Volume 95 — New York Appellate Division Reports

Appeal by the defendant, Catherine E. McNamara, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 24th day of October, 1903, upon the decision of the court rendered after a trial at the Broome Special Term.

Appeal by the defendants, Thomas O’Connor and others, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Warren on the 26th day of December, 1903, continuing during the pendency of the action an injunction order theretofore granted herein.

Appeal by the defendant, John Oalby, as administrator, etc., of William Crawford, deceased, from a judgment of the Supreme Court in favor of the plaintiff,, entered in the office of the clerk of the county of Ulster on the 13th day of April, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Mary F. Crowley, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 21st day of October, 1903, upon a nonsuit granted by the court after a trial at the Albany Trial Term, and also from an order entered in said clerk’s office on the 21st day of October, 1903, directing such nonsuit.

<p>Appeal by the defendant's, the Remington-Martin Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 31st day of August, 1903, upon the report of a referee enjoining and restraining the defendants from increasing the common stock of the Remington-Martin Company, and also from an order entered in said clerk’s office on the 22d day of September, 1903, granting the plaintiff an extra allowance.</p>

Appeal by Patrick W. Cnllinan, as State Commissioner of Excise of the State of New York, and another, from an order of the County Court of Washington county, entered in the office of the clerk of the. county of Washington on the 9th day of December, 1903, directing a resubmission of the local option questions to the voters of the town of Granville, and refusing leave to the appellant John W. Edwards and others to intervene in the proceeding.

<p>Resubmission to the electors of a town of the local option questions—what omission from the questions asked does not require it—failure to file a certified copy of the petition in the county clerk?s office —to what case such provision applies — the reason for such filing has ceased — a substantial compliance as to time is sufficient —burden of showing that the requisite signatures were■ attached—form of the petition as to the questions to be submitted. - . .</p> <p>Where the ballot for the submission to the electors of a town of the local option questions specified in section 16 of the Liquor Tax Law sets forth the various questions in the language of the statute except that, in the heading of the 4th. proposition, the word “only” is omitted so that the question reads “ Selling liquor by hotel keepers,” instead, of “Selling liquor by hotel keepers only,” the omission does not require a resubmission of the propositions to the electors, when it appears that the various propositions were fully explained in the body of the ballot-.</p> <p>The provision of section 16 of the Liquor Tax Law providing -that the town clerk shall, within five days after the receipt'by him of the petition for the submission of the local option questions, file in the county clerk’s office a certified copy of such petition, only applies when the local option propositions are tobe submitted at the time of holding a general election, and was inserted for the purpose of enabling the county clerk to prepare the ballots.'</p> <p>The reason for this requirement of the section no longér exists as section 86 of the Election Law (Laws of 1896, chap. 909, as amd. by chap. 405 of the Laws of 1903) provides that the town clerk shall furnish the ballots for town propositions even though the town meeting he held on a general election day.</p> <p>Semble, that even if the provision he still in force, the filing óf a certified copy of the petition in the-county clerk’s office on the seventh day after its receipt by the town clerk and more than twenty days prior to the election constitutes a substantial compliance with the statute.</p> <p>On a motion for a resubmission of the local option propositions to the. electors, the burden of showing that the original petition did not have attached thereto the requisite number of signatures rests upon the moving parties.</p> <p>A petition stating that the petitioners “ request the submission at the next biennial town meeting * * * of the several questions in relation to the sale of liquors in the town of Greenwich aforesaid, as provided by section 16 of the Liquor Tax Law,” states the questions to be submitted with sufficient plainness to satisfy the requirements of the statute.</p>

Appeal by Henry J. Haase from an order of the Supreme Court, made by a justice of said court and entered in the office of the clerk of the county of Chemung on the 4th day of March, 1904, directing that the appellant be committed to the county jail of Chemung county until the delivery by him to the respondent of all the books and papers belonging and appertaining to the office of chamberlain of the city of Elmira, or until otherwise discharged, according to law.

