Volume 93 — New York Supplement

<p>1. Bbokebs—Commission—Evidence—Sufficiency.</p> <p>In an action by a broker on a contract whereby he was to Induce the owner of real estate to sell it to defendant, evidence considered, and held insufficient to show that he was instrumental in effecting the sale. O’Brien, J., dissenting.</p>

<p>Natural Streams—Diversion of Water—Use for Commercial Purposes. One through whose land a stream flows has no right, as against a lower riparian owner, to divert it to a reservoir, and use the ice there formed for commercial purposes.</p> <p>[Ed. Note.—For cases in point, see voi. 48, Cent. Dig. Waters and Water Courses, §§ 33-37, 67-71.]</p>

<p>1. Adverse Possession—Incorporeal Rights.</p> <p>A street railway company entered upon a street by consent of the municipal authorities, expressly claiming that its occupation was limited to the public right in the street, and that it did not invade any property right possessed by abutting owners. Afterward a case was decided which held that the occupation of the street by the railway company was in fact an interference with the abutting owners’ easements of light, air, and access. Held, that limitations did not begin to run against the right of an abutting owner to sue for the injury to his incorporeal rights until the determination that the company was interfering with such rights.</p> <p>2, Same—Admission that Possession is not Adverse.</p> <p>Where a street railway company which occupied a street so as to interfere with the abutting owners’ easements of light, air, and access made compensation to some owners for such interference, it thereby admitted that its use of the easements was not hostile and adverse as to any of the owners.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Peter Graber and another against John Gault and an- • other. From an order directing the cancellation of a judgment in favor of plaintiffs in such action, plaintiffs appeal. Reversed.</p>

Proceedings on the judicial settlement of the account of John Notman and others, the committee of Blanche L. Andrews, an incompetent. From an order settling the account of the committee, the committee appeals. Order modified.

Proceedings by the mayor, etc., to acquire title to land for the purpose of opening Lafayette avenue, in the city of New York. From an order returning the report of commissioners of estimate and assessment for correction, the city and one Dickey and one Varnum prosecute cross-appeals. Affirmed.

<p>Brokers—Employment—Evidence—Sufficiency.</p> <p>Evidence held sufficient to justify a finding that plaintiff’s assignor was employed by defendants to procure a purchaser for patent rights owned by defendants.</p> <p>Ingraham, J., dissenting in part.</p>

Action by Ferdinand M. Hausling against John Rheinfrank and others. From an order denying their motion to vacate an order for the examination of certain defendants, defendants appeal. Reversed.

<p>1. Principal and Agent—Establishment of Agency.</p> <p>A stockbroker who had. his own customers and his own office, and who employed his own clerks, agreed with defendant that the latter should buy and sell stocks for him and for his customers, receive therefor certain commissions and be allowed certain rebates. Under this agreement, orders were telegraphed by the stockbroker to defendant, who sometimes executed them and sometimes did not. Where the orders were accepted, the stockbroker procured the margin from his customer, and gave him a memorandum of the transaction signed by himself. Defendant knew nothing of the broker’s customers, but the latter extended credit to them as he saw fit, and stood the loss in case of a customer’s failure to pay. The accounts between defendant and the broker were settled each day. Held, that the broker was not the agent of defendant, and the latter could not be held liable for representations made by the former to his customers.</p> <p>2. Brokers—Transactions with Customers—Settlement.</p> <p>One who deposits money with a stockbroker to purchase stocks on margin cannot recover the money so deposited in the absence of proof that the stocks were not purchased as directed, but can, only demand that the transaction shall be closed, and profits and losses' adjusted, or tender to the broker the balance remaining due upon the purchase price, and take the stock.</p>

Action by Eugene G. Gilroy, as receiver of the Columbia Publishing Company, against the Everson Hickok Company and another. From a judgment for defendants, entered on a directed verdict, plaintiff appeals. Reversed.

Action by John Z. Rogers and others against Robert H. Ingersoll and another on a demand attached. From a judgment for plaintiffs, defendants appeal. Affirmed.

Action by Rose M. O’Neil against the Metropolitan Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed.

Action by W. & J. Sloane against Burnett Y. Tiffany. From an order vacating an order under which a special execution was issued, plaintiff appeals. Affirmed.

<p>Appeal from Special Term, New York County.</p> <p>Action by John C. Diehl against Peter B. Dreyer. From an order in favor of defendant, plaintiff appeals. Reversed.</p>

Action by George W. Prichard and another against Augusta C. A. Sigafus and others. From a judgment in favor of plaintiffs, and from an order denying a motion for a new trial, defendant Sigafus and another appeal. Reversed.

<p>Appeal from Special Term, New York County.</p> <p>Action by Lawrence Griffith against Frank L. Dodgson and another. From an interlocutory judgment overruling a demurrer to-the complaint, defendants appeal. Reversed.</p>

<p>1. Divorce—Proceedings—Questions fob Jury—Framed Issues.</p> <p>In an action for divorce on the ground of adultery, the complaint alleged that defendant had committed the offense with the same co-respondent at divers times between the 1st of January and the 7th of November, 1904, at divers places in the city of New York and elsewhere. Defendant failed to move to have the complaint made more definite or certain, or for a bill of particulars. The court framed an issue for the jury in the language of the complaint. Held, that defendant was entitled to have the issues framed with sufficient definiteness to avoid surprise on the trial, and enable him to prepare his defense, and consequently the words “and elsewhere” should be stricken from the issue, but, in view of his failure to take the steps specified, or to present an affidavit showing the necessity for having the issue so framed as to specifically designate by streets and numbers the precise places of the commission of the offense, the remainder of the issue would be permitted to stand as framed.</p> <p>[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Divorce, §§ 346, 484-487.1</p> <p>2. Same.</p> <p>In a suit for divorce on the ground of adultery, the questions of consent, limitations, and condonement are to be tried by the court after the rendition of the verdict upon the issue of adultery, and should not be submitted to the jury with that issue.</p>

Action by James S. Stewart against Bernard M. Baruch. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

<p>Appeal from Trial Term, New York County.</p> <p>Action by the Netherlands Fire Insurance Company against Joseph R. Barry and others, partners doing business under the firm name and style of J. Ramsay Barry & Co. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.</p>

Action by Elizur V. Foote, executor of Edward S. Stokes, deceased, against Mary C. Leary, administratrix of James D. Leary, and another. From a judgment on a verdict directed for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed.

Action by James A. Woolf and another against Bertha L. Schaefer and others. From the judgment rendered (85 N. Y. Supp. 205), plaintiffs and certain defendants separately appeal. Reversed.

<p>Action by Anna M. Bennett against Caroline Edgar. Judgment for plaintiff.</p>

<p>Appeal from Special Term, Orange County.</p> <p>Action by Elizabeth Clark and another against Jesse Durland. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.</p>

In the matter of the application of the rapid transit commissioners to acquire title to certain lands. Appeal from an order granting allowances to property owners. Reversed.

Action by Charles D. Ingersoll and another as executors of the last will of Delia A. Blanchard, deceased, against Robert Weld and others. From a judgment in favor of plaintiffs, and from an intermediate order appointing a receiver and granting an injunction pendente lite, defendant Weld appeals. Modified and affirmed.

Proceeding by the people, on the relation of Melvin Stephens, to review the audit by the board of supervisors of Nassau county disallowing a claim presented by relator. Determination of respondents annulled, and proceeding remitted for proper audit.

Certiorari by the people, on the relation of the Consolidated Ginseng Company of America, against Otto Kelsey, Comptroller of the state of New York, to review the Comptroller’s determination of relator’s privilege tax. Comptroller’s determination modified.

<p>Damages—Evidence—Sufficiency—Loss of Baggage. .</p> <p>In hn action for the loss of baggage in transit, testimony of plaintiff that he based his opinion of the value of the goods lost on their cost price, unaccompanied by further testimony as to such cost price except in the case of a very few articles, and without any evidence of the age or condition of the goods when lost, is insufficient to show the value of the goods lost or support a judgment for damages.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Emanuel A. Busch against the Interborough Rapid Transit Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by M. J. Taylor & Co. against Leopold N. Asiel. From an order denying a motion for bill of particulars, defendant appeals. Modified. The action is brought to recover damages for injuries to personal property sustained by the plaintiff in consequence of the negligent manner in which the defendant maintained and repaired the roof of certain premises, of which the defendant is the lessor and the plaintiff the lessee.

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District.</p> <p>Action by Henry Malkan against Patrick J. Carlin and another. Judgment for defendants, and plaintiff appeals. Affirmed.</p>

<p>Appeal from City Court of New York, Special Term.</p>

Action by Elias j. Macksoud and others against Nishan L. Dildarían. From an interlocutory judgment overruling a demurrer to the complaint, and from a final judgment for plaintiffs, defendant appeals. Reversed.

Action by Dorothy Rankert by Chester G. Blaine, her guardian ad litem, against George Rankert. From a judgment overruling defendant’s demurrer to the complaint, he appeals. Reversed.

Action by Michael O’Keefe against the Great Northern Elevator Company. From a judgment in favor of defendant, and from an order dismissing the complaint at the close of plaintiff’s case, he appeals. Reversed.

<p>Dissenting opinion. For majority opinion, see 92 N: Y. Supp. 352.</p>

Action by Raphael Herman and another against the William B. Pierce Company to recover damages for defendant’s refusal to renew a written contract for the sale of a patented article. From a judgment in favor of plaintiffs assessing their damages at $10,529.46, defendant appeals. Affirmed.

Action by Edmund G. Rawson against James P. Silo and another. From an order imposing certain terms as conditions of permitting the withdrawal of a juror, plaintiff appeals. Affirmed.

In the matter of the final settlement of the account of Levi Bradbury, as executor of the last will of Jerusha M. Sherman, deceased.

Action by the people against A. Booth & Co. to recover penalties for violation of the fish law. From a judgment for defendant (86 N. Y. Supp. 272, 42 Mise. Rep. 321), the people appeal. Reversed.

Certiorari by the-people, on the relation of John P. Herrick, to review the audit and allowance by the board of supervisors of Allegany county of the account of relator. Determination of board modified.

