another witness in respect to which conversation the other witness was not examined.</p> <p>McLennan, P, J., and Spring, J., dissented.</p>

Appeal by the plaintiff, John N. Drake, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 2d day of April, 1903, upon the report of a referee dismissing the plaintiff’s complaint.

<p>Appeal by the defendant, The Village of Middleport, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 22d day of J uly, 1903, upon the verdict of a jury for $250, and also from an order entered in said clerk’s office on the 27th day of August, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, John Gebhardt, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 13th day of July, 1903, upon the decision of the court, rendered after a trial at the Onondaga Special Term, overruling the said defendant’s demurrer to the amended complaint.

<p>Appeal by the defendants, Jacob Pattat and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of Oswego on the 27th day Of May, 1903, upon the report of a referee, and also (as stated in the notice of appeal) from an order entered in said clerk’s office on. the 27th day of May, 1903, confirming the report of the referee.</p>

Appeal by the plaintiff, Mary C. Cahill, suing as a poor person, from, a judgment of the Supreme Court in favor of the defendants, entered in the, office of the clerk of the county of Erie on the 13th day of July, 1903, upon the decision of the court, rendered after a trial before the court without a jury at the Erie Trial Term, dismissing the plaintiff’s complaint.

Appeal by the petitioner, William B. Dimick, named as executor,' etc., of Helen A. Rayner, deceased, from a decree of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 8th day of June, 1903, denying the petitioner’s application for the probate of an instrument propounded as the last will and testament of Helen A. Rayner, deceased.

Appeal by the defendant, the International Railway Company, from an order of the County Court of Niagara county, entered in the office of the clerk of the county of Niagara on the 23d day of December, 1903, directing the assessment of damages in open court by a jury to be drawn from the regular panel of jurors.

<p>Ejectment — the plaintiff in ejectment may show that a deed under which the defendant claims title is fraudulent and void although he did not plead its invalidity.</p> <p>Where the defendant in an action of ejectment produces a deed concededly executed by the person through whom the plaintiff claims title, which deed, upon its face, is properly executed and conveys the prémises in dispute, it is competent for the plaintiff to show that the deed is void because it was procured through fraud or undue influence, or because the grantor was mentally incapable at the time" the instrument was executed, notwithstanding that he did not allege the invalidity of the conveyance in his complaint or in a reply to the defendant’s answer.</p>

<p>Conspiracy — refusal of railroad companies to handle grain from an independent elevator on the same terms as grain from elevators controlled by an elevator association — it is unlawful — the railroad company and the elevator association are liable to the owners of the independent elevator for the damages sustained by them.</p> <p>All of the grain elevators located at the port of Buffalo having railroad connections are owned, some by railroad companies whose roads enter Buffalo and the , -others by individuals or corporations. The elevators owned or controlled by the railroad companies are located adjacent to their respective tracks, while I most, if not all, of the other elevators are located upon, or connected with, the ¡ Buffalo Creek railroad. The Buffalo Creek railroad is simply a branch railroad designed to- afford connection with the other railroads and it makes a uniform charge for each car delivered to such other railroads. All of the elevators are • absolutely dependent upon such other railroad companies for the transshipment of their grain by rail.</p> <p>In 1900 the owners of all the rail elevators at Buffalo,- with the exception of the owner of the Kellogg elevator, formed a joint stock association known as the. Western Elevating Association. The agreement for the organization of the association provided that the parties. thereto should devote, their respective elevators to the purposes of such association'; that the association should elevate all grain consigned to any of the elevators in the combination for one-half ' a cent per bushel, which was less than the price authorized by law; that the net profits of the elevating should be distributed among the parties to the agreement in accordance with a schedule of percentages agreed upon, and that “ In case of the failure to come into the Association of any elevator or elevators named in said schedule, then and in that case the percentage of net earnings allotted to such elevator or elevators shall be divided pro rata according to per cent shown, between the other elevators in the Association.”</p> <p>Simultaneously with its organization, the association entered into a contract with each of the railroad companies, which provided that the railroad company would pay to the association one-half a cent per bushel for all grain transported by it, independent of whether such grain was handled by the association elevators or by the Kellogg elevator. The railroad companies, in order to reimburse themselves for the one-half cent per bushel which they agreed to pay to the association elevators on grain handled by the Kellogg elevator, adopted the following plan: They added elevator charges of one-half a cent a bushel to the freight charges on all grain carried by them, and then paid over the elevator charge to the elevator association, and in case the owners of the Kellogg elevator insisted on receiving one-half a cent a bushel for elevating grain, then such grain was made to pay elevator charges of one cent a bushel. The result of these conditions was to deter shippers of grain from using the Kellogg elevator, and it appeared that this was the purpose intended by the elevator association and the railroad companies.</p> <p>Held, that the act of the railroad companies in refusing to handle grain from the Kellogg elevator upon the same terms that they handled grain from the other elevators, although the Kellogg elevator was as conveniently situated as the other elevators, was unlawful, and that, as such refusal was the natural result of the contracts entered into between the elevator association and the railroad companies and the result contemplated by the parties when they entered into such contracts, the elevator association and the railroad companies were equally liable for the damages sustained by the owners of the Kellogg elevator in consequence of the unlawful discrimination;</p> <p>That it was not important that the owners of the Kellogg elevator might have a right of action against the elevator association to recover the moneys which were paid to it by the railroad companies for the elevating of grain at the Kellogg elevator.</p>

Appeal by the defendant, William Cornwell, from a judgment of the County Court of Jefferson county in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 17th day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of December, 1903,' denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, James W. Hinkley, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 15th day of October, 1903, denying said defendant’s motion to compel the plaintiff to serve an amended complaint herein separately setting forth and numbering the statements of the facts which constitute the alleged causes of action against the defendants.

<p>Evidence— a witness, cross-examined as to whether he gave certain testimony on. a coroner's inquest, should he permitted to state on his redirect examination whether he gave certain other testimony thereon.</p> <p>Where, upon the trial of an action to recover damages resulting from the death, of the plaintiff’s intestate, caused by the alleged negligence of the defendant, one of the defendant’s witnesses, who, previous to the trial, had testified as to the accident on a coroner’s inquest, is cross-examined as to whether, at the coroner’s inquest, certain questions were not put to him and whether he did not make certain answers thereto, such witness should, upon his redirect examination, be permitted to state whether certain other questions relating to the subject upon which he had been cross-examined had not been put to him at the: coroner’s inquest, and whether he did not make certain answers thereto.</p>

Appeal by the defendant, the L. D. Garrett Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 22d day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Charles Weber, from an order of the Supreme Court, made at the New York Special Term and entered ■ in the office of the clerk of the county of New York on the 12th day of January, 1904, denying the defendant’s motion to vacate an order theretofore granted herein for the examination of the defendant in proceedings supplementary to execution.

<p>Negligence—passenger standing up in a street car, grasping a strap, thrown down- and injured, by a violent jerk of the car — when a charge that the plaintiff was-entitled to recover, if the jury found certain facts, is improper.</p> <p>Upon the trial of an action to recover damages for personal injuries, sustained hy the plaintiff while a passenger upon one of the defendant’s street cars, the.plaintiff gave testimony tending to show that while standing up in the car, holding on to a strap provided for that purpose, the car, after coming to a. stop, started with a violent jerk which caused him to .lose his hold upon the-strap and to he thrown down and injured.</p> <p>The court charged, at the request of the plaintiff, and over the defendant’s-, exception, “If the jury find that the particular car upon which the plaintiff was a passenger was caused to start forward without notice or warning to the. plaintiff from a position of rest with a sudden and unusual lurch forward, so-violent as to cause the plaintiff and other passengers in the car to he thrown in the manner testified to by plaintiff and his witness Minzesheimer, and if the jury further find that the car could have been started by the exercise of a reasonable degree of skill and care on the part of the motorman controlling the car-without such sudden, violent and unusual lurch, provided they believe there ■ was such sudden, violent and unusual lurch at all, and if they should further find that the seats in the car were all occupied, and that plaintiff was standing inside the car, holding on to a strap provided for such purpose, at the time of such lurch, and Was solely by reason thereof thrown down and received the' injuries that were testified to in this case, then the plaintiff would be entitled to a verdict;”</p> <p>Held, that the charge was erroneous, in that it permitted the jury to find the defendant liable, without finding that it had been guilty of negligence, or that such negligence was the proximate cause of the accident, of that the plaintiff was free from contributory negligence;</p> <p>-That the fact that the car had - started with a jerk and that it could have been started without a jerk did not establish, as a matter of law, that the defendant had been guilty of negligence; that this question was one of fact for the jury to determine.</p>