Appeal by the defendant, Andrew C. Terwilliger, as administra- ■ tor, etc., of Peter D. Terwilliger, deceased, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 13th day of February, 1904, denying the said defendant’s motion to vacate an order entered in said' clerk’s office on the 19th day of September, 1902, amending an interlocutory judgment theretofore entered in the above-entitled…

Appeal by the defendant Louise H. Grannemann, individually and as special guardian of Anna M. Grannemann and others, from a judgment of the Supreme Court in favor of the plaintiffs and the defendants Arthur E. Grannemann and Lena May Grannemann, entered in the office of the clerk of the county of Schenectady on the 27th day of July, 1903, upon the decision of the court rendered after a trial before the court without a jury at the Schenectady Trial Term.

Certiorari issued out of the Supreme Court and attested on the 12th day of September, 1903, directed to the State Board of Bail-road Commissioners of the State of New York and George W. Dunn and others, constituting said board, commanding them to certify ■and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting to the Troy Terminal Bailroad Company a certificate under section 59 of the Bailroad Law.

<p>Certiora/ri— to whom, it may run — the statutory authority to review errors in tax assessments is exclusive—the writ may not run to a municipal corporation in which, the relatoi' exercises a special franchise.</p> <p>Certiorari, except as it has been enlarged and extended by statute, is a common-law writ. In its office it is confined to the reviewing of proceedings of inferior courts, officers, boards and tribunals, where no other remedy is provided by statute, and it can run only to persons or tribunals that-have acted judicially in making the determination sought to be reviewed.</p> <p>Semble, 'that sections 350 to 356 of the Tax Law (Laws of 1896, chap. 908) constitute the only authority for the review of errors in assessments for the purpose of taxation.</p> <p>Under these sections, a writ of certiorari to review a local assessment can only run to the officers making the assessment.</p> <p>Section 45 of the Tax Law, as amended by chapter 354 of the Laws of 1900, contemplates that in reviewing the action of the State Board of Tax Commissioners in assessing a special franchise, it may be necessary to have before the court the record of some other board or officer, and the court is consequently given authority to direct that the writ shall run to such board or officer.</p> <p>Such section does not, however, authorize the court to direct that the city in which the relator is exercising the special franchise sought to be taxed shall be made a party to the writ.</p>

Appeal by the plaintiff, Mary A. Winne, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Albany on the 8th day of April, 1903, ■ upon the decision of the court rendered after a trial at the Albany Trial Term, the jury having been discharged, dismissing the complaint upon the merits.

<p>Surrogate's Court — decision of Court of Appeals reversing a decree admitting a will to probate and directing a trial by jury, —form of the order to be entered on the remittitur—the executor''s powers continue only where it is so ordered—power to appoint a temporary administrator'—after a verdict sustaining the will the Surrogate's Court should not vacate the order entered on the remittitur and the orders. appointing temporary administrators — quaere as to taking proof de novo as to the factum of the will in the Surrogate’s Court.'</p> <p>Upon an appeal to the Court of Appeals from an order of the Appellate Division, affirming the decree of a Surrogate’s Court admitting an alleged will to probate, the Court of Appeals reversed the order of the Appellate Division and the decree of the Surrogate’s Court and remitted the proceedings, directing a trial before a jury in the Supreme Court to determine whether the alleged will had been revoked.</p> <p>After the decision of the Court of Appeals the widow of the decedent procured the appointment of the Farmers’ Loan and Trust Company as temporary administrator of the estate. That corporation having resigned before entering upon the discharge of its duties, the widow herself was thereafter appointed administratrix and duly qualified. Subsequently the issue as to the revocation of the will was tried before a jury and a verdict rendered in favor of the proponent. The widow then made a motion before the surrogate to vacate the order of the Surrogate’s Court entered upon the remittitur from the Court of Appeals, the order appointing the Farmers’ Loan and Trust Company temporary administrator and the order by which she was appointed temporary administratrix.</p> <p>Held, that the court properly refused to vacate any of the orders;</p> <p>That the parties who had succeeded upon the appeal to the Court of Appeals were entitled, as a matter of right, to the entry of an order on the remittitur;</p> <p>That the judgment of the Court of Appeals could not be made the judgment of the Surrogate’s Court except in respect to those matters over which the Surrogate’s Court originally had jurisdiction, that is, so far as it denied probate pending a further judicial inquiry in the Supreme Court to an instrument which the surrogate had previously admitted to probate;</p> <p>That the order entered upon the remittitur should consequently not have provided for the reversal of the order of the Appellate Division or for a jury trial of the issue of revocation, but that'these provisions of the order entered upon the remittitur might be rejected as surplusage;</p> <p>That the surrogate had power, after the reversal of the decree admitting the will to probate, and pending the trial of the issue of fact before a jury, to appoint ■ a temporary administratrix of the estate;</p> <p>That the power of the executor nominated in the will did not continue, after the " reversal of the decree, until after the trial of the issue of fact sent to the jury, unless an express order to that effect was made by the surrogate pursuant to section 2582 of the Code of Civil Procedure.</p> <p>Qumre, whether, the jury having found that the will had not been revoked, it would be necessary to take proof de now in the Surrogate’s Court as to the factum of the will before a decree could be entered admitting the will to probate. , '</p>