Action by Osc.ar Hagin, by George D. Hagin, his guardian ad litem, against the Cayauga Lake Cement Company. From an order striking out defendant’s counterclaim, and transferring the case from the trial calendar of the county court to the law calendar, defendant appeals. Reversed.

<p>Conversion—Evidence—Demand.</p> <p>Where plaintiff turned over to defendant hats to sell for plaintiff’s account, plaintiff could not maintain an action for conversion. of the hats ■ before a sale, and before any demand for return of the hats.</p>

<p>Appeal from Trial Term, Albany County.</p> <p>Action by Esther Walsh against the Metropolitan Life Insurance Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed.</p>

Action by Thomas J. Hayward and another against Empire State Sugar Company and another. From a judgment dismissing the complaint as against defendant Orlando F. Thomas, plaintiffs ap-' peal. Affirmed.

Certiorari by the people, on the relation of Samuel B. Williams, to review the action of the County Court of Monroe county in auditing the accounts of the relator, as treasurer of the city of Rochester, in connection with a sewer system of the city and the town of Gates.. Determination of County Court modified.

Exceptions from Trial Term, Monroe County. Action by Calogero Manzella, as administrator of the estate of Sarah Manzella, against the Rochester Railway Company. A non-suit was granted at the close of plaintiff’s evidence, and plaintiff’s exceptions ordered heard in the first instance by the Appellate Division. Exceptions sustained.

Action by Raphael M. Skilton, as sole surviving partner of the firm of T. J. & R. M. Skilton, against Charles S. Coddington, as trustee in bankruptcy, etc., and others. From a judgment in favor of plaintiff, defendant Coddington appeals. Affirmed.

<p>Appeal from Municipal Court, Borough of Manhattan, Tenth District.</p> <p>Action by Nicholas Schery against John J. Welstead. Judgment .for.plaintiff, and defendant appeals. Reversed. ■ ■</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Eighth District.</p> <p>Action by Mary R. Muttart against Alder C. Muttart. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Appeal dismissed.</p>

<p>Railroads—Destruction of Property by Fire—Complaint—Sufficiency— Negativing Defenses.</p> <p>A complaint against a railroad for loss of goods by fire alleged plaintiff’s ownership of the goods; that they were stored in a building alongside the" tracks of the railroad; that the building was set on fire, and the goods destroyed by sparks thrown from a locomotive belonging to and operated by defendant; and that the fire was set by the negligence of the defendant in having a defectively constructed and equipped englne. Meld, that the complaint was sufficient, without alleging what duty the law imposed on the defendant as to the protection of the property of others against fire set by defectively constructed engines, or that the building was not on defendant’s land, or that plaintiff was not a gratuitous licensee of the building from defendant.</p> <p>Spring and Hiscock, JJ., dissenting.</p>

<p>Street Railroads—Injuries to Passenger — Negligence — Question fob Jury.</p> <p>Evidence in an action against a street railway company for injuries sustained to a passenger while alighting, by reason of the starting of the car, examined, and held that the question of the company’s negligence was for the jury.</p>

Action by Charles E. Clark against Ira Strong and others, in which the defendant named filed an answer seeking certain affirmative relief as against his codefendants. From a judgment granting defendant’s prayer for affirmative relief, Lincoln A. Groat and others, defendants, appeal. Modified.

<p>Judgments—Res Judicata—Recobd.</p> <p>Whether a judgment in an action for rent constitutes a bar to a subsequent action on the ground that the rent sued for in the subsequent action had accrued when the first action was brought cannot be determined on appeal in the second action, where the return does not contain the judgment roll in the first action, or a copy thereof.</p>

<p>Appeal from City Court of New York, Special Term.</p> <p>Action by Benjamin Cohen, an infant, by guardian ad litem, against Rebecca Meryash and others. From an order setting aside a dismissal of the complaint, and restoring the case to the day calendar, defendants appeal. Modified.</p>

<p>Contracts—Breach—Amount op Recovery—Pleading.</p> <p>Where, in an action for damages for breach of a contract in which plaintiff pleaded expenditures for incidental expenses in addition to damage from wages lost, but failed to give any proof thereof, a judgment allowing recovery therefor was erroneous.</p>

Action by Annie Siegel against Bernard Frankel. From an order setting aside an inquest and opening a default taken at trial term, plaintiff appeals. Modified. The action was at issue, and was duly reached on the day calendar of the trial term for trial. Defendant having failed to appear upon call of the calendar, the cause was called for inquest on plaintiff’s motion, and an inquest was thereupon duly taken.

<p>1. Street Railroads—Injuries in Collision—Evidence—Admissibility.</p> <p>In an action for injuries to a horse in a collision with a street car, it was error to permit plaintiff to testify, without stating any facts, that the horse could not be used after the accident for the same purpose that it had been used before.</p> <p>2. Same.</p> <p>It is error to permit a person not an expert on the value of horses t© testify that, before an accident to a horse, it was worth about $200, and after the accident he would not give $50 for it; the question being as to the reasonable value of the horse.</p> <p>3. Same.</p> <p>It is error to permit one suing for damages sustained in a collision between his wagon and a street car to testify as to the amount of repairs, without showing their necessity and reasonable value.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by Helen E. Walsh against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Second District.</p> <p>Action by William H. Ross against Jacob Saron. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Fourth District.</p> <p>Action by Conrad Hummel against Xavier Ackermann. From a judgment for plaintiff, defendant appeals. Affirmed on condition.</p>

Action by William J. Roche, individually and as executor of Henry T. Nason, deceased, against Paul Ford Nason and others.

Three separate writs of certiorari by the people on the relation, respectively, of the Erie Railroad Company, of George R. Conklin and others, and of Henry M'. Leonard and others, against the Board of Railroad Commissioners of the state of New York and others, to review a determination of that body. Determination reversed.

<p>Appeal from Municipal Court, Borough of Manhattan, Twelfth District.</p> <p>Action by Edith K. Carpenter against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>

<p>Appeal from Trial Term, Dutchess County.</p> <p>Action by James P. Northrop against the Poughkeepsie City & Wappingers Falls Electric Railway Company. From a judgment in favor of defendant, and from an order denying plaintiff’s motion for a new trial, he appeals. Affirmed.</p>

<p>Action by William Foster, Jr., against the Central National Bank of Boston and others. Judgment for defendants.</p>

<p>1. Appeal—Issues—Method of Tbial.</p> <p>Where the defendant excepted only to the exclusion of Immaterial proof tendered by him, and the return disclosed no motion to dismiss the complaint at the close of plaintiff’s case or at the conclusion of the trial, defendant, by trying the case in such manner, conceded that it involved only a question of fact.</p> <p>2. Same—Findings of Fact—Evidence—Judgment.</p> <p>Where, in a case involving only a question of fact, it cannot be contended that there was no evidence to sustain the findings, the judgment must be affirmed.</p> <p>[Ed. Note.—For cases in point, see voL 3, Cent Dig. Appeal and Error, I 3979.]</p>