<p>Appeal, by the plaintiff, Edward L. Lewis and by the defendant Charles A. K. MacPherson, from a judgment of the Supreme Court in favor of the defendant Guardian Fire and Life Assurance Company (Limited) of London, England, entered in the office of the clerk of the county of New York on the 14th day of January, 1904,, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the defendant, Thomas P. Wickes, as receiver of the late firm of Coffin & Stanton, from a judgment of the Supreme Court in favor of the plaintiff, ’entered in the office of the clerk of the county of New York on the 27th day of July, 1903, upon the report of a referee dismissing the counterclaim of the defendant receiver.</p>

<p>Contract providing for the payment of a debt due to a third person — when enforcible by the latter — when a provision for the payment of ten per cent interest upon the debt does not render the contract usurious — a party repudiating all liability upon. a contract cannot take advantage of conditions pi'ecedent contained therein — offer of firm, books in evidence.</p> <p>Thomas J. Flagg, who was a copartner of Henry G. Fisk, died intestate, leaving* him surviving his widow, Cornelia C. Flagg, and a son and daughter. At tho time of his death there was due from the firm to Emily Kennedy, the mother of Cornelia C. Flagg, the sum of $24,651.82. For the purpose of avoiding a liquidation of the firm affairs, the said Cornelia C. Flagg, individually and for her mother, and the son and daughter of the said Thomas J. Flagg, entered into a contract with Henry G. Fisk, the surviving partner, by which they sold and assigned to him the firm business, with the right to continue the use of the firm name, in consideration of Fisk’s agreement to pay to the said Cornelia C. Flagg, individually, the sum of §3,000, and to pay to the said Emily Kennedy the amount which appeared to be due to her upon the firm books, together with interest thereon at the rate of ten per cent for a certain period and at the rate of six per cent thereafter. The contract provided that Emily Kennedy’s claim should not become due and payable until all the other firm creditors had been paid.</p> <p>In an action brought by Cornelia C. Flagg, as administratrix of the said Emily Kennedy against Fisk’s personal representatives to recover the amount of the Kennedy claim,</p> <p>Held, that the provision in the contract for the payment of ten per cent interest upon the amount of the Kennedy claim did not render it usurious, as the consideration for Fisk's promise to pay the Kennedy claim was the sale of the copartnership business and the right to continue such business in the firm name ' without liquidating the partnership affairs, and not the loan or forbearance' of -the use of money, to which, alone, the statute- relating to usury applies;</p> <p>That the interest which the plaintiff, as a party interested in the estate of Thomas ,T, Flagg and as the sole heir at law and next of kin of Mrs. Kennedy, had in securing the payment of the debt due to the latter, was sufficient to entitle Mrs, Kennedy, or her personal representatives, to enforce the promise to pay such debt;</p> <p>That, as the. defendants had repudiated all liability upon the contract, the fact that the plaintiff failed to show that there were no outstanding firm debts remaining unpaid at the time of thd commencement of the action did not constitute a defense;</p> <p>That, as the existence of the debt and the amount thereof had been established by the firm ledger, independent of its recognition in the contract, the court properly declined to permit the defendants to offer in evidence all of the firm books.</p>

<p>Appeal by the defendant, William C. Hunter, from a judgment ■of the Supreme Court in favor of the plaintiff, entered in the office ■of the clerk of the county of New York on the 23d day of December, 1903, upon the verdict of a jury, and also from an .order entered in said clerk’s office on the 6th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Principal and agent —power of the , agent when acting in his own interest to bind his principal—action upon the bond of .a bank cashier who fraudulently certified a check which he used in payment of an individual debt—when a demurrer to the complaint is not frivolous — special damages.</p> <p>The general power or authority of an agent to act for his principal does not embrace a case where it appears from the transaction that the agent is acting in his own interest. Under such circumstances, the agent’s authority to bind the principal by his act will not be upheld, unless it appears that he was clothed with such authority by language so plain that no other rational interpretation can be placed upon it.</p> <p>The complaint in an action brought by the receiver of the Elmira National Bank to recover upon a bond given by one Bush as security for the faithful performance of his duties as cashier of the Elmira National Bank alleged that Bush was indebted in the sum of §15,012.50 to the Chase National Bank of the city of New York, with which bank the Elmira National Bank had a deposit account; that Bush drew a check on the Elmira National Bank payable to the order of the Chase National Bank for the amount of his indebtedness to the latter bank and fraudulently and illegally certified such check in his capacity as cashier; that the Chase National Bank charged the account of the Elmira National Bank with the amount of the check, but subsequently returned §7,012.50 thereof.' Judgment was demanded for the remaining §8,000 with interest thereon.</p> <p>Upon an appeal from an order adjudging a demurrer interposed by the defendants to be frivolous, it was</p> <p>Held, that at the time the Chase National Bank charged the account of the Elmira National Bank with the amount of the illegally certified check, it had notice of facts which placed it upon inquiry with respect to Bush’s authority to certify the check and that, when it assumed to devote the funds of the Elmira National Bank to the payment of the check, it did so at its peril;</p> <p>That the transaction did not divest the Elmira National Bank of its title to the money on deposit with the Chase National Bank or impair its right to draw upon such money;</p> <p>That the plaintiff could not recover the damages, if any, which the Elmira National Bank had sustained on account of the refusal of the Chase National Bank to pay over, upon demand, the money withheld by the latter bank, as such damages were special in their nature and had not been pleaded;</p> <p>That, as it did not appear that the Elmira National Bank had suffered any loss through the action of Bush or of the Chase National Bank, it was questionable whether the complaint was not demurrable;</p> <p>That a pleading will not be adjudged frivolous unless its insufficiency is apparent from a mere inspection thereof. If argument is required to establish its insufficiency, it is not frivolous;</p> <p>That it Was, therefore, improper to adjudge the demurrer frivolous.</p>

<p>Appeal by the petitioner, Chester Irving Fisher, as executor, etc., of Herman C. Fisher, deceased, from so much of a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 20th day of August, 1903, settling the accounts of the petitioner, as fixes the amount of his commissions as executor, etc., of Herman C. Fisher, deceased.</p>

<p>Appeal by the defendants, Patrick Doherty and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of . New York on the 8th d'ay of' June, 1903, upon the report of a referee.</p>

Appeal by the defendant, The New York Catholic Protectory, - from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of April, 1903, sustaining a writ of habeas corpus theretofore allowed herein upon the petition of one Lizzie Sampson, and awarding the custody of the relator to said petitioner.

Appeal by the plaintiff, Jacob L. Hill, as trustee in bankruptcy of Sarah Warsawski, from a judgment of the Supreme Court- in favor of the defendants, entered in the office of the clerk of the county of New York on the 18th day of November, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.

Appeal by the plaintiff, Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 13th day of May, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of April, 1903, denying the plaintiff’s, motion for a new trial made upon the minutes.

Appeal by the defendant, Lora C. Schroeder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 20th day of June, 1903, upon the verdict of a jury, rendered by direction of the court, and also from an order bearing date the 17th day of June, 1903, and- entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Victor Henry Rothschild, from an order of the Supreme Court, made at the New York Spécial Term and entered in the office of the clerk of the county of Hew York on the 16th day of December, 1903, requiring the defendant to serve a bill of particulars.

Appeal by the defendants, James L. Wells, president, and others, as commissioners of taxes and assessments, constituting the board of taxes and assessments of the city of Hew York, from an order of the Supreme Coúrt, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 26th day of January, 1904, reducing an assessment upon the relator’s personal property and denying the defendants’ motion that testimony be taken.