Appeal by the defendant, Charles Berger, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 3d day of February, 1904.

Appeal by the plaintiff, Conrad Brand, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered in the office of the clerk of said court on the 26th day of March, 1904, upon the decision of the court rendered after a trial before the court without a jury.

<p>Negligence — nominal damages only are allowable for an injury causing inability to-work, where the loss of earnings is not proved.</p> <p>Where, upon the trial of an action to recover damages for personal injuries sustained hy the plaintiff through the alleged negligence of the defendant, it appears that the plaintiff, by reason, of his injuries, was unable to work at his- • occupation as a stone mason for a period of twenty-two days, hut it does pot appear what wages the plaintiff received, the-jury cannot award him more than nominal damages for his loss of earnings, and it is error for the court to charge that the jury may award him for his loss of earnings “ such sum as you see 'fit; from the testimony that you have heard, to compensate him for the twenty-two days away from his work.”</p>

<p>. Appeal by the defendant, Morris Risnikoff, from, a judgment of the Municipal Court of the city of New York, borough of the Bronx, in favor of the plaintiff, entered in the office of the clerk of said court on the 4th day of December, 1903.</p>

Appeal by the defendant, John M. Fox, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 5th day of February, 1904.

<p> Action to foreclose a mechanic’s lien—when a personal judgment ma/y be recovered, therein. </p> <p>Where the complaint in an action brought to foreclose a mechanic’s lien, in addition to demanding the foreclosure of the lien, asks “that the plaintiffs have judgment against the defendant for any deficiency that may remain due them after such sale,” if the action cannot be maintained as one to foreclose a mechanic’s lien, owing to the insufficiency of the notice of lien, it may still be maintained as one to obtain a personal judgment against the defendant pursuant to section 3412 of the Code of Civil Procedure.</p>

Appeal by the City of Mount Vernon from so much of an order of the'Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 8th day of February, 1904, as awards costs to the relator against the City of Mount Vernon in mandamus proceedings.

Appeal by the defendant, Levi G. Weir, as President of the-Adams Express Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered in the office of the clerk of said court on the 21st day-of January, 1904.