<p>1. Beneficial Associations—Certificates—Death Claims—Statement as to Payment—Noncomfliance with Law—Rights of Beneficiaries—Actions.</p> <p>Noncompliance by a beneficial association with Laws 1892, p. 2014, c. 690, § 210, requiring each notice of assessment or call made by any association transacting life insurance business on the co-operative or assessment plan to truly state the purpose of the same, and if the amount paid on the last death claim has not been paid in full, at its maximum face value, the name of the deceased member, and the maximum face value« of the certificate or policy, and the reason why not paid in full, by reason of which the member remained in ignorance of the fact that the association was not paying death claims in full, and was induced to believe that his certificate was worth its maximum' face value, gives no right of action after his death to the beneficiaries named in the certificate.</p> <p>2. Same—False Representations as to Financial Condition—Circulars.</p> <p>The beneficiaries have no right of action against the association by reason of its falsely representing that it was in a flourishing financial condition, thereby inducing the member to believe that it was able to pay all claims in full, under which belief he paid all assessments made up to the time of his death.</p> <p>3. Same—Misjoinder of Causes of Action—Demurrer.</p> <p>A complaint in an action on the certificate by the beneficiaries to recover the amount due under the same and defendant’s by-laws, and also claiming damages by reason of alleged noncompliance with the law and fraudulent representations, is demurrable for misjoinder of causes of action.</p> <p>4. Same—Action on Contract—Action in Tort.</p> <p>The complaint was also demurrable as joining an action on contract and causes of action in tort and for wrongful illegal acts.</p> <p>5. Same—Parties Plaintiff—Misjoinder.</p> <p>A certificate issued by a beneficial association for $3,000 was payable to the member’s wife or children to the extent of $2,000, and as to the remaining $1,000, to ■ his eldest child. Held, that the wife and eldest child were improperly joined as parties plaintiff in an action on the certificate, as it did not create a joint demand in their favor.</p> <p>Houghton, J., dissenting.</p> <p>The following is the complaint:</p> <p>The plaintiffs herein, by Allen & Sabine, Esqs., their attorneys herein, complaining of the defendant herein, allege on information and belief as follows:</p> <p>Fob a First Cause of Action.</p> <p>First. The defendant the Southern. Tier Masonic Relief Association is, and at all times hereinafter mentioned was, a domestic corporation organized under chapter 319 of the Laws of 1848, and the laws amendatory thereof and supplementary thereto, and is, and at all times hereinafter mentioned was, engaged in the city of Elmira, state of New York, in the business of life insurance upon the co-operative or assessment (nonfraternal) plan, and is, and at all times hereinafter mentioned was, a going concern.</p> <p>Second. That prior to the 7th day of April, 1884, defendant issued to one William Conard a certificate of membership in a class of members of said defendant known as “First Class,” which certificate was in the maximum-sum of two thousand dollars ($2,000); and further that prior to said day defendant likewise issued to said William Conard a certificate of membership in a class of said defendant known as “Second Class," which certificate was in the maximum sum of one thousand dollars ($1,000), and that at all times after the issuance on or about the 7th day of April, 1884, of the Class A certificate hereinafter mentioned, said William Conard in all things complied with all the laws, rules, and regulations governing defendant, and remained-a member in good standing in defendant association, and in each of said classes, and entitled to all its and their rights, privileges, and benefits.</p> <p>Third. That on or about the 7th day of April, 1884, for the purpose of securing the payment to these plaintiffs of the sum of three thousand dollars ($3,000) upon his death, said William Conard surrendered to defendant the certificates in the first and second classes aforesaid, and received^ from defendant in exchange therefor, for the benefit of these plaintiffs, a certificate in a class called “Class' A” by defendant, issued to him for the benefit of these plaintiffs, in words and manner following:</p> <p>“Southern Tier Masonic Relief Association.</p> <p>“Elmira New York</p> <p>“No. 332 Amount $3000.</p> <p>“This is to certify that Brother William Conard, of Burlington, New Jersey, is a member of the Southern Tier Masonic Relief Association of the State of New York, and is entitled to all its rights, privileges and benefits and subject to the laws, rules and regulations governing said Association.</p> <p>“In favor of Julia A. Conard (wife) or children, $2000., George Powell Conard (eldest child) $1000.</p> <p>“In. Testimony Whereof the President and Secretary have hereunto set their hands and affixed the seal of the Association at Elmira, N. Y., this 7th day of April, A. D. 1884.</p> <p>“H. B. Berry, C. N. Shipman,</p> <p>“Secretary. President.</p> <p>“[Seal.]”</p> <p>“Class A."</p> <p>Fourth. That these plaintiffs are the persons in said certificate named after the words “in favor of," and are respectively the son and wife of said William Conard. That the motive and purpose of taking out said certificate was that said William Conard desired to provide financial assistance for his said wife upon the occasion of his death, and further to secure to plaintiff George P. Conard the repayment of considerable sums of money loaned by said George P. Conard to said William Conard for the necessary support and maintenance of said William Conard and said Julia A. Conard, and thereafter promised to be loaned and actually loaned by plaintiff George P. Conard, which sums so loaned amount to much more than three thousand doL lars. That for many years plaintiff George P. Conard has advanced to said William Conard all the moneys paid by him to defendant for premiums as herein set forth.</p> <p>Fifth. That at all times after the issuance of the said certificate in paragraph third, hereinabove set forth, until and including the 23d day of November, 1903, the date of his death, said William Conard in all things complied, for the benefit of these plaintiffs, with all the laws, rules, and regulations governing defendant, Southern Tier Masonic Relief Association, and remained a member of good standing in said association, and entitled to all its rights, privileges, and benefits.</p> <p>Sixth. That one of the rights, privileges, and benefits promised by defendant to said William Conard for the benefit of these plaintiffs was that defendant would, upon the death of said William Conard, in good standing in defendant association, pay to these plaintiffs, designated in said certificate as beneficiaries, the sum of money therein mentioned, to wit, the sum of three thousand dollars ($3,000), provided there should at the time of said death be in the treasury of defendant sufficient moneys applicable to pay the said sum in full under by-laws which should or might be in force at the time of such death, and that, if sufficient moneys should not be so applicable under such by-laws, that then said company would pay to these plaintiffs such proportion of said sum named as might be applicable under such by-laws so to be in force at the time of such death.</p> <p>Seventh. That on the 23d day of November, 1903, the following were the by-laws of defendant then in force with reference to the sums of money payable to the persons named as beneficiaries in such certificates, and with reference to the sums of money payable to these plaintiffs, to wit:</p> <p>“Article IV. Death Claims.</p> <p>“Sec. 35. Upon the death of any member of this association the sum to be paid to his representatives ’as designated upon the books of this association, shall be as follows: At the expiration of each two months all moneys received from members for fees and assessments during that time (after deducting the necessary running expenses of the association) shall- be divided pro rata per thousand dollars of insurance held among the beneficiaries of those who have died during that period, which sum so divided shall constitute the entire amount due upon any certificate thus terminated by the death of such member. Provided: That no beneficiary shall receive a larger amount than is named in the certificate for which he or she is entitled to receive pay. The board of directors may order the payment of one or more death claims from the surplus fund, whenever in their judgment said fund will warrant it.”</p> <p>And that said by-laws were duly enacted in or about the month of January, 1892.</p> <p>Eighth. That on the 23d day of November, 1903, said William Conard departed this life, a member of defendant association, and in all things in good standing therein, and that thereafter proofs of his death were duly presented to defendant, in all things as required by the by-laws thereof, and by defendant duly accepted.</p> <p>Ninth. That the amount of moneys received by defendant from members for fees and assessments during the two months including the 23d day of November, 1903, is four thousand seven hundred and seventy-eight bs/100 dollars ($4,778.53); that the amount of necessary running expenses of the association during said period was one thousand six hundred and two ss/100 dollars ($1,602.68); that the amount of insurance held by members of the defendant dying during said period was eleven thousand dollars ($11,000).</p> <p>Tenth. That the amount due plaintiffs from defendant on their said certificate under said by-laws is the sum of eight hundred and sixty-six is/ioo dollars ($866.13).</p> <p>Eleventh. That due demand has been made by plaintiffs upon defendant for the payment of the sum of eight hundred and sixty-six is/100 dollars ($866.13), and that the same has been refused.</p> <p>Twelfth. That defendant has paid these plaintiffs no sum whatever on account of said certificate or otherwise.</p> <p>Fob a Second Cause of Action.</p> <p>For a second cause of action, plaintiffs, further complaining of the defendant, repeating each and every the allegations hereinbefore contained, and making the same part of this second cause of action, further allege, on information and belief, as follows:</p> <p>Thirteenth. That in the year 1892, for the express protection of holders of certificates in corporations engaged in the business of life insurance upon the co-operative or assessment (nonfraternal) plan, and of the beneficiaries named in such certificates, and in order that the holders of such certificates for the benefit of the beneficiaries therein named, might know whether their certificates would be worth their maximum face value to their beneficiaries on their death, and, further, whether such corporations were paying their certificates in full at their maximum face value or not, the Legislature of the State of New York, with the approval of the Governor of the state of New York, in chapter. 690 of the laws of said year, at section 210, referring to such corporations, duly enacted (providing that the same should take effect on the first day of October, 1892), as follows, to wit: “Each notice of assessment, premium or periodical call made by any such corporation, association or society upon its members or any of them, shall truly state the cause and purpose of the same, and if the amount paid on the last death claim has not been paid in full at its maximum face value, the name of the deceased member, and the maximum face value of the certificate or policy and the reason why not paid in full.”</p> <p>Fourteenth. That the defendant thereupon impliedly agreed with said William Conard, for the benefit of these plaintiffs, that defendant would duly observe the provisions of said statute.</p> <p>Fifteenth. That since the 1st day of October, 1892, a large number of members of this defendant, holding certificates thereof issued prior to the 1st day of October, 1892, died in good standing in said company, and that defendant has paid a large number of mortuary claims to the beneficiaries named in said certificates, but that in no such case has defendant at any time from the 1st day of January, 1890, to the present time, paid, or under its by-laws been able to pay, any of said death claims in full at the maximum face value of the certificates on which the same accrued, but, on the contrary, has compromised each and every of said claims at figures far below the maximum face value of the certificates on which said claims accrued, and all that defendant is able to pay plaintiffs on their said certificate is, under the said by-laws, the sum of eight hundred sixty-six and 18Aoo dollars ($866.13).</p> <p>Sixteenth. That since the 1st day of October, 1892, defendant has each and every month issued to its members, including said William Conard, monthly notices of assessment and periodical calls, in each and every one of which defendant has failed to state in said notices the fact that it had not paid death claims accruing immediately prior thereto in full at their maximum face value, although such was continually the case.</p> <p>Seventeenth. That, as a consequence of the failure of defendant to keep its said agreement, said William Conard, during all of his life, remained in ignorance of the fact that defendant was not paying in full at their maximum face value death claims accruing on the certificates issued by defendant to its members, and of the fact that certificates issued by defendant, including his own, were not worth their maximum face value, and believed that said company was able to and actually in the habit of paying its death claims in full at their maximum face values, and that certificates issued by defendant, including his own, were worth their maximum face value.</p> <p>Eighteenth. That the amount of the moneys so paid by said William Conard for the benefit of these plaintiffs to defendant for assessments or periodical calls since the 1st day of October, 1892, is one thousand and thirty 20A oo dollars ($1,030.20), paid in monthly payments of seven 2®Aoo dollars ($7.20) per month, except in occasional instances where the same were doubled, and that the total amount paid by said William Conard to defendant for like benefit from April 7, 1884, to November 23, 1904, is one thousand nine hundred and forty *«Aoo dollars ($1,940.46).</p> <p>Nineteenth. That by reason of the failure of defendant to perform its sajd agreement made with said William Conard for the benefit of these plaintiffs, and of the failure of defendant to observe the terms of said statute, and by reason of the resulting ignorance of said William Conard of the things in paragraph fifteenth hereinabove set forth, and of the fact that defendant is unable, under its by-laws, to pay said certificate of William Conard in full at its maximum face value, these plaintiffs have been damaged in the sum of three thousand dollars ($3,000) less the sum of eight hundred and sixty-six 18Aoo dollars ($866.13), to wit, in the sum of two thousand one hundred and thirty-three 8Vioo dollars ($2,133.87).</p> <p>Fob a Thibd Cause of Action.</p> <p>For a third cause of action, plaintiffs, further complaining of the defendant, repeating each and every the allegations hereinbefore contained, and making the same part of this third cause of action, further allege, on information and belief, as follows:</p> <p>Twentieth. That in or about the month of January, in the year 1890, defendant, through heavy mortalities of its members and certificate holders, and through business misfortunes, became so financially involved, and thereafter at all times hereinafter mentioned so remained, that it then became, and at all times hereinafter mentioned remained, and now is, unable to pay its certificates issued prior to the 1st day of October, 1892, in full, at their maximum face value, under by-laws then or at any time since or now in force, and that since the 1st day of January, 1890, defendant has compromised at sums far below their face value death claims on all certificates issued prior to October 1, 1892, of which there have been a very large number, and that since the month of January, 1890, certificates issued by defendant, including that issued to said William' Oonard, have never at any time been worth their full face value.</p> <p>Twenty-First. That by reason of the foregoing facts, and later by reason of section 210 of chapter 690, page 2014, of the Laws of 1892, it became in January, 1890, and thereafter continued to be, the duty of the defendant to apprise said William Oonard that said company was not able to and as a matter of fact was not paying its certificates in full at their maximum face value, and that his said certificate was not worth its maximum face value.</p> <p>• Twenty-Second. That for the purpose of deceiving said William Oonard, and fraudulently leading him to believe that defendant company was in sound financial condition, and was actually able to and in the practice of paying its certificates in full at their maximum face value, and that said certificates, including the one herein sued on, were worth their maximum face value, and of inducing him to continue his membership in defendant association, and to continue paying into the company all assessments or periodical calls as the same should from time to time thereafter be made and levied, defendant wrongfully, unlawfully, and fraudulently concealed and suppressed from said William Oonard the fact that it was not able to and as a matter of fact was not paying said certificates in full at their maximum face value, and that the same, including his own, were not worth their maximum face value.</p> <p>Twenty-Third. That for like purposes defendant caused its officers, agents,1 attorneys in fact, and servants from time to time to issue to the public and to said William Oonard, and said officers, agents, attorneys in fact, and servants did from time to time issue to the public and said William Oonard, fraudulent, false, and misleading representations, printed both on its notices of assessment and of periodical calls and otherwise, designed to induce said William Oonard to believe that defendant association was in a flourishing financial condition, and that defendant.was at all said times capable of and actually in the habit and practice of paying its certificates in full at their maximum face value, and that certificates issued by said company, including that issued to said William Oonard, were worth their maximum face value.</p> <p>For a bill of particulars of said representations, plaintiffs allege and expect to prove on the trial of this action representations as follows:</p> <p>On October 10, 1892, defendant caused to be issued to its members and to said William Oonard a circular letter concerning its business, signed by E. O. Beers, its then secretary, in which letter the following words appear:</p> <p>“We have the pleasure and satisfaction of informing you that all claims that are reported to October 1st are provided for and will soon be settled.”</p> <p>In the year 1892, defendant caused to be issued to its members and to said William Oonard a printed circular, in its own name and concerning its business, in which circular the following words referring to itself and its business appear:</p> <p>“It provides the most absolute and stable indemnity at the lowest possible cost consistent with the greatest security.</p> <p>************</p> <p>“Our association can point with pride to its benevolent work and ‘fulfilled promises’ in the past, and on this record we can conscientiously recommend and urge our brethren of the masonic fraternity to join us and share in the benefits offered.</p> <p>“There are hundreds of people tp-day throughout .the country and especially in New York State, who bless the name of the Southern Tier Masonic Relief Association for assistance rendered them in the time of deepest trouble and the darkest hour of their lives when the breadwinner was cut down and the light in the loving home was darkened.</p> <p>************</p> <p>“Claims promptly adjusted and paid without litigation.</p> <p>************</p> <p>“Its business is conducted under the supervision of the insurance department of the State of New York.</p> <p>************</p> <p>“It is plain practical insurance at cost.”</p> <p>On October 10, 1893, defendant caused to be issued to its members and to said William Conard a notice of assessment No. 136, signed by E. O. Beers, its secretary, on the back of which it caused to be printed these words:</p> <p>“Will you not assist us in securing new members of the Southern Tier Masonic Relief Association? The General Agent and his sub-agents are hard at work with results most gratifying. However, you can assist in the good work. Remember that an increase in membership means a reduction in the amount of your assessments.”</p> <p>On the 10th day of November, 1893, defendant caused to be issued to its members and to said William Conard a notice of assessment No. 137, signed by E. O. Beers, its secretary, on the back of which it caused to be printed the same words as immediately above quoted.</p> <p>On the 9th day of December, 1893, defendant caused to be issued to its members and to said William Conard a notice of assessment No. 138, signed by E. O. Beers, its secretary, on the back of which it caused to be printed the words immediately hereinabove quoted.</p> <p>On the 10th day of September, 1894, defendant caused to be issued to its members and to said William Conard a notice of assessment No. 147, signed by E. O. Beers, its secretary, on the face of which it caused the following words to be printed:</p> <p>“During the month of August, not a death was reported and in fact up to the time of this assessment going to press none have been received. We congratulate the membership upon this showing and suggest that in view of this fact you might be able to secure some new members for us. The money realized from this assessment will be reserved for future claims.”</p> <p>In the year 1895 defendant caused to be issued to its members and to said William Conard a printed circular in its own name, concerning itself and its business, in which the following words appear, referring to itself and its business:</p> <p>“It provides the most absolute and stable indemnity at the lowest possible cost consistent with the greatest security.</p> <p>*****,*******</p> <p>“At the beginning of the present year not a single death claim unpaid and not a dollar of indebtedness of any character. * * * [Words about the “breadwinner" and the “dark hour,” etc., identical with those hereinabove set forth on those subjects, also here appear.]</p> <p>************</p> <p>“Claims promptly adjusted and paid without litigation.</p> <p>* * * * * * * * * • * * *</p> <p>“The Association closed last year without a dollar of indebtedness. Even though you are not a Mason the Association has kindly offered you the same benefits enjoyed by them.</p> <p>************</p> <p>“Does not the Southern Tier Masonic Relief Association offer you advantages over any and all others known to you? These and others are questions you should ask yourself.</p> <p>*t** * * * * * * * * *</p> <p>“All questions cheerfully answered. Information given and blanks furnished on application to Secretary or General Agent.</p> <p>************</p> <p>“It furnishes insurance at the exact cost upon the actual mortality instead of upon assumed death rate.”</p> <p>On February 9, 1895, defendant caused to be issued to its members and to said William Conard, notice of assessment No. 152, signed by E. O. Beers, its secretary, on the back of which it caused to be printed the following words:</p> <p>“One member wrote that the literature was very attractive but he was afraid he could not get many applications because there were so many other associations. He did not stop to think that it is so in every other line of business; but that our association, with our low assessment rate, our promptness in paying claims under our low ratio of expenses is the best of them all ********** **</p> <p>“But do you take pains to let your friends know what a grand institution we have?”</p> <p>On the 9th day of March, 1895, defendant caused to be issued to its members and to said William Conard notice of assessment No. 1§3, signed by E. O. Beers, its secretary, on the back of which it caused to be printed these words:</p> <p>“The Association feels proud of the fact that it has been granted a license to do business in the State of Pennsylvania. When a State feels that it cannot get along without us, there is every reason why we should feel gratified. * * *”</p> <p>Likewise on the back of said notice referring to the payment in full of a death claim accrued since the enactment of chapter 610 of the Laws of 1892, requiring co-operative or assessment insurance companies to pay in full certificates issued after the 1st day of October, defendant caused these words to be printed, without, however, stating that the certificate was issued subsequent to. the enactment of said requirement:</p> <p>“I am in receipt of draft No. 40,482, on the Importers and Traders’ National Bank of New York, for $2000, being payment in full of Policy No. 416, for $2000 on the life of my late father Rufus A. Packard. Permit me to thank you for your kindness and promptness in paying this claim. I understand that under your by-laws the claim is not due until April 24th, 1895.</p> <p>“Very truly yours, William Gr. Packard.”</p> <p>On the 10th day of April, 1895, defendant caused to be issued to its members and to said William Conard notice of assessment No. 154, signed by E. O. Beers, its secretary, on the back of which defendant caused to be printed these words:</p> <p>“He wrote a letter'congratulating the officers on the success of the asso-' eiation,” etc.</p> <p>On the back of said notice defendant likewise caused to be printed the following words, referring to the payment in full of claims on two certificates issued subsequent to the enactment of the insurance law in 1892, to wit:</p> <p>“On April 2nd the Association paid the heirs of L. C. Foster Two thousand dollars, and April 4th the heirs of David E. Bedell Two thousand dollars. These claims were not due until May 27th and June 5th respectively. The fact that the Association is able to pay its claims two months before due is a good thing to tell your friends.”</p> <p>On the 10th day of June, 1895, defendant caused to be issued to its members and said William Conard, signed by E. O. Beers, its secretary, notice of assessment No. 156, on the back of which it caused to be printed these words:</p> <p>“Our ¿ssessments are low and we pay our claims long before they are due. These are good things to tell your friends."</p> <p>On the 9th day of November, 1895, defendant caused to be issued to its members and to said William Conard, signed by E. O. Beers, its secretary, notice of assessment No. 161, on the back of which it caused to be printed' letters from the beneficiaries of the certificates issued to Peter Carl and to Edward Mack for $2,000 and $1,000, respectively, which letters thank the company for payments in full of said sums, and which notice failed to state —what was the fact—that these certificates were issued subsequent to the enactment of the insurance law of the state of New York.</p> <p>On the 10th day of February, 1896, defendant caused to be issued to its members and to said William Gonard, signed by E. O. Beers, its secretary, notice of assessment No. 164, on the back of which it caused to be printed these words:</p> <p>“Provides insurance at actual cost.</p> <p>************</p> <p>“Claims promptly adjusted and paid without litigation.</p> <p>************</p> <p>“Its bpoks are open to inspection and examination and members are invited to examine and investigate for themselves.”</p> <p>On the 10th day of April, 1897, defendant caused to be issued to its members and to said William Gonard, signed by J. Maxwell Beers, its secretary, notice of assessment No. 178, on the back of which it caused to be printed these words, referring to itself:</p> <p>“It is conceded by those who have given it an unprejudiced «examination to be the true plan of protection and thoroughly adapted to the circumstances of the people. It combines all the advantages and avoids all the defects and inconveniences of the level premium and co-operative systems, between which it occupies a middle ground. It furnishes insurance at the exact cost upon the actual mortality instead of upon assumed death rate.”</p> <p>On the 10th day of May, 1897, defendant caused to be issued to its members and to said William Gonard, signed by J. Maxwell Beers, its secretary, notice of assessment No. 179, on the back of which it caused to be printed these words, referring to itself:</p> <p>“For instance this Association is one of the very few that has not, during the past year or two, called on its members for extra premiums.”</p> <p>On the 10th day of July, 1897, defendant caused to be issued to its members and to said William Gonard, signed by J. Maxwell Beers, its secretary, notice of assessment No. 181, on the back of which it caused to be printed these words :</p> <p>“The payment of a policy in the Southern Tier Masonic Relief Association of Elmira, N. Y., is as sure as the redemption of a Government bond.”</p> <p>In the month of January, 1898, defendant caused to be issued to its members and to said William Gonard a printed report of the business of the defendant for the year 1897, in which it caused to be printed the report of J. Monroe Shoemaker, its then president, from which the following words are quoted:</p> <p>“We claim that the association has a record for fair dealing, which should be a sure guarantee that its claims will be paid without hesitation. This is far better than to run after strange gods in the insurance world, which are often only a delusion and a snare.”</p> <p>On the 10th day of September, 1898, in connection with a call for an extra premium, No. 195A, defendant caused to be issued to its members and to said William Gonard a printed card on which the following words appear:</p> <p>“To conform with the Insurance Laws of the State of New York requiring that a reserve premium be kept on hand by all associations doing business under authority of them, an extra premium (195A) is issued in connection with premium 195, dated September 10th.”</p> <p>On the 10th day of May, 1902, defendant caused to be issued to its members and to said William Gonard, signed by J. Maxwell Beers, its secretary, a notice of a double assessment Nos. 239 and 239A, on the face of which it caused to be printed these words:</p> <p>“An extra premium—239A—is issued in connection with this premium. It is necessitated by the excessively heavy death rate of the winter months.”</p> <p>On the 10th day of November, 1902, defendant caused to be issued to its members and to said William Gonard, signed by J. Maxwell Beers, its secretary, notice of double assessment Nos. 245 and 245A, on the face of which it caused to be printed these words:</p> <p>“This is a double premium. It is necessitated by a excessively heavy death rate.”</p> <p>On the 10th day of July, 1903, defendant caused to be issued to its members and to said William Conard, signed by J. Maxwell Beers, its secretary, notice of double assessment Nos. 253 and 253A, on the face of which it caused to be printed these words:</p> <p>“This is a double premium. It is necessitated by a heavy death rate.”</p> <p>On each and every monthly notice' of assessment issued by defendant since January, 1890, to wit, every month, defendant caused to be printed opposite the names of members who had died since the last notice a column of figures headed with the words “Benefit Certificate," under which, and opposite the said names, defendant caused to be inserted the full maximum face value of the certificate, so as to induce the belief that the defendant was paying the full maximum face value thereof.</p> <p>Twenty-Fourth. That each and every the aforesaid printed statements, in so far as they tended to induce the belief that defendant was in a flourishing financial condition, and that defendant was at all said times capable of, and actually in the habit and practice of, paying its certificates in frill at their maximum face value, and that certificates issued by defendant were worth their maximum face value, and the impressions that all of the foregoing words were intended to and did convey were false and untrue in fact, and deliberately misleading, and so known to be to the defendant and its officers, agents, attorneys in fact, and servants, and in particular so known to E. O. Beers and to J. Maxwell Beers.</p> <p>Twenty-Fifth. That said William Conard at all times, to the day of his death, believed that said statements, each and every one, were true in every respect, and was deceived thereby and interpreted them to mean, and all his life believed, that defendant was paying all claims on its death certificates whensoever issued, in full, at their maximum face value, and that all certificates issued by said company, including his own, were worth their maximum face value, and, so believing, relied on said statements and to the' day of his death remained a member of defendant association in good standing, and paid all assessments as and when called upon by defendant, of which there were a large number, as more fully appears in paragraph eighteenth hereinabove.</p> <p>Twenty-Sixth. That at no time since the 1st day of January, 1890, has the certificate aforesaid issued to William Conard been worth its maximum face value, and is not now, and that all the money that is in the treasury of defendant that is applicable to the payment thereof is eight hundred and sixty-six i-Vioo dollars ($866.13)/and that said certificate is only worth the sum of eight hundred and sixty-six is/ioo dollars ($866.13), and that had said representations been true, said certificate would have been worth the sum of three thousand dollars ($3,000) to these plaintiffs.</p> <p>Twenty-Seventh. That, by reason of the foregoing wrongful and fraudulent concealments and misrepresentations, these plaintiffs have been damaged in the sum of two thousand one hundred and thirty-three 87Aoo dollars ($2,-133.87).</p> <p>Wherefore plaintiffs demand judgment against the defendant as follows: On the first cause of action, for the sum of eight hundred and sixty-six lsAoo dollars ($866.13), with interest from the 23d day of November, 1903, and on the second and third causes of action for the sum of two thousand one hundred and thirty-three 87A_oo dollars ($2,133.87)—in all, for the sum of three thousand dollars ($3,000), with interest from the 23d day of November, 1903—together with their costs and disbursements M this action.</p> <p>The following is the opinion of the lower court, per Sewell, J.:</p> <p>The issues of law raised by the demurrer of the defendant, Southern Tier Masonic Belief Association, to the complaint herein, coming on to be heard by the court at a Special Term commencing September 19, 1904, at Cortland, N. Y., held by the undersigned, and after hearing Frederick Collin, Esq., of counsel for the defendant, in support of the demurrer, and Yorke Allen, Esq.; of counsel for plaintiffs in opposition, and due deliberation being had thereon, I decide and find as follows: '</p> <p>(1) It appears, upon the face of the complaint that- causes of action have been improperly united herein upon the grounds that the alleged second and third causes of action set forth in said complaint do not affect or exist in favor of the plaintiffs. The plaintiffs have no intérest in or rights under the said alleged second and third causes of action, and also that a cause of action upon the certificate of membership of William Conard, the by-laws, etc., of the defendant, and causes of action in tort and for wrongful and illegal acts, are joined.</p> <p>(2) That defendant is entitled to an interlocutory judgment which shall adjudge that the demurrer is sustained, with costs to be adjusted by the clerk and included in said interlocutory judgment, and shall direct that in •case the plaintiffs do not within twenty days after service of a copy of such interlocutory judgment on their attorneys, with notice- of its entry,- file and serve an amended complaint, and pay said costs to defendant or defendant’s attorneys, then defendant may enter final judgment against the plaintiffs, sustaining the demurrer and dismissing the complaint, with costs.</p> <p>(3) I hereby direct judgment to be entered as aforesaid.</p>