<p>Agreement try a manufacturer of a patented article to pay royalties to the inventor — construction thereof.</p> <p>The inventor of a bicycle lamp made an agreement with a manufacturing corporation, by which such corporation agreed to manufacture and sell the lamps and pay him a royalty of twelve and a half cents upo.n each lamp so manufactured and sold. The agreement further provided that the corporation “hereby further promises and agrees that the royalty on lamps shall not in any year, net the party of the first part (the inventor) less than Five hundred dollars ($500), and in the event of said royalty netting the party of the first part less than Five hundred dollars ($500), or in the event of the discontinuance by the party of the second part oiy-the manufacture or sale of lamps embodying the improvements claimed in said patents, and for which the said party of the second part is- liable . for royalty, then the said party of the second part hereby promises and agrees to forthwith assign the said patents above referred to and all rights thereunder, except as hereinbefore specified, to said Corbet, party of the first part, without other consideration than the release from paying further royalty or royalties.</p> <p>“ It is mutually understood and agreed that the failure of the party of the second part to pay the minimum amount of royalty named, or the discontinuance of the manufacture or sale referred to, shall not relieve the party of the second-part from the payment of such royalty or royalties as may be due the party of the first part at the time of such termination of the contract and assignment of the said patents to the party of the first part.”</p> <p>Eeld, that it was optional with the corporation to discontinue the manufacture and sale of the lamps;</p> <p>That if it did discontinue such manufacture and sale, or if the number of lamps manufactured and sold by the corporation in any year was not sufficient to produce a royalty of §500, the inventor was entitled to a reassignment of the patents;</p> <p>That the corporation was not obliged to pay the inventor a minimum of §500 per annum as royalty until such time as it reassigned the patents to him; that it was only obliged to pay him a royalty of twelve and a half cents upon each lamp manufactured and sold by it.</p> <p>Semble, that the corporation could not abandon the manufacture of the lamps, and, by tendering the inventor §500, hold the patents and thus prevent the inventor from placing his invention upon the market.</p> <p>O’Brien, J., dissented.</p>

Appeal, by permission, by the plaintiff, Charles Pache, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of said court on the 23d day of November, 1903, which order affirmed a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the defendant, ' entered on the 9th day of May, 1903, sustaining the defendant’s demurrer to the plaintiff’s complaint and dismissing the said complaint.

Appeal by the defendants, Marx Ottinger and Moses Ottinger, composing the firm of Ottinger Brothers, from a judgment of the. Supreme Court in favor of the plaintiffs, éntered in the office of the clerk of the county of New York on the 8th day of May, 1903,' upon the verdict of a jury, and also from an order entered in said, clerk’s office on the 12th day of May, 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from an order of the Supreme Court, made at the Hew York Trial Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1903, setting aside the verdict of a jury theretofore rendered in the above-entitled action in favor of the defendant and granting to the plaintiff a néw trial.</p>

<p>Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 24th day of June, 1903, upon the verdict of a jury for $3,800, and also from an order entered in said clerk’s office on the 26th day of May, 1903, denying the defendant’s motion for a new trial made; upon the minutes.</p>

Appeal by the plaintiff, the East River Rational Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rew York on the 13th day of July, 1903, upon the decision of the court, rendered after a trial 'at the Rew York Trial Term, a jury having been waived, dismissing the plaintiff’s complaint.

<p>Appeal by the defendants, the United States Trust Company of New York and another, individually and as executors of and trustees under the last will and testament of Mary A. Flanagan, deceased, from a judgment-of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of January, 1904, upon the decision of the court rendered after a trial at the New York Special Term.</p>

<p>Reorganization agreement — liability of tlie committee created thereby for a failure io fit the plan of reorganization prior to a mortgage foreclosure sale at which it purchases the property where no damage is shown by a bondholder who has ■ deposited his bonds thereunder — his failure to withdraw his bonds from deposit after notice of the filing of the plan of reorganization—proof of facts, arising after the bringing of the action, alleged in the pleading.</p> <p>A railway corporation, having made default in the payment of the interest due on bonds secured by a mortgage upon its property, the trustee named in the mortgage instituted a suit for the foreclosure thereof, and a receiver pendente Ute of the mortgaged property was appointed. April 9, 1895, during the pendency of the foreclosure action, a reorganization agreement was executed by the terms of which a committee was appointed to represent the bondholders.'</p> <p>The agreement provided that the bonds should be deposited with the Manhattan Trust Company, “subject to the order and full control of the committee, to be used for any purposes under this agreement. The deposit of such bonds shall transfer to the committee the full legal and equitable title thereto for all. the purposes of this agreement; ” that “ the committee is hereby expressly authorized and empowered, and it shall be its special duty to prepare and adopt a plan.for the reorganization of the affairs of the railway company, with or without foreclosure. When the committee shall have adopted such plan, a copy thereof shall be lodged with the Manhattan Trust Company. Notice shall * thereupon be given to the holders of the trust certificates issued hereunder, and such plan shall become binding upon all of the said holders who do not withdraw herefrom (in the manner hereinafter provided), unless the holders of a majority in interest of the said certificates shall, within twenty days after-such notice, file with the Manhattan Trust Company their written dissent from the plan;” that “any holder of a trust certificate issued hereunder may, at any time within thirty days after the mailing to him of notice of the filing of a plan of reorganization, as hereinbefore provided, withdraw from this agreement and recover back the bond or bonds deposited by him upon payment of his pro rata share of the expenses theretofore incurred by the committee;” that the committee, for the purpose of effecting a reorganization of the affairs of the railroad company, might take such steps as it might deem advisable for the formation of a new corporation and for transferring to the new corporation all the assets Of the railway company; that it might “ use the deposited bonds for the purpose of paying for any assets or franchises purchased; ” that “ the committee may supply any defects or omissions which it may deem necessary to be supplied to enable it to carry out the general purpose of this agreement. The committee is authorized to construe this agreement and its construction shall be final;” that no member of the committee should be liable for “anything but his own willful misconduct.”</p> <p>The agreement contained no express provision as to the time when the plan of reorganization should be filed by the committee.</p> <p>July 16, 1895, the chairman of the reorganization committee, in reply to the request of The Industrial and General Trust, a bondholder which had deposited its bonds under the reorganization agreement, informed such bondholder that the property would be sold September 16, 1895, and that no plan of reorganization had then been adopted and that he was unable to predict the probable ■ date upon which a plan would be issued.</p> <p>September 16, 1895, the reorganization committee bid in the mortgaged prop- • erty. Thereafter the reorganization committee caused the incorporation of a new railroad company, and procured the mortgaged property to .-be conveyed to it, part of the purchase price- being paid in cash and part by the use of bonds deposited under the reorganization agreement. All of the stock and securities of the new railroad company were issued to the reorganization committee.</p> <p>In July, 1898, a plan of reorganization was filed and notice thereof was given to all the bondholders as provided in the reorganization agreement. The Industrial and General Trust, the bondholder before referred to, did not, upon receiving notice of the filing of the plan of reorganization, withdraw the bonds deposited by it, as provided in the reorganization agreement.</p> <p>In an action brought by The Industrial and General Trust against the reorganization committee to recover damages for an alleged breach of the reorganization agreement, based upon the failure of the committee to' file the plan of reorganization prior to the sale of the mortgaged property in the foreclosure action, it was Held, that the complaint was properly dismissed;</p> <p>That the reorganization agreement contained no provision, either express or implied, that the plan of reorganization ■ should be filed prior to the sale in foreclosure;</p> <p>That, assuming that the failure of the committee to file the plan of reorganization prior to the sale did constitute a breach of the reorganization agreement, the plaintiff could not recover damages in this action, as the committee having acquired all of the mortgaged property, it did not appear that the plaintiff’s proportionate share of the securities of the new company was not as valuable as the bonds which it had deposited with the reorganization committee, and that, consequently, the plaintiff had not shown that it had sustained^ny damages from the alleged breach;</p> <p>That the complaint was also properly dismissed, because the plaintiff, by failing, upon receiving notice of the filing of the plan of reorganization, to withdraw its bonds in the manner provided in the reorganization agreement, had assented to such plan.</p> <p>The rule that, in an action at law, the rights of the parties must be determined as of the time when the action was commenced, is subject to exceptions, one of which is that where a fact has arisen subsequent to the joinder of issue, which either increases, diminishes or extinguishes the right, of recovery, such fact may be proved if the same is set out by appropriate allegations in a supplemental complaint or answer.</p>