<p>Claims Against Decedent—Seevices by Relative—Employment—Evidence.</p> <p>The inference that services rendered deceased, at times when she was sick, by her daughter-in-law, during the six years they lived in the same house, which terminated six months before her death, were not under a contract of employment, is indicated by, no claim being made therefor till after the provisions of her will were made known.</p> <p>Delia Rock died in the fall of 1901. Prior to that time, from 1895 until the spring of 1901, William Rock, her son, with his wife, Ella Rock, this claimant, lived upon the decedent’s farm. They occupied a part of the house, while the decedent occupied her own rooms. William Rock worked the farm on shares. The families lived separately; Delia Rock doing her own cooking and attending to her own part of the house, while William Rock and his wife cared for their part of the house. During this period, at different intervals, for about 20 weeks Delia Rock was sick, and received the care and attendance of her daughter-in-law, this claimant. After her death a claim was filed by this plaintiff for $498. In this claim there are four items: First,</p> <p>a claim for taking care of the deceased at her request, and'for work and labor performed at her request from April 20, 1895, to April 19, 1901, $468; second, for extra work during a sickness of nine weeks in 1897, at $1.50 per week, $13.50; third, for extra work during her sickness for six weeks in 1897, at $1.50 a week, $9; fourth, for extra work in 1898 for five weeks during her sickness, at $1.50 per week, $7.50. It will be noticed that the first claim is at the rate of $1.50 per week for the full time; the remaining claims are for additional services in times of sickness. The referee has found that at no time, except during the time of sickness, is the claimant entitled to compensation for services, and that for 20 weeks during the time of sickness she is entitled for services at the rate of $5 per week, and has directed judgment for the sum of $100, besides the disbursements of the reference. From the judgment entered upon this report of the referee, the defendant appealed.</p>

<p>Appeal from Special Term, New York County.</p> <p>Action by Jessie M. Jones against Charles L. Brinsmade. Prom an order awarding counsel fee and alimony, defendant appeals. Affirmed.</p>

' Action by Robert Maynicke against the Central Realty Bond & Trust Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed.

Application of Edward M. Grout, as comptroller of the city of New York, for a warrant for the arrest and committal to jail of Joseph Williams for his refusal to answer questions concerning a claim against the city of New York. From an order committing Williams to jail, he appeals. Reversed.

Action by Catherine Douglas against the New York Central & Hudson River Railroad Company. From a judgment in favor of defendant, and an order denying a motion for a new trial, plaintiff appeals. Affirmed.

<p>Appeal from Trial Term, Kings County.</p> <p>Action by Margaret A. Murphy against the Interurban Street Railway Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.</p>

<p>Municipal Court—Removal of Cause—Want of Jurisdiction—Remedy— Motion for Remand.</p> <p>Laws 1902, c. 580, p. 1490, § 3, provided for the removal of causes from the Municipal Court of the City of New York to the Supreme Court in certain cases. This provision was expressly repealed by Laws 1904, pp. 1429, 1430, c. 598, §§ 1, 4, which took effect June 1,1904. July 22,1904, a justice of the Municipal Court made an order on defendant’s motion removing an action to the Supreme Court. Held, that plaintiff’s remedy was to move the Supreme Court to remand the cause to the Municipal Court, and not to apply- to the Municipal Court to vacate the order of removal.</p>

<p>Appeal from Trial Term, New York County.</p> <p>Action by Henry Gilsey and others against Albert R. Keen and others. From a judgment on a verdict in favor of plaintiffs, defendants appeal. Affirmed.</p>

Joseph A. Haas, indicted under the name of Joseph A. Hayes alias Harry J. Clare, was convicted of burglary in the first degree, and appeals from the judgment of conviction, and from an order denying the motion for a new trial, and from an order denying a motion to remove the trial of the indictment. Reversed.