<p> Order of arrest—when the moving papers fail to show personal knowledge by the affiant of the fact that alleged false representations were made by the defendant to á commercial agency. </p> <p>In an action to recover damages for alleged false representations, by which the plaintiffs were induced to sell goods to the defendants, an application for an order of arrest was made upon the complaint and an affidavit made by one of the plaintiffs, which alleged that the defendants, for the purpose of inducing the plaintiffs and other merchants throughout the city of Hew York to sell and deliver to them goods, wares and merchandise upon credit, made a false statement to the commercial agency of E. G. Dun & Co.</p> <p>The affidavit averred that the false statement read as follows:</p> <p>“April 10, 1903, at this address, David Levy (one of the defendants) gave our reporter above personal details and dictated the following statement: Financial condition on December 30, 1902, as per inventory (here followed a statement of financial condition). (Signed) D. LEVY & CO.</p> <p>“April 15,1903.”</p> <p>The affidavit then continued: “That deponent’s firm of Fred Butterfield & Co. are subscribers to said mercantile agency and obtained said statement from said agency prior to the sale and delivery to the defendants of the goods hereinafter mentioned.”</p> <p>The plaintiffs did not present the affidavit of any member of the firm of R. G. Dun & Co. or of the reporter to whom the statement was alleged to have been made.</p> <p>Held, that the moving papers were insufficient to justify the granting of the order of arrest;</p> <p>That there was nothing to show that the affiant had any personal knowledge that the defendants made or signed the statement attributed to them, or that he ever saw the original statement made to the reporter;</p> <p>That, on the contrary, it appeared that his knowledge was derived solely from the statement furnished by R. G. Dun & Co., and that the only fair inference to be drawn from all the facts was that the latter statement was not the original statement but a copy thereof;</p> <p>That it could not be inferred that the statement referred to in the affidavit was in writing and was seen by the affiant, and that the latter knew the signature of the defendants to be correct;</p> <p>That even if such an inference, could be drawn from the papers, it would not be sufficient to justify the granting of the order, as such an order must be based upon facts set out in the affidavit, and from which, if uncontradicted, the court can see that the party proceeded against is guilty of the charge made against him.</p>

<p>Assignment under seal of a life insurance policy — presumption of a valid consideration in addition to “ natural love and affection ” recited as the consideration therein—administrator of the assured not chargeable with costs—allowance of a premium paid by him.</p> <p>In an action brought by Frieda Von Sohuckmann against the administrator of Herman O. Heinrich to determine which of the parties was entitled to the proceeds of a policy of insurance upon the life of the said Herman ,0. Heinrich, it appeared that the policy was issued April 7, 1900, and was made payable to Heinrich’s executors or administrators; that on August 14, 1900, Heinrich executed and delivered to the plaintiff hn instrument sealed and acknowledged by him assigning the proceeds of said policy to her; that the assignment contained the following recital: “ in consideration of natural love and affection, I hereby assign and transfer unto Frieda Von Sohuckmann * * * my intended wife.”</p> <p>Prior to the issuing of the policy Heinrich had been paying his addresses to the plaintiff and she. had promised to marry him if she could bring herself to think that she could bestow upon Heinrich the love and affection she thought should accompany a promise to marry.</p> <p>After the assignment was made she notified Heinrich that she had decided not to marry him. Heinrich accepted the determination as final, but evidently-continued to regard her with affection. He made no demand upon her for the return of the assignment of the policy of insurance, and it did not appear that he ever expected or desired a return of the same.</p> <p>Held, that as the assignment of the policy of insurance was under seal, and was acknowledged, a presumption arose that it was based upon a valid consideration;</p> <p>That the burden was upon the defendant to overthrow this presumption by proof, and that as he did not produce such proof or show that the plaintiff did not give an adequate consideration for the assignment quite independent of love and affection, or of mutual respect, the latter was entitled to receive the proceeds of the policy;</p> <p>That as it did not appear that the defendant was guilty of any fault in laying claim to the proceeds of the policy of insurance, the court should not have awarded costs against him personally;</p> <p>That the administrator should also be allowed a premium which fell due before, and was paid by him after, the death of the assured.</p>

Appeal by the defendants, Jacob Van Vechten Olcott and another, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of blew York on the 18th day of December, 1903, upon the report of. a referee theretofore appointed pursuant to an interlocutory judgment in favor of the plaintiffs entered in said clerk’s office, on the 5th day of May, 1903, upon the decision of the court, rendered after a trial . at the Hew…

Appeal by The People of the State of New York from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of November, 1903, sustaining a writ of habeas corpus theretofore issued on behalf of the relator and discharging the said relator from custody.

Appeal by the defendant, Edward J. McKeever, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York On the 31st day of December, 1903, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.

Appeal by the- plaintiff, Max Borsuk, from an order of the Supreme Court, made at the. New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of December, 1903, denying the plaintiff’s motion to compel the defendant to make' his answer more definite and certain and to strike out certain portions thereof.

Appeal by the plaintiff, the International Money Box Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day ■ of November, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, Sara G. Bronson and others, as executors, etc., of Frederic Bronson, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in' the office of the clerk of the county of New York on the 9th day of June, 1903, upon the decision of the court rendered after a trial at the New York Special-Term.

Appeal by the defendant, Tobias Lesser, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 12th day of November,’ 1903, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the plaintiff’s demurrer to the first and second separate defenses set up in the defendant’s answer.

<p>Stay, because of the non-payment of costs — a copy of the order imposing the costs must be first served.</p> <p>The stay of proceedings prescribed by section 779 of the Code of Civil Procedure, in the event of a failure to pay the costs directed to be paid by an order, does not operate until after a copy of the order has been served upon the party required to pay the costs, whether or not the time for the payment of such costs is specified in the order.</p>

Appeal by the defendants, Charles M. Raymond and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of July, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, directing an accounting by the appellants before a referee and granting certain-other relief.

Appeal by the defendant, Jacob W. Hammer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of November, 1903, denying the said defendant’s motion to confirm the report of a referee appointed to assess the damages sustained by the appellant by reason of the issuance of an injunction herein against the said appellant.

Appeal by the defendant, Frederick C. Beach, from an order óf the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 22d. day of January, 1904, denying the defendant’s motion for a dismissal of the complaint upon the ground that the court should decline to entertain jurisdiction of the action, both parties thereto being non-residents.

<p>Contract to furnish fire insurance at certain rates—what constitutes a rescission thereof by mutual consent— consideration therefor.</p> <p>December 34, 1896, a firm oí fire insurance brokers made an agreement in writing with a firm of merchants, by which the insurance brokers agreed to procure for the merchants all the fire insurance which the latter should require for a period of three years from February 1, 1897, at the rate of eighty-three cents, per hundred dollars in valuation.</p> <p>At the time the contract was made there was a tariff association composed of seventy per cent or more of the fire insurance companies doing business in the State of New York, which fixed uniform rates of insurance and from time to time changed the same.</p> <p>The rate specified in the contract was seven cents per hundred less than the rate fixed by the tariff association. The contract provided that if, during the term thereof, the rate should be reduced by the tariff association, the merchants should have the benefit of the reduction; that if the rate should be increased, the brokers should furnish the insurance at the contract rate.</p> <p>April 38, 1898, the tariff association was dissolved with the result that there was a decided lowering in the rates of insurance.</p> <p>After the dissolution of the tariff association, the merchants requested the insurance brokers to lower the rate of insurance specified in the contract, stating that one Tynberg had offered them insurance at the rate of twenty cents per hundred. The insurance brokers then informed the merchants that if they could get Tynberg to obtain the execution of an agreement and guaranty prepared by the insurance brokers, the merchants might give Ty.nberg their insurance.</p> <p>The merchants then, in the presence of the brokers, wrote a letter to Tynberg to the effect that if he signed the contract and obtained the guaranty inclosed therein, they would place their insurance with him', but, at the suggestion of the insurance brokers, the part relating to placing insurance with Tynberg was altered to read, “We will then take the matter seriously into consideration.”</p> <p>Tynberg having executed the contract, -and obtained the guaranty as suggested, the merchants notified the insurance brokers that they would give their insurance to Tynberg. The brokers then, for the first time, claimed that the contract with Tynberg should be for their account and claimed that the proposition made to Tynberg was simply for the purpose of convincing the merchants that Tynberg’s offer was not made in good faith.</p> <p>Thereafter, during the term of the contract, the merchants placed their insurance with Tynberg. The insurance brokers then brought an action against ther merchants to recover damages for the alleged breach of the contract.</p> <p>Held, that the dissolution of the tariff association did not dissolve the contract; That, notwithstanding that the merchants could procure insurance at a lower Tate than that specified in the contract, the insurance brokers could, if they ihad so elected, have required the merchants to take insurance and pay therefor at the rate specified in the contract;</p> <p>'That the evidence produced by the merehants, if true, established a rescission of the contract by mutual consent;</p> <p>That the consideration for such rescission was the release of each party from liability under the contract and the fact that the merchants were induced to negotiate with Tynberg.</p> <p>Ingraham, J., dissented.</p>

Appeal by the plaintiff, Louis H. Evans, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 24th day of September, 1903, upon the report of a referee.