<p>Municipal Corporations—Streets—Injury to Cab Employés—Contributory Negligence—Questions fob Jury.</p> <p>In an action against a city for injuries to a street car conductor, who was thrown from the running board of his car by coming in contact with timbers used in shoring up a sewer trench in the street, whether the conductor was guilty of contributory negligence held, under the evidence, a question for the jury.</p> <p>Jenks, J., dissenting.</p>

Action by Mary Hanney against John Wren and others, as trustees of School District No. 5 of the town of Ossining, Westchester county. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Reversed.

<p>Guabanty—Ambiguity—Pabol Evidence.</p> <p>Plaintiff’s, who are stockbrokers, demanded more margin from a customer for whom they held certain shares of stock bought by them on her account. Defendant, who knew of the previous and existing relations of the brokers and their customer, subscribed a writing prepared by the plaintiffs, and delivered it to them, which, referring to the customer, recited that, in consideration of plaintiffs carrying her account without further margin from the customer, defendant would guaranty plaintiffs against any loss they might incur thereby, and would.respond to plaintiffs’ request for funds to cover any deficiency that might exist in her account with plaintiffs. Eeld, that the use of the word “account” made the writing ambiguous, and hence parol evidence was admissible, in an action by plaintiffs to enforce the guaranty, for the purpose of showing that the guaranty was limited to the specific stocks on which the demand for margin was made.</p> <p>[Ed. Note.—For cases in point, see vol. 20, Cent. Dig. Evidence, § 2129.]</p>

Action by Charles C. Osborn against Amzi L,. Barber. From an order denying a motion to set aside an order for the examination of a witness, defendant appeals. Reversed.

In the matter of the judicial settlement of the accounts of Gamaliel C. St. John as executor of Wallace C. Andrews, deceased. Emma H. Andrews made application to open her default, and for leave to appear and file objections to the account, which was denied, and she appeals. Reversed.

In the matter of the judicial settlement of the account of Gamaliel' C. St. John, as executor of Wallace C. Andrews, deceased. Edith Andrews Logan made application for leave to appear on the accounting, and from an order appointing a referee to hear and determine the question of her right to so appear she appeals. Reversed.

<p>Appeal from City Court of Yonkers.</p> <p>Abtion by Edward P. Davis against the Reflex Camera Company. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Reversed.</p>

<p>Deed as Mortgage—Secubity fob Future Advances—Evidence.</p> <p>Evidence in an action to foreclose a mortgage held sufficient to sustain a finding that a deed given as a mortgage was to secure future advances as well as a present indebtedness.</p>

Action by Lelia Moore Newman against Walter George Newman. From an order denying defendant’s motion for leave to modify a judgment of divorce against him, defendant appeals. Affirmed.

<p>Appeal from Special Term, Kings County.</p> <p>Action by the Brooklyn Heights Railroad Company against the Brooklyn City Railroad Company. From an order appointing a referee, defendant appeals. Affirmed.</p>

Exceptions from Trial Term, New York County. Actitin by John E. Hogan against Herman Strauss and another. There was a verdict for plaintiff, and defendants- move for a new trial on exceptions taken at the trial, and ordered to be heard in the first instance at the Appellate Division. New trial.

Application by Louisa Schlotterer, an infant, for an order to examine the Brooklyn & New York Ferry Company and another. From an order granting an examination, the ferry companies appeal. Reversed.

Certiorari by the people, on the relation of James D. Coveney, against Robert Grier Monroe, as commissioner of the department of water supply, gas, and electricity, and others, to review proceedings for the removal of relator as an inspector of electrical conductors. Determination annulled.

<p>Appeal from Trial Term.</p> <p>Action by Robert A. Byrns against the United Telpherage Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

Action by Willett Hicks against Lorin J. Eggleston and others as the board of supervisors and Allah H. Hoffman as sheriff of Dutchess county. From a judgment in favor of plaintiff, overruling demurrer to complaint, defendants appeal. Affirmed.

Action by Ida L. McDonald against the Holbrook, Cabot & Daly Contracting Company. From a judgment for plaintiff and from an order denying its motion for a new trial, defendant appeals. Reversed.

Petition by the Brooklyn Union Elevated Railroad Company against James H. Hart for the condemnation of certain real estate. From an order confirming the report of commissioners awarding damages, defendant appeals. Reversed.

Prosecution against Margaret Carroll for the felonious abduction of an infant. From an order denying a motion for the appointment of a referee to take a deposition to be used on a motion to set aside the indictment against the defendant, she appeals. Motion to dismiss the appeal granted.

<p>Appeal from Judgment on Report of Referee.</p> <p>Action by Joseph G. Russell against William L. Hitchcock, as administrator of the goods, etc., of Catalina V. N. McNitt, deceased. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

Action by Anna C. Slingerland and others against Lewis F. Cor-, win and others. Appeal by plaintiffs from an order directing them to furnish a bill of particulars. Modified and affirmed.

<p>Paupers—Maintenance—Counties—Right to Reimbursement—Poor Law.</p> <p>Laws 1896, p. 137, c. 225, § 2, defines a poor person as one unable to maintain himself, and provides that such person shall be maintained by the town, city, county, or state according to the provisions of the chapter. Section 42, subd. 2, p. 150, provides that every poor person, except the state poor, who has not gained a settlement in any county in which he shall become poor, shall be supported by the superintendent of the poor at the expense of the county; and section 51, p. 154, provides that a poor person removed, brought, or enticed, or who shall of his own accord come or stray, from one city, town, or county into any other, shall be maintained by the county superintendent of the county where he may be, and that notice by the superintendent furnishing the support may be given to the overseers of the town or city from which he strayed, “if the town or city be liable for his support.” Held that, when a person becomes a “poor person” after he has left the town or county in which he has gained a settlement, he must be supported by the county in which he becomes a poor person, without right on the part of such county to reimbursement from the town or county from which he came, even though his settlement still remains there.</p> <p>William Shelp and family prior to May 13, 1901, had resided for more than a year, and thereby gained a settlement, in the town of Delaware, county of Sullivan. On that day he voluntarily moved himself and family into the town of Hancock, county of Delaware. While in such town of Delaware he supported his family continuously, and no relief was ever asked or furnished him or the family by that town. In the July following, application was made by his family to the overseer of the poor of the town of Hancock for relief; and on investigation, he finding them destitute, relief was furnished them, and the superintendent of the poor of Delaware county notified. The superintendent thereupon took charge of them, and thereafter furnished them necessary relief for some three or four months, amounting in all to $83.89. It seems to be conceded that during such time Shelp himself was confined in jail in Delaware county for some offense committed in July. As soon as the county superintendent took charge of the family, he served upon the overseer of the poor of the town of Delaware, Sullivan county, a notice to take charge of such family, as required by section 51 of the poor law (Laws 1896, p. 154, c. 225). Such overseer thereupon served upon the said superintendent a notice denying all liability for their support, as permitted by section 52 of such law. This action was thereupon brought against such town to recover the amount so expended by the superintendent of Delaware county. It was tried and submitted to the court without a jury. A decision was rendered in favor of the ■ defendant, dismissing the plaintiff’s complaint, with costs, and from the judgment entered thereon this appeal is taken.</p>

Proceeding in the Court of Claims by Benjamin E. Hall against the state of New York. From a judgment for claimant for less than his demand, he .appeals. Affirmed.

<p>Action by William Sutherland, as administrator with the will annexed of Clara Loraine Richardson, deceased, against St. Lawrence county. On motion for reargument. Motion denied.</p>

<p>1. Justices—Appeal—Reversal—Costs—Stay.</p> <p>Code Civ. Proc. § 779, provides that, when costs are not paid within the time fixed by an order, all proceedings on the part of the party required to pay the same shall be stayed until payment thereof. Reid that, where a justice’s judgment for plaintiff was reversed on appeal, and formal judgment entered fixing the costs on reversal, and permitting execution to issue for their collection, but the costs were not imposed as a condition to the granting of a new trial, the determination of the justice that proceedings were stayed because of plaintiff’s failure to pay costs of reversal was erroneous.</p> <p>2. Same—Statutes—Error in Pact.</p> <p>Code Civ. Proc. § 3066, provides that on an appeal from a justice, if the judgment is reversed for an error in fact not affecting the merits, the costs of the appeal are in the discretion of the Appellate Court, but an error of law requiring a reversal entitles the successful party to costs. Section 779 provides that, when costs are not paid within the time fixed, all proceedings on the part of the party required to pay the same are stayed until payment thereof. Reid, that where, on appeal by defendant from a justice’s judgment, a reversal was had, and a new trial directed before another justice, the erroneous determination of such justice that plaintiff was stayed until payment of the costs of reversal was not an “error in fact,” within section 3066, but an error of law, and on appeal by plaintiff, he being successful, he was entitled to costs as of right.</p>

. Action ty Albert E. Woolf, as trustee, etc., against Reon Barnes and the Chemical Sz: Electrical Company, impleaded, etc. From an order denying plaintiff’s motion for a temporary injunction, he appeals. Reversed.

<p>1. Mortgages—Foreclosure—Assignment—Payment by Third Party—Discontinuance of Action.</p> <p>In an action to foreclose a mortgage, a defendant who is tenant in common of the mortgaged premises is entitled to have the mortgage assigned to one who, for his benefit, pays the mortgagee the full amount due on the mortgage and the costs of the action, and to an order discontinuing the same.</p> <p>2. Same—Volunteer—Subrogation.</p> <p>One who, at the request and for the benefit of a tenant in common of mortgaged premises, tenders to the mortgagee the full amount due under the mortgage, and requests an assignment thereof, at the same time stating that he is acting at the tenant’s request, is not a mere volunteer, to whom the right of subrogation should be denied.</p> <p>[Ed. Note.—For cases in point, see vol. 44, Cent. Dig. Subrogation, §§ 61-67.]</p> <p>8. Same—Attitude of Other Defendants.</p> <p>Where, in a foreclosure action, the full amount due under the mortgage is tendered to the mortgagee, and an assignment thereof requested by one acting for the benefit of a defendant tenant in common of the mortgaged premises, the fact that the other defendants do not object to the foreclosure does not preclude the court from ordering an assignment of the mortgage and the discontinuance of the action.</p> <p>•4. Same—Notice of Motion.</p> <p>In such case plaintiff cannot object that the other defendants did not receive notice of the motion for such order.</p> <p>5. Same—Appeal—Objections.</p> <p>Defendants to a foreclosure action, who do not seek to appear or to be heard on appeal are not objectors before the appellate court.</p> <p>6. Same—Defective Tender—Refusal.</p> <p>The question of defective tender to a mortgagee is not available where there is a positive and unqualified refusal to accept.</p>

Certiorari by the people, on the relation of the Spencerian Pen Company, against Otto Kelsey, as Comptroller of the state of New York, to review a determination of the latter as to a franchise tax to be paid by relator. Determination confirmed in part, and reversed in part.

Lawrence County. In the matter of the application of Thomas Rhoda, a creditor, for the revocation of letters of administration granted in the estate of Ricuci Ciotto, deceased. Application denied, and Rhoda appeals. Affirmed.

Action by Morris Ullman and another against Albert L. Cameron, as trustee and individually, and others. From an interlocutory judgment overruling the demurrer of the defendant Cameron to plaintiffs’ complaint, he appeals. Affirmed.

<p>Master and Servant—Employers’ Liability Act—Assumption of Risk-Contributory Negligence—Questions op Pact—Verdict against Evidence.</p> <p>A servant who, at the suggestion of the foreman, thrust his hand into a wooden box, in which a screw with sharp blades was revolving rapidly, in order to loosen cement in a chute leading into the box, knowing that the cement was liable to fall in such quantities as to drive his arm against the screw, would be deemed to have assumed the risk, and to have been guilty of contributory negligence, as a matter of law, except for the provisions of the employers’ liability act (Laws 1902, p. 1750, c. 600, § 3) declaring that the fact that an employé continues in the service after discovering the risk shall not, as a matter of law, be considered as an assumption of risk or as contributory negligence, but the questions of assumption of risk and contributory negligence shall' be deemed questions of fact, subject to the power of the court to set aside a verdict contrary to the .evidence; and while, in view of these provisions, the question of the servant’s assumption of risk and contributory negligence are questions of fact, yet a verdict in .favor of the ,servant on those questions is clearly against the weight of the evidence, and subject to vacation by the court.</p> <p>The facts of this case present the following situation: In the course of making and handling the cement at the defendant’s works, the ground material was stored in a large bin situated on one floor, from which it passed by gravity through a chute leading through the floor into the cellar, and into a long conveyor, in which was revolving a screw or worm, by which it was carried or moved along into some other part of the works. The cement at times became jammed and stuck fast in the bin, and would not pass through. the chute by gravity alone down into the conveyor containing .-the screw. On such occasions it was started down by jarring the chute, and occasionally, when that would not start it,.by taking a pole and running it up from below through the chute into the bin, and so loosening the cement therein. On the day in question the cement had become hardened and would not flow, and the jarring did not seem to start it. Plaintiff and defendant’s foreman were ■both there, trying to start it, and the foreman directed that a pole be gotten to thrust up from below into the bin. At this time the conveyor, which was a long wooden box, about 17 inches or 18 inches square, was open on the top, and the screw or worm, which was of iron, with sharp-edged blades, was revolving rapidly. The space on either side of such conveyor was occupied by bags of cement piled there, leaving only about 12 inches to 18 inches on either side to stand or work'in; and therefore only a short stick, about three feet long, could be used to thrust up the chute. The foreman handed such a stick to the plaintiff, and told him to use that. In order to reach the cement up in the bin with so short a stick, it was necessary to extend the arm up into the spout which brought it directly over the revolving worm; and manifestly, if the cement loosened and fell from above onto' the arm, it would drive it down upon the worm, and cut and injure it. The plaintiff thrust the stick into the cement twice. On the second thrust, the cement fell, driving his hand and arm down .onto the worm, and so severely injured it that amputation became necessary. The action is brought to recover damages, therefor. It further appeared that the plaintiff had worked at that business for upwards of three years, and was familiar with it. The trial judge sent the case to the jury, which found a verdict for the plaintiff in the amount of $3,000. He thereafter, on a motion by. defendant, set such!verdict aside and granted a new trial; and from such order the plaintiff brings this appeal.</p>

Action by Maurice Kiley against the Lee Canning Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

<p>Appeal from Tompkins County Court.</p> <p>Action by John Donovan against Salem Twist and others. From a judgment dismissing the complaint, plaintiff appeals. Reversed.</p>

<p>Appeal from Trial Term, Washington County.</p> <p>Action by Andrew Barber against the Hudson River Telephone Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.</p>

Action by Robert C. Pruyn against Charles C. Black, as receiver of the Ecuador Company, and others. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

Lawrence against Wilfred P. Hogue. From a judgment of the County Court reversing a justice’s judgment in favor of defendant for less than the relief demanded, and granting a new trial, plaintiff appeals. Reversed.

<p>1. Marriage—Impediments—Prior Existing Marriage—Judgment in Divorce—Effect.</p> <p>Under Code Civ. Proc. § 1774, providing that no final judgment of divorce shall be entered until after the expiration of three months after the filing of the decision of the court or report of the referee, an interlocutory judgment of divorce is ineffectual to dissolve the marriage relation, and a marriage entered into in a foreign state between a party to the divorce suit and a" third person after the entry of the interlocutory judgment, and prior to the entry of final judgment, is absolutely void, under the domestic, relations law (Laws 1896, p. 216, c. 2172, § 3), declaring a marriage void if contracted by a person whose husband or wife by a former marriage is living, unless such former marriage has been annulled or has been dissolved.</p> <p>2. Same—Void Marriages—Annulment.</p> <p>No judicial sentence of nullity is necessary in order to free a party to a void marriage, but a decree of annulment is provided for in such case by Code Civ. Proc. § 1742.</p> <p>3. Same—Ratification.</p> <p>While a voidable marriage may be ratified, a marriage which is a nullity because contracted while a prior existing marriage is in force is not the subject of ratification.</p> <p>[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Marriage, § 108.]</p> <p>4. Same—Common-Law Marriages—Statutory Prohibition.</p> <p>While Laws 1901, p. 933, c. 339, requiring a marriage to be solemnized by a clergyman or one of certain officers, or to be evidenced by a written contract of marriage, signed and acknowledged by the parties, was in force, a marriage void when entered into, because of the existence of a prior undissolved marriage, could not be validated by mere cohabitation after the dissolution of such prior marriage.</p> <p>6. Same—Annulment—Discretion of Court.</p> <p>Plaintiff was the co-respondent in a divorce action in which defendant’s wife procured a divorce from defendant. Immediately after the entry of an interlocutory judgment of divorce, plaintiff and defendant went into another state and were married, notwithstanding the amendment to Code Civ. Proc. § 1774, prohibiting the entry of final judgment of divorce until the expiration of three months after the decision of the court, which had just gone into effect, and of which plaintiff and defendant might have been ignorant. Plaintiff was at the time barely eighteen years old, and no children resulted from the marriage. Heldr that justice would be best subserved by annulling the marriage.</p>

Proceedings on the probating of a paper propounded as the last will and testament of Jane Davis, deceased. From a decree (92 N. Y. Supp. 968) admitting the paper to probate, Robert D. Chittenden, as administrator of the goods, chattels, and credits of deceased, appointed in Fresno' county, in the state of California, and Thomas M. Dungan, as administrator, etc., of deceased, appointed in Tulare county, Cal., appeal.- Affirmed.

<p>Appeal from Trial Court, Montgomery County.></p> <p>Action by John C. Warren against Edward S. Parkhurst and others. From a judgment overruling a demurrer to the complaint, defendants appeal. Affirmed.</p>

<p>Appeal from Trial Term, Broome County.</p> <p>Action by Cornelia W. Butler, as trustee for Cornelia Butler Lyon, and others, against the Supreme Council American Legion of Honor. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.</p>

<p>1. Public Officers—State Engineer—Surveys—Incidental Destruction of Property—Liability.</p> <p>Where the State Engineer and his assistants, acting under Laws 1902, p. 1125, c. 473, authorizing the State Engineer to make a survey of a county boundary line, entered on private property and cut down timber, they were not liable therefor, though the statute did not in terms authorize any entry on private property, or provide for any compensation to owners in case of such entry.</p> <p>2. Court of Claims—Application for Relief—Eminent Domain.</p> <p>Where the State Engineer and his assistants, in making a survey of a county boundary line, pursuant to Laws 1902, p. 1125, c. 473, entered on private property and cut down timber, though the act did not authorize any entry on private property or provide for any compensation to owners in case of such entry, the owner might present his claim against the state in the Court of Claims, under Code Civ. Proc. § 264, giving such court jurisdiction to hear and determine a private claim against the state.</p> <p>3. Same—Eminent Domain—Damages.</p> <p>The constitutional provision (article 1, § 7) requiring the compensation to be made to the owner of property taken for public uses to be ascertained by a jury, or by commissioners appointed by the court, does not apply where the state takes the property; but the state may take possession, go on with its work, and await the claim' of the owner for compensation.</p> <p>[Ed. Note.—For cases in point, see vol. 18, Cent. Dig. Eminent Domain, §§ 198, 199.]</p> <p>4. Injunction—Continuing Nuisance.</p> <p>Where defendant cut down timber and brush on plaintiff’s land, and left it there, if leaving it there was a nuisance, because of the danger of forest fires, it was not a continuing nuisance which could be restrained by injunction.</p>

In the matter of objections to the original certificate of nomination by the Social Democratic Party, so called, of candidates for presidential electors and for governor and other state officers, to be voted for at the election to be held on November 8,1904. Appeal by John S. McEwan from an order made at Special Term under Election Law, Laws 1896, c. 909, p. 922, § 56, dismissing his appeal from the decision of the Secretary of State. Affirmed.