<p>. Appeal by the plaintiff, Thomas W. Eldredge,; from a judgment of the Supreme Court in favor of the defendant, entered in the> office "of the clerk of the county of Westchester on the 17th day of January, 1903, upon the verdict of a jury rendered by direction-of the court after a trial at the Westchester Trial Term.</p>

Appeal by the defendant, Frederick Van Dusen, from a judgment of the City Court of the city of Mount Vernon in favor of the plaintiff, entered in the office of the clerk of said court on the 17 th day of June,',1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 15th day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p> Negligence-^liability of the owners of a depa/rimeñt store to a person struck-by a. swinging door. </p> <p>In an action to recover damages for personal injuries it appeared that the defendants were proprietors of a department store, the entrance to which w^s fitted with swinging spring doors; that while the plaintiff was coming out of the store, another person, who had preceded her through one of the doors, let the door swing back and strike the plaintiff.</p> <p>The proof showed that similar doors, with springs' of the same or greater . strength, were in use at numerous like, establishments.</p> <p>Eeld, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, as the plaintiff’s injuries could not be attributed to any fault on the part of the defendants, but rather to the hasty carelessness of a third person, over whose movements and conduct they had no control. .</p> <p>Woodward and Hooker, JJ., dissented.</p>

Appeal by the defendant, John N. Williamson, from a judgment of the Supreme. Court in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 6th day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The Uñited Brotherhood of Carpenters and Joiners of America, from a judgment of the County Court of "Westchester county, in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 30th day of-March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the defendant, Fanny H. Schiff, from an order of the City Court of the city of Yonkers, entered in the office of the clerk of said court on the 30th day of December, 1903, denying the defendant’s motion to vacate an order theretofore entered herein for the examination of the defendant before trial.

Appeal by the defendant, William L. Pattison, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 4th day of April, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the fifth and sixth causes of action set forth in the complaint.

Appeal by the petitioner, Euphemia McHugh, as the executrix and residuary legatee named in the last will and testament pf Annie Shannon, deceased, from a decree of the Surrogate’s Court of the co.unty of Richmond, entered in said Surrogate’s Court pn the 20th day of April, 1903, refusing to admit to- probate instruments propounded as the last-will and testament and the codicil thereto of Annie Shannon, deceased.

Appeal by the defendant, Maurice Untermyer, from án orden of' the Supreme Court, made at the Kings. County Special Term and entered in the office of the clerk of the county of Kings on the 2d day of February, 1904, denying the defendant’s motion to vacate and set aside warrants of attachment theretofore issued herein.

Appeal by the defendants, The National Sugar Refining Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 11th day of July, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, in an action to establish a right of way and to enjoin the defendants from obstructing the same by means of a railroad siding.

<p> Poolselling—proof sustaining a comiction thereof—instruction to the jury as to the punishment therefor. </p> <p>IJpon the trial of an indictment, charging the defendant with the crime of pool-selling in violation of section 351 of the Penal Code, no evidence was given that the defendant actually engaged in poolselling himself. Testimony was, however, given to the effect that on the day mentioned in the indictment, pool-selling was conducted in a. building occupied by the defendant as a liquor saloon; that for a period of five minutes defendant was present in the room ■ talking with one Cunningham, while the latter was engaged in hanging up cards bearing the names of the horses entered for each race; that on the day previous to that charged in the indictment, the defendant exercised control over the room by refusing to allow.a police officer to enter it, and that a telephone found in the pool room had been placed there upon the application of the defendant.</p> <p>Held, that the evidence was sufficient to sustain a finding that the defendant assisted and abetted poolselling;</p> <p>That it was not error for the court to instruct the jury as to the punishment which could he inflicted upon the defendant if he were found guilty.</p>

<p>Appeal by the plaintiff, The People of the State of Hew York* from a judgment of the County Court of Richmond county in favor of the defendant, bearing, date the 18th day of Hovember* 1903, and entered in the office of the clerk of the county of Richmond upon the decision of the court sustaining the defendant’s demurrer to an indictment for manslaughter in the second degree theretofore filed herein, on the ground that the facts stated in such indictment do not constitute a crime.</p> <p>The indictment which was held to be insufficient upon the demurrer was as follows :■ “ The Grand Jury of the County of Richmond* by this Indictment, accuse James Murphy of the crime of man¡slaughter in the second degree, committed as follows: The said ■James Murphy, late of Linoleumville, in the Third Ward of the Borough of Richmond, City of Hew York, and in the County of Richmond aforesaid, on or about the twenty-seventh day of Hovernber, in thp year of our Lord one thousand nine hundred and two, at the place and county aforesaid, for that the said James Mur-; phy did on the day aforesaid wilfully and feloniously break, loosen, ■disengage, or otherwise wilfully and feloniously interfere with the rigging, mechanism and physical apparatus, whereby a certain live -electric arc-light and the current-charged wires thereto attached, ■situated on the Richmond Turnpike in said County and near LinoJeumville, could be lowered from their usual safe positions to points unsafe and dangerous; and that the said James Murphy by such breaking, loosening, disengaging or' interfering did so cause the said •current-charged wires and live electric arc-light to become lowered from their usual safe positions; and that subsequently one August Klein did come in contact with said live arc-light' or wires so lowered, and that he was then and thereby killed. The said act having been committed by the said James Murphy without a design to -effect death, but by his act,■ procurement or culpable negligence ¡against the form of the statute in such case made and provided, ■and against the Peace of the People of the State of Hew York, and ¡their dignity.” t</p>

<p>New York Municipal Court — a demand for a jury trial by the defendant after his default has been opened, held to be sufficient.</p> <p>In an action brought by an attorney and counselor at law in the Municipal Court of the city of New York to recover the value of professional services rendered by him to the defendant, the latter suffered judgment to be taken against him by default. Thereafter the default was opened upon the condition, among others, that an answer should be filed on or before November 6, 1903. When this direction was made, the counsel for the defendant asked for a jury trial and offered to pay the clerk for a- venire. The application was denied by the court.’</p> <p>The defendant filed his answer on November 6, 1903, and renewed his motion for a jury trial and his tender, but the application was again denied.</p> <p>Held, that under section 331 of the New York Municipal Court Act (Laws of 1903, chap. 580), which provides, “At any time when an issue of fact is joined,, either party may demand a trial by jury, and unless so demanded at the joining of issue, a jury trial is waived,” the defendant’s application for a jury-trial should have been granted;</p> <p>That the provision of section 145 of the Municipal Court Act, that issue in certain cases must be joined on the return day of the summons, except as otherwise specially prescribed in the-statute, did not necessitate a holding that issue was joined in the case at bar when the defendant’s default was taken;</p> <p>That the opening of the default left the parties to the action in exactly the same position which they occupied before the return day of the summons, except in so far as the order opening the default imposed conditions upon the defendant.</p>

Appeal by the defendant, Arthur H. Ely, from an interlocutory judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of August, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, Elizabeth JB. Welsh, from a judgment of the Supreme Court in favor of the'plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of April, 1903, upon the Verdict of a jury for $4,000, and also from an order entered, in said clerk’s office on the 30th day of April, 1903, denying the defendant’s motion for a new trial made upon - the minutes.