<p>1. Druggists—Negligence in Filling.Prescription—Evidence.</p> <p>A prescription given by a physician to his patient called for “Elixir Pinus Comp, cum Heroin—ounces 4.” The druggist had a bottle of “Elixir Pinus Compositus” and a bottle of Heroin, and, on consulting a pamphlet issued by the maker of the Heroin and the Elixir Pinus Compositus, he found that such manufacturer also put up a compound known as “Elixir Pinus Compositus with Heroin,” and the formula in the pamphlet showed that the proportion of Heroin in the Elixir Pinus Compositus with Heroin was 1/24 of a grain per drachm, whereupon, in filling the prescription, he added 1/24 of a grain of Heroin to each drachm of Elixir Pinus Compositus. Held, that the pharmacist was not negligent 3n so compounding the prescription.</p> <p>2. Same—Poison—Judicial Notice.</p> <p>Judicial notice will be taken of the fact that one-tenth of a grain of morphine, taken every four hours, could not have a poisonous effect.</p>

Action by Henry P. C. Johnston against the Mutual Reserve Life Insurance Company. From a determination of the Appellate Term of the Supreme Court (90 N. Y. Supp. 539) affirming an order of the City Court (87 N. Y. Supp. 438), and from an order of that court granting an extra allowance, defendant appeals, pursuant to leave granted. Affirmed.

In the matter of the probate of the alleged last will and testament of Dan Small, deceased. From a decree of the surrogate refusing to probate the will, Adam Walrath, the executor named therein, appeals. Reversed.

<p>Suit by George B. Tompkins against Farrington H. Thompson and others to compel the delivery of a deed. Judgment for plaintiff.</p>

<p>Appeal from Special Term, Rensselaer County.</p> <p>Action by Edward A. Pattison and another against Bridget A. Hines. Appeal by plaintiffs from an order changing the place of trial. Affirmed.</p>

Suit by John Carroll for an injunction to restrain Edward J. Con-nor and others from maintaining a connection with and using plaintiff’s sewer. Judgment for plaintiff.

<p>Attobneys—Action fob Services—Employment. .</p> <p>In an action for plaintiffs’ services in probating the will of defendant’s husband, the defense being that they were rendered at request of B., whom defendant had engaged to collect a legacy for 5 per cent, thereof, which defendant claimed, and B. denied, was to cover the expense of probating such will—it appearing that plaintiffs were retained generally by B. at the time the .will was probated, and there being testimony that defendant had requested plaintiffs to probate the will—it was error to refuse, with the statement that it is a mere question of retainer, plaintiffs’ requested charge that, aside from the question of mere retainer, if defendant directed them to probate the will, they were entitled to recover.</p>

Suit by James R. Cullen to restrain Edward J. Bourke, individually and as acting captain, from a continual trespass on plaintiff’s premises. Motion for permanent injunction. Motion granted.

<p>Appeal from Special Term, Clinton County.</p> <p>Action by Alexander Boire against John McDowell. From a judgment for plaintiff affirming a judgment of a justice, defendant Epp 63-lSi Reversed</p>

Mandamus by the people, on the relation of the village of Kinderhcok, to compel the board of supervisors of Columbia county to apportion the tax on bank stock. From an order granting the writ, respondent appealed. Affirmed.

<p>Associations—Trustees—Elections—Contest—Summary Hearing—Affidavits.</p> <p>Where, in a proceeding to determine a contest of an election of a trustee of an association, as authorized by General Corporation Law, § 27 (Laws 1892, p. 1810, c. 687), the affidavits on which the case was submitted consisted largely of conclusions, and not facts, the proceeding should be sent to a referee to take the evidence of the witnesses on oral examination, and to report the same to the court, with his opinion.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Third District.</p> <p>Action by the American Label Company against William Kander. From a judgment in favor of plaintiff, defendant appeals. Reversed.</p>

<p>Street Railroads—Crossing Accident—Instructions.</p> <p>In an action for injuries to the driver of a vehicle in a collision with a street car at a crossing, an instruction that it was for plaintiff to determine the situation on seeing the approaching car, and, if he had the right of way when he was closest to the point of crossing, he had the right to proceed on the track, was erroneous, as withdrawing the question of plaintiff’s contributory negligence.</p>

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

<p>Appeal from Municipal Court, Borough of Manhattan, Eleventh District.</p> <p>Action by Moritz E. Ernst against Edward M. Wheatley. From a judgment dismissing the complaint,'plaintiff appeals. Reversed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Arthur S. Cox and another against Madison G. Hawke. From a judgment dismissing the complaint, plaintiffs appeal. Re•versed.</p>

<p>Appeal from City Court of New York, Trial Term.</p> <p>Action by Rosie Schnitzler against the Oriental Metal Bed Company. From a judgment for plaintiff, defendant appeals. Reversed.</p>

<p>Appeal from Municipal Court, Borough of Brooklyn, First District. Action by Louis Bernstein against Jacob Weinstein. From a judgment in favor of defendant, plaintiff appeals. Affirmed.</p>

In the matter of the petition of the Brooklyn Union Elevated Railroad Company relative to acquiring title to real estate, etc., on Crescent street, etc., parcel 65; premises, 156 Myrtle avenue. Appeal of Louis Levine.

<p>Action by Durfee C. Chase against Katharine E. Drake.</p>

<p>Action by Durfee C. Chase against Katharine E. Drake.</p>

<p>Appeal from Special Term, Kings County. Inter-pleader action by the city of New York against Joseph Vollkommer and others. From a judgment in favor of plaintiff, certain defendants appeal. Affirmed.</p>

Action by Arthur T. Davern against William B. Rockwell, as temporary receiver, etc., of the Lakeside & Baldwinsville Railway. This is an appeal from a judgment of the Supreme Court,entered in the Onondaga county clerk’s office January 20, 1005, dismissing plaintiff’s complaint, with costs, and based upon a direction of nonsuit made at a Trial Term of said court held in said county.

<p>Action by Louis Ehrhard against the Metropolitan Street Railway 1 Company.</p>

<p>Appeal from Special Term. Action by John Faber against David T. Kenney: From an order reducing the amount of a warrant of attachment, defendant appeals. Order modified, and, as modified, affirmed.</p>

Action by La Roy S. Gove, as trustee, etc., against Max Tischler. From an order granting defendant’s motion to vacate a judgment in favor of plaintiff, he appeals. Modified.

<p>Action by Mary Hartwick against Edwin R. Ford and another.</p>

<p>Action by Joseph C. Grew against Charles H. Turner.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by John Havikin against the Thomas & Buckley Hod Elevator Company. From a Municipal Court judgment in-favor of defendant, plaintiff appeals. Reversed.</p>

<p>Action by the International Silver Company against Orlando F. Thomas.</p>

<p>Action by William Keane against the Brooklyn Heights Railroad Company.</p>

<p>Action by Annie L. Keller against Augustus R. Keller.</p>

<p>Appeal from City Court of New York. Action by Louis ICronthal against the Metropolitan Street Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed on condition.</p>

<p>Action by Herbert E. Lennox against the Interurban Street Railway Company.</p>

<p>Action by Charles A. Lee against the Union Railway Company of New York.</p>

<p>Action by the Long Island Loan & Trust Company, as trustee, etc., against the Brooklyn Hygienic Ice Company, Agnes L. O’Rourke, individually and as executrix, etc., the Empire State & Surety Company, and others.</p>

<p>Appeal from Municipal Court, Borough of Manhattan, First District. Action by John O. McGee against the United States Casualty Company. Judgment for defendant, and plaintiff appeals. Affirmed.</p>

<p>Action by_ David D. Mallory against Anthony W. Dimock.</p>

<p>Action by John Marroni, as administrator, against the city of New York.</p>

<p>Action by Joseph Napoletano, an infant, etc., against the Brooklyn^ Heights Railway Company.</p>

<p>Action by Peter J. Bloran, as administrator, against the Manhattan Transit Company.</p>

<p>Action by the New York Expanded Metal Company against the Fidelity & Deposit Company of Maryland.</p>

<p>Action by Amelia C. Parsons against Archelaus H. Parsons.</p>

<p>Proceedings by the people of the state of New York against Frederick Hasbrouck.</p>

Certiorari by the people of the state of New York, on the relation of the Farcy & Oppenheim Company, to review a determination of James L. Wells and others, commissioners of taxes and assessments of the city of New York. From an order reducing„ the assessment (87 N. Y. Supp. 84), defendants appeal. Affirmed.

<p>Proceedings by the people of the state of New York, on the relation of Adolphus E. Cowles against the board of supervisors of Allegany county.</p>

<p>Action by George F. Perkins and others against the Isaac H. Blanchard Company.</p>

<p>Proceedings by the people of the state of New York, on tire relation of the village of Chatham, against the board of, supervisors of Columbia county. No opinion.</p>

<p>Appeal from Special Term. Action by Alvan W. Perry against Benjamin L. M. Bates. From an order setting aside a verdict and dismissing the complaint, and from a judgment entered thereon, plaintiff appeals. Modified.</p>

<p>Action by Louis chuwalsky against the Central Railroad Company of New Jersey. No opinion.</p>

<p>Action by the St. Regis Paper Company against the Santa Clara Lumber Company and others.</p>

<p>In the matter of Morton B. Smith and others.</p>

<p>Action by Clarence Ten Eyck, .as receiver, etc., against Le Roy Bookman and another.</p>

<p>Action by George F. Vingut and Henry K. Vingut, as trustees, etc., against James W. Ketcham and others.</p>

<p>Action by Emma F. Tighe against Thomas J. O’Reilly.</p>

<p>Action by John R. Weir and Frederick Weir, composing the firm of James Weir’s Sons, against Frances E. Barker, trustee under the will of Charles Barker, deceased.</p>

In the matter of the application of Frank P. Wilder and the Carthoge Sulphite Pulp Company for the appointment of commissioners to assess damages of riparian owners on Deer river, etc.

<p>Action by Clarence R. Conger, as trustee under the last will and testament of Catherine Ann Hedges, deceased, against Theodore H. Conger and others.</p>

<p>Action by John Gowans and others against Frances H. Jobbins, as ancillary executrix of William F. Jobbins, deceased.</p>

<p>Appeal from Municipal Court, Boraogit of Manhattan. Action by Samuel T. Yo-ung against the New York City Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.</p>