Appeal by the defendant, James B. Healy, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of June, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 16th day of July, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Town bonding — the petition to the supervisors must be in the form required by the statute in existence at the time it is to be acted upon by the supervisors—chapter 469 of the Laws of 1903 is not retrospective.</p> <p>October 6, 1903, the town board of a town and the commissioner of highways thereof presented a petition to the board of supervisors of the county pursuant to the provisions of section 69 of the County Law (Laws of 1893, chap. - 686, as amd. by Laws of 1900, chap. 13), for leave to issue bonds for highway purposes.</p> <p>The petition was granted by a resolution of the board of supervisors passed June 1, 1903, and the bonds were subsequently issued and sold.</p> <p>May 7, 1903, chapter 469 of the Laws of 1903, which amended section 69 of the' County Law by providing that the petition to issue bonds for highway purposes should have the sanction of the vote of a majority of the electors of the town, and that it should contain a written estimate of the expense of the highway improvement, went into effect.</p> <p>The petition acted upon by the board of supervisors did not comply with these requirements of the act of 1903.</p> <p>Held, that the bonds were invalid;</p> <p>That it could not be successfully urged that, as the town had taken action under the law as it existed prior to May 7, 1903, the jurisdiction of the board of supervisors was not affected by the amendment of the statute, under the provisions of section 31 of the Statutory Construction Law (Laws of 1893, chap. ,677), which provides that the “repeal of a statute or part thereof shall not affect or impair any act done or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time such" repeal takes effect;”</p> <p>That the act of 1903 was not retrospective, either as to the board of supervisors or the town. ’</p>

Appeal by the defendants, George L. Montgomery and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on 'the 25th day of June, 1903, upon the decision of the court, rendered after a'trial at the Kings County Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.

Appeal by the defendant, John Alvin Young, from, an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of July, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, William O. Rédfield, ah commissioner of public works for the borough of Brooklyn, from an order of the Supreme Court, made, at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 16th day of December, 1903, granting the relators’ application for a peremptory writ of mandamus.

Appeal by the Village of Port Chester from an order of the Supreme Court, made at the Kings County Spécial Term and entered in the office of the clerk of the county of Westchester on the 10th day. of November, 1903, denying the appellant’s motion to confirm the report of commissioners in the above-entitled matter, and vacating and setting aside said report; also from an order entered in said clerk’s office on the 15th day of December, 1903, denying a motion made by the said…

Appeal by. the defendant, Yennette F. Pelletreau, from a judgment of the Municipal Court of the city of Hew York, borough off Brooklyn, in favor of the plaintiff, entered on the 29th.day of July, 1903. , .

<p>Examination of a party before trial — not granted to enable a plaintiff to learn whether lie has a cause of action — knowledge of the matter by other witnesses. "</p> <p>An order for the examination óf a defendant before trial will not be granted where the only purpose thereof is to compel the defendant to disclose to the plaintiff whether or not the latter has a cause of action, and the matters in respect to which the plaintiff desires to examine the defendant are within the knowledge of two persons who are not parties to the action, and who, so far as appears, may be called as witnesses upon the trial.</p>

<p>Appeal by Axel J. Young from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the chirk of the county of Kings on the 16th day of May, 1903, granting the petitioner’s motion to revoke and cancel a liquor tax certificate theretofore issued to the appellant.</p>

<p>Will — equitable cause of action in a life tenant against executors who hold possession of the premises in which the life tenure exists — defense that the plaintiff had an adequate remedy at law — costs charged against executors in their individual capacity.</p> <p>The will of a testator, by the 8th paragraph thereof, provided: “I also give unto my said niece the house and lot No. 288 Clinton Avenue, Brooklyn, subject to the life estate therein of Margaret F. Bodkin; and the houses and lots Nos. 221 and 223 High Street, in Brooklyn. To have and to hold the said three separate parcels of .real estate for and during her natural life, with the fee thereof unto her issue her surviving, but in case of her death without issue surviving, I give and devise said three parcels of real estate unto my brother Martin, or in case he shall have died before the termination of said life estates, unto his heirs, per stirpes.”</p> <p>The 17th paragraph thereof provided: “ I authorize and empower my Executors to take charge of all my real estate, except that directly devised with right of immediate possession to the devisee, and to let, lease, sell and convey the same or any portion thereof. The proceeds derived from the sale of any real estate in which a life interest continues under this will shall be regarded as real estate and be carefully and separately invested by my Executors in order to preserve the interest therein of the life tenant and reversioners. My Executors shall collect the rents and income from all said property and therefrom pay the taxes, repairs and other charges thereon and pay over the net income derived from each portion, or from the investment made in lieu of the real estate to the life tenant entitled thereto.”</p> <p>Subsequent to the probate of the will the testator’s niece brought an action against the executors to secure a determination of her rights under the will, alleging that the executors had entered into possession of the High street premises, and that they “have ever since said time collected, and are now collecting, the rents and income thereof, and have and do now claim the right to hold, manage and control the said real estate and to collect the rents issuing therefrom, as testamentary trustees, pursuant to the terms of said last will and testament.”</p> <p>The defendants admitted these allegations, and, upon the trial, the court held that the. executors were not entitled to hold the premises against the plaintiff, and that the latter was entitled to an accounting. It also awarded costs against the defendants personally.</p> <p>Upon an appeal by the executors from so much of the judgment as determined that the Supreme Court sitting as a court of equity had jurisdiction of the action, it was</p> <p>Held, that the judgment should be affirmed;</p> <p>That the facts set forth by the plaintiff were sufficient to constitute an equitable cause of action against the defendants and to entitle the plaintiff to the relief granted;</p> <p>That the defendants could not successfully urge the objection that the court should have refused to take-jurisdiction of the action because the plaintiff had an adequate remedy at law, even if that objection were tenable, as they had neglected to plead that defense in their answer;</p> <p>That a statement in the answer that proceedings are pending in the Surrogate’s Court, and that such court.has “ ample jurisdiction to determine any disputes that have arisen or may arise between the parties concerned in said estate, that these defendants do not invoke the intervention of the equitable powers of this court for a construction of said will, and they'deny that the plaintiff is justified in bringing or maintaining this action,” was not a sufficient allegation of the existence of an adequate remedy at law;</p> <p>That in unlawfully refusing to give the plaintiff possession of the property in question the executors acted personally and not in their representative capacity, and were, therefore, properly charged with costs individually.</p>

<p>Appeal by the plaintiff, James Buckley, as administrator, etc., of John M. Golden, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 21st day of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the oth day of March, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, The Long Island Real Estate Exchange and Investment Company, from a judgment of the County Court of Kings county in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 1st day of June, 1903, upon the decision of the court rendered after a trial before the court without a jury.</p>

Appeal by the plaintiff, James D. Roman, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 15th day of June, 1903, dismissing the complaint upon the merits.

' Appeal by the plaintiffs, J. Howard Ashfield and another, from a judgment of the Municipal Court of the city of Hew York borough of Brooklyn, in favor of the defendant, entered on the 28th day of January, 1904.

<p>Appeal by the defendant, The New York and Richmond Gas Company, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor of the plaintiff, entered on the 25th day of January, 1904.</p>

<p>Appeal by the petitioners, Benjamin S. Comstock and others; from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 19th day of December, 1903, denying the petitioners’ motion for an order amending a bill of costs as retaxed and a judgment theretofore entered in the above-entitled action.</p>

Appeal by the defendants, Gordon B. Archer ■ and others, from, so much of an interlocutory judgment of the Supreme Court in favor of the plaintiff and the defendant William C. Johnson, entered in the office of the clerk of the county of Westchester on the 18th day of June, 1903, upon the decision of the court rendered ,after a trial at the Westchester Special Térm, as directs the specific per-, form^nce by said defendants of a contract made by them prior to the commencement…

Appeal by the defendant, Lewis German, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 11th day of June, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by the plaintiff, Timothy J. Sullivan, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered oñ the 24th day of October, 1902, dismissing the plaintiff’s complaint.

Appeal by the defendant, Thomas L. Fogarty, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the 3d day of December, 1903.

Certiorari issued out of the Supreme Court and attested on the 23d day of June, 1902, directed to John N. Partridge, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in dismissing the relator from the police force of the city of New York.

Appeal by the plaintiff, Daniel J. Early, as trustee in bankruptcy of the estate of William H. Bard, from an order of the Supreme-Court, made' at the Kings County Special Term and- entered in the office of tlie clerk of the county of Westchester on the 28th day of January, 1904, vacating and setting aside a judgment theretofore entered in the action in favor of the plaintiff.

Appeal by the plaintiffs, Helen Huber and others, as executors, etc., of Otto Huber, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of November, 1903, refusing to vacate a prior order which granted a motion made by the respondent, the purchaser, at a foreclosure sale in the above-entitled action, to be relieved from his purchase.

<p>Appeal by the defendants, Robert Grier Monroe, as commismissioner of water supply, gas and electricity o£ the city of New York, and others, from an order of the Supreme Court,'made at the Kings County Special Term and entered in the office of the clerk of the county of Kings oh the 15th day of December, 1903, granting the plaintiff’s motion for an injunction pendente lite.</p>

<p>Transfer taco —refunding of money by the State Comptroller when an application therefor is not ba/rred by the Statute of Limitations—the Code provisions are not applicable — the reversal of the tax may be by the surrogate.</p> <p>November 29, 1895, when the Transfer Tax Law (Laws of 1892, chap. 399) was in force, an executor paid, under the compulsion of an order of the Surrogate’s Court, a transfer tax amounting to §660 upon property which was exempt from taxation.</p> <p>Section 6 of the Transfer' Tax Law provided that it should be lawful for the State Comptroller, upon proof that any portion of a tax had been paid erroneously, to require it to be' refunded, providing, however, that all applications for such refunding should be made within five years from the payment of the tax. This provision was incorporated, without change, in section 225 of the Tax Law (Laws of 1896, chap. 908)' which revised the Transfer Tax Law.</p> <p>In 1897, by chapter 284 of that year, section 225 of the Tax Law was amended so as to read as follows: “If after the payment of any tax in pursuance of an order fixing such tax, made by the surrogate having jurisdiction, such order be modified or reversed, on due notice to the Comptroller of the State, the State Comptroller shall, by order, direct and allow the treasurer of the county, or the comptroller of the city of New York, to refund to the executor, administrator, trustee, person or persons, by whom such tax had been paid, fhe amount of any moneys paid or deposited on account of such tax in excess of the amount of the tax fixed by the order modified or reversed, • * * *; ■ but no application for such refund shall be made after one year from such reversal or modification.”</p> <p>By chapter 882 of the Laws of 1900, section 225 of the Tax Law was further amended so as to provide for the refunding by an order of the State Comptroller of transfer taxes erroneously paid, if the order was modified or reversed Within two years from and after the date of the entry of the order fixing the tax.</p> <p>Held, that an application by the executors, in October, 1903, for an order vacating the order fixing the transfer tax and directing the State Comptroller to refund the tax erroneously paid, was not barred by the Statute of Limitations; That the only limitation contained in section 225 of the Tax Law, as amended in 1897, related to the application to the -Comptroller for the refunding of the tax after the order fixing the tax had been reversed or modified, and that it did not limit the time when the modification or reversal of the surrogate’s order must be procured;</p> <p>That the reversal or modification contemplated by the section, as amended in 1897, need not be by the action of an appellate tribunal, but might be made by the surrogate himself;</p> <p>That section 225, as amended by the act of 1900 could not be given a retroactive effect, as, if the amendment should be deemed to create a Statute of Limitations,</p> <p>' such construction would deprive of all redress those persons from whom payment of an illegal transfer tax had been forcibly exacted, who had delayed proceedings to procure the repayment of the same in reliance upon pre-existing legislation;</p> <p>That the statutes of limitations prescribed by sections 380, 382 and 414 of the Code of Civil Procedure were not applicable to the remedies provided by section 225 of the Tax Law for procuring the repayment of a void tax;</p> <p>That the Tax Law contains within itself all the limitations affecting the duty and liability of the State Comptroller to make restitution of transfer taxes illegally imposed.</p>

Appeal by the plaintiff, Bruno Haack, an infant, by Laura A. Haack, his guardian ad litem, from a judgment of the Supreme Court in favor of certain of the defendants, entered in the office of the clerk of the county of Kings on the. 17th day of March, 1903, upon the dismissal of the complaint by direction of the court as to the defendants The Brooklyn Labor Lyceum Association and Joseph Heilig after a trial at the Kings County Trial Term, the complaint having been previously…

Appeal by the plaintiffs, Patrick B. McSweeney and another, as administrators, etc., of Thomas McSweeney, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 4th day of June, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term, and also from an order entered in said clerk’s office on the 20th day of June, 1903, denying the plaintiffs’…

<p>Appeal by the defendants, James L. Wells, president, and others, commissioners of taxes and assessments, constituting the board of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of November, 1903, denying the defendant’s motion to quash or supersede a writ of certiorari theretofore issued to review the assessment of the personal estate of William A. Stuart, deceased.</p>

Appeal by the plaintiff, Louis B. Prahar, from a judgment of the Supreme Court, nominally in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 30th day of July, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of June, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by Caroline Curtiss Johnson and others from a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 16th day of February, 1903, settling the accounts of the trustees under the will of Abijáh Curtiss, deceased.</p>

<p>■ Appeal by the defendant, Nikola Tesla, from a judgment of the County Court of Suffolk county in favor of the plaintiff, entered in the office of the clerk of the county of Suffolk on the 9th day of May, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on. the 1st day of June, 1903, denying the' defendant’s motion for a new trial made upon the -minutes.</p>

<p>Insurance — breach of a wa/i'ranty that the benejicicwy was the insured’s wife.</p> <p>A warranty contained in a policy of accident insurance that the beneficiary • therein is the wife of the insúred, will, if false, render the policy void.</p>

<p>Appeal by the plaintiff, Alfred Nolan Martin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 10th day of July, 1903, upon the dismissal of the complaint by direction of the court upon the plaintiff’s opening on a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 10th day of July,- 1903, denying the plaintiff’s motion' for a new trial made upon the minutes.</p>

Appeal by the defendants, John T. Oakley, as commissioner of water supply, gas and electricity of the city of New Tork, and another, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the-clerk of the county of Kings on the 8th day of February, 1904, as-directs the issuance of an alternative writ of mandamus. .

Appeal by Emma L. Watson from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of October, 1903, denying the appellant’s motion to vacate and set aside an order of reference entered in said clerk’s office on the 14th day of September, 1903, and also from an order entered in said clerk’s office on the 4th day of November, 1903, revoking and canceling liquor tax certificate No.…

<p>Appeal by the defendant, The New York Herald Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 9th day of October, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.</p> <p>The action was brought by the plaintiff, for many years the proprietor. of a hotel at White Plains, Westchester county, N, Y., known as the Roma Hotel, to recover damages alleged to have been sustained by reason of the publication of two alleged libels, one in the New York Herald, and one in the Evening Telegram, two newspapers published by the defendant. One of the alleged libels, which was published in the New York Herald on. January 24,1902, was as follows: ,</p> <p>“ Woman found by the roadside, foully slain, met the fate THAT WAS INTENDED FOR HER DAUGHTER.</p> <p>“ When the family fortune fell lower than usual a few months ago the daughter, Isabella, took service as a nurse girl in a family living about four blocks from her home.. She was often on the street as late as six o’clock in the evening and at such times attracted the attention of passers by, though it is said that she is of a modest and retiring nature. Further down Lake street is the Roma Hotel, kept by Costantino Maglio. (The plaintiff meaning.) Many Italians make the hotel their headquarters and it has a bad reputation. An attempt was recently made to have it closed, but the attempt failed. From this hotel, a tall Italian, whose name is not known, on more than one occasion followed Miss Allen. He attempted t® speak to her and was repulsed. Once he sprang out at her from the side of the street just before she entered her home. Her screams brought her father to her assistance and the Italian disappeared. To-day Miss Allen accompanied a reporter for the Herald to the Roma Hotel, she was unable to identify her assailant. * * * Suspicion points with emphasis in the direction of an Italian. Not far from where Mrs. Allen’s body was found is a. hotel (meaning the Roma Hotel, kept by the plaintiff as aforesaid), patronized by Italians, and it is the opinion of Dr. Curtiss that the murderer will be found there. There is good reason to believe that a mistake was made when the crime was committed, and that Mrs. Allen’s daughter, Isabella, was intended as the victim. The girl, who is in a state of hysterical fear as a result of the terrible tragedy that has come into her life, is of the opinion' that she escaped death by the merest accident, and that her mother was sacrificed in her stead. Less than a month ago Miss Allen was followed to the door of her home by an Italian who attempted to intercept her.”</p> <p>The other alleged libel was published in the Evening Telegram on January 24, 1902, and was as follows:</p> <p>“Retbeat fob the vicious (meaning thereby that the Roma Hotel, of which the plaintiff was keeper, as aforesaid, secreted and harbored and was the home of vicious persons and- criminals.) Husband of slain woman fbeed.</p> <p>“ Police now seek other clews. Mrs. Allen found murdered by roadside in White Plains, N. Y., is believed to have met fate intended for her daughter, who had twice been threatened by Italian who cannot be found. Isabella (meaning the daughter of the said ' Mrs. Allen) is employed as a nurse girl in the family living about four blocks from her home. She was often on the street as late as six o’clock in the evening, and at such times attracted the attention of passers by, though it is said that she is of a modest and retiring nature. Further down Lake street is the Roma Hotel, kept by Costantino Maglio (the plaintiff meaning). Many Italians make the hotel .their headquarters, and it has a bad reputation. An attempt was recently made to have it closed, but the attempt failed. From this hotel a tall Italian, whose name is not known, on more than one occasion followed Miss Allen; he attempted to speak to her and was repulsed. Once he sprang out at her from the side of the street just before she entered her home. Her screams brought her father to her assistance and the Italian disappeared. When taken to the Roma Hotel yesterday, however, Miss Allen was unable to identify her assailant. * * *</p> <p>“ White Plains, N, Y., Friday. Strenuous efforts on the part of the police to discover the murderer of Isabella Allen, whose body was found under such shocking and peculiar circumstances Thursday night, have so far been unavailing. James Allen, her husband, who was arrested on suspicion, has been released, and the police are now trying to find the man who notified Mr. Allen of the discovery of his wife’s body, went with him to the police station to report the matter and then mysteriously disappeared. Suspicion points with emphasis in the direction of an Italian. Not far from where Mrs. Allen’s body was found is a hotel patronized by Italians (meaning the Roma Hotel kept by plaintiff as aforesaid), and it is the opinion of Dr. Curtiss, who performed the autopsy, that the murderer will be found there. There are good reasons for believing that a mistake was made when the crime was committed, and that Mrs. Allen’s daughter Isabella was. intended as the victim. The girl, who is in a state of hysterical fear as a result of the terrible tragedy that has come into her life, is of the opinion that she escaped death by the merest accident and that her mother was sacrificed in her stead.”</p>

Appeal by the plaintiff, Walter Powles, from a judgment of the Supreme Court in favor of the defendants, entered in the office of-the clerk of the county of Kings on the '20th day of June, 1902, upon the dismissal of the complaint by direction of the court after á trial at the Kings County Trial Term.

Appeal by Gustavus A. Rogers, the defendant’s attorney in the first above-entitled action and the plaintiff in the second above-entitled action, from an order of the Supreme Court in the former action, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 16th day of April, 1903, denying a motion made by the said Gustavus A. Rogers to restore that case to the day calendar “ for the purpose of protecting the rights of the…

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 20th day of April, 1903, upon the verdict of a jury for $2,500, and also from an brdfer entered in said clerk’s office on the 19th day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Sew York city — cha/rge for the use of a wharf for the first twenty-four hours — implied contract.</p> <p>Section 862 of the 'revised Greater New York charter (Laws of 1901, chap. 466), which provides: “It shall be lawful for the owners or lessees of any pier, wharf, or bulkhead within The City of New York, to charge and collect the sum of five cents per ton on all goods, merchandise and materials remaining on the pier, wharf or bulkhead owned or leased by him, for every day after the expiration of twenty-four hours from the time such goods, merchandise and materials shall have been left or deposited on such pier, wharf or bulkhead, and the same shall he a lien thereon,” does not prevent wharfingers from entering into special contracts for the use of their wharves for the first twenty-four hours.</p> <p>If no special contract is made, the wharfinger is entitled to recover upon an implied contract the reasonable value of the use of his wharf during such first twenty-four hours.</p>

<p>Appeal by the defendant, Henry W. Austin, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 25th day of September, 1903.</p>

Appeal by the defendant, Borden’s Condensed Milk Company, from a judgment of the. Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 30th day of December, 1903.

<p>Negligence —liability of a landlord for injuries resulting from, defects in a window sash — duty of the landlord to advise the tenant thereof.</p> <p>In an action brought against a landlord by a tenant to recover damages for personal injuries, which the tenant, while engaged in washing windows in the demised premises, sustained by falling from a window, in consequence of the absence of a stop on the upper sash thereof, it is error for the court to charge that if there was a hidden defect or danger in the premises at the time of the execution of the lease the landlord became liable, irrespective of whether he had knowledge of the defect or danger, or whether he could, in the exercise of reasonable care, have discovered the same.</p> <p>If the landlord knew of the defect, and it was such as a reasonably prudent man would regard as dangerous to tenants, it was his duty to call the tenant’s attention to the matter.</p> <p>Where, however, it appears that the defect in question was but slight and was entirely harmless, except under special conditions not likely to occur at frequent periods, the mere failure of the landlord, who knew of the defect, to call the tenant’s attention thereto, will not, in the absence of any question of fraudulent concealment, charge the landlord with liability.</p> <p>Hooker, J., dissented.</p>

Appeal by the plaintiff, Maria E. Duclcer, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 2d day of July, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the defendant’s demurrer to the second cause of action set forth in the plaintiff’s complaint.

Appeal by the plaintiff, John H. Cusack, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, entered on the 17th day of December, 1903.

Reargttment of an appeal by the plaintiff, Bridget Walsh, as administratrix de bonis non, etc., of Michael Walsh, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 4th day of January, 1900, upon the dismissal of the complaint b'y direction of the court after a trial at the Kings County Trial Term.

<p>Appeal by the defendant, the Central Railroad Company of New Jersey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 28th day of May, 1903, upon the verdict of a jury for $849.35, and also from an order entered in said clerk’s office on the 22d day of May, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The statute of the State of New Jersey referred to in the opinion reads as follows:</p> <p>“ Any railroad company of this State may, by giving notice to any person or persons offering goods, merchandise or baggage for transportation on the railroad, or in the boats or vessels of such company, limit their responsibility as carriers thereof to one hundred dollars for every one hundred pounds weight of such goods, merchandise or baggage, and at that rate for a greater , or less, quantity, unless such person or persons so offering such goods, merchandise or baggage for transportation, shall pay to said company, by way of insurance, for any additional amount of responsibility to be assumed, such rate or rates as may be charged by said company therefor, not to exceed the legal rates for transporting one hundred pounds of goods or merchandise on such railroad, or in such boats or vessels, for every two hundred dollars of additional responsibility assumed on each one hundred pounds of such goods, merchandise or baggage, and at that rate for a greater or less quantity ; and a general notice of the limitation'of such company’s responsibility, placed in a conspicuous place, at or in the receiving office of such company, where, goods, merchandisé. or baggage are usually-received by them for transportation, and inserted in the- bills of lading or receipts given for such goods or merchandise, and in the tickets delivered to passengers,. shall be deemed sufficient notice under this section.” (See Gen. Stat. of N. J„ 2612, § 138.) '</p>

. Appeal by the defendant, Virginia Willock, as administratrix, etc., of William Willock, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk, of the county of Westchester on the 10th day of June, 1903, upon the report of a referee.

Appeal by the plaintiffs, Ida Neufeld and others, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 23d day of May, 1902, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the complaint upon the merits.

<p>Appeal by the plaintiffs, Juan M. Ceballos and others, as copartners trading under the firm name and style of J. M. Ceballos & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 8th day of August, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term at which the jury had passed upon certain questions submitted to them.</p> <p>The action was brought to recover commissions on freights under an alleged contract between the plaintiffs’ predecessor, Juan M. Ceballos, with the defendant’s predecessor, W. D. Munson.</p>

Appeal by the plaintiff, George W. Drumheller, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester upon the decision of the court rendered after a trial at the Westchester Special Term, dismissing the plaintiff’s complaint upon the merits, and also from an order bearing date the 12th day of March, 1903, and entered in said clerk’s office, denying the plaintiff’s motion for a new trial made upon the…

Appeals by The Board of Trustees of the Village of White Plains from three orders of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 13th day of October,. 1903, in three separate proceedings, granting a peremptory writ of mandamus in. each proceeding.