<p>Monsuit — the plaintiff is entitled to the most fmm'able view of the evidence — passenger in a street awr—panic caused by the appeao'ance of flames and smoke in theewr — when a nonsuit is improper.</p> <p>On a review of a judgment entered upon a nonsuit granted on a jury trial, the plaintiff is entitled to the most favorable view of her evidence which the jury might properly have taken.</p> <p>Upon the trial of an action to recover damages for personal injuries, the plaintiff gave evidence from which the jury might properly have found that the plaintiff was a passenger upon one of the defendant’s electric street cars; that while she was quietly sitting in the middle of the car, and without negligence on her part, flames and smoke appeared in various parts of the car, creating a panic among the passengers; that she, with others, attempted to leave the car, some through the windows and others by means of the door, and that "while thus endeavoring to escape from what appeared to be a menace to their safety, the plaintiff'fell or was pushed down, receiving the injuries complained of.</p> <p>Held, that it was improper for the court to nonsuit the plaintiff;</p> <p>That, although the complaint alleged that she, “believing herself in great peril, and to save her life; jumped from said car and fell upon the ground and was thereby severely bruised,” etc., while the evidence developed that she did not recollect what occurred in the rush, and one of her witnesses testified that she fell upon the platform of the car, this did ‘ ‘ not change substantially the claim or defence,” and that the pleadings might very properly have been deemed amended to conform to the facts proved under the provisions of section 723 of the Code of Civil Procedure.</p>

<p>Appeal by the defendant, Edward W. Heffner, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court.</p>

Appeal by the plaintiff, George Allen, from a judgment of the Supreme Court in favor of the defendant, entered -in the office of the clerk of the county of Kings on the 18th day of November, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the. defendant) Louis Frenkel, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of March, 1904, denying the said defendant’s motion for a bill of particulars, except so much thereof as refuses to grant his motion for said bill of particulars as td “ what servant or servants of defendant knew or had reason to know of the alleged defects and worn and rotten…

Appeal by the defendant, Samuel Spiegelman, from an order of the Municipal Court of the city of New York, borough of the Bronx, entered in the office of the clerk of- said court on the 11th day of August, 1903, denying the defendant’s motion for a review of the taxation of costs under an order of' this court affirming the judgment herein.

Appeal by the defendant, George Stewart Briggs, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of February^ 1904, denying the defendant’s motiomto vacate an attachment theretofore issued in this action..

Appeal by the plaintiff, Isaac Cohen, from a judgment of the Municipal Court of the city of New York in favor of the defendant, entered in the office of the clerk of said court on the 18th day of June, 1903, upon the verdict of a jury.

Appeal by the defendant, Mary Billy, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of October, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, decreeing the cancellation and discharge of a'«mortgage on certain real property.

Appeal by the plaintiff, Charles Gumberg, from a judgment of the Municipal Court of the city of New York in favor of the defendants, entered in the office of the clerk of said court on the 21st day of December, 1903, upon the decision of the court, rendered after a trial before the court without a jury, dismissing the complaint.

Appeal by the plaintiff, Carrie Loushay, as administratrix, etc., of Adelbert E. Loushay, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Orange on the 10th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Orange Trial Term.

Appeal by the petitioner, Josiah J. White, as guardian of the person of Frederic Hall White, an infant over the age of fourteen years, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 25th day of March, 1904, staying all proceedings under an order of said court entered in said clerk’s office on the 27th day of January, 1904, and under an order of affirmance thereof entered on the.…

<p>Appeal by the defendants, the Larchmont Horse Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, 'entered in the office of the clerk of the county of Westchester on the 18th day of February, 1903, upon the verdict of a jury for $8,000, and also from an order bearing date the 4th day of February, 1903, and entered in said clerk’s office, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by A. M. Stein and others, property owners, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 27th day of June, 1903, confirming the.report of commissioners of appraisal' appointed to ascertain and appraise the compensation to be made to such property owners for certain easements or interests in their real estate taken by The Brooklyn Union Elevated Railroad Company.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of June, 1903, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 15th day of July, 1903, denying the defendant’s motion foe* a new trial made upon the minutes.

Appeal by the defendant, the Interurban Street Railway Company, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 12th day of October, 1903, upon the verdict of a jury for $7,000, and also from an order entered in said clerk’s office on the 15th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal, by the defendant, The Sterling Piano Company, from a judgment of the Municipal Court of the city of New York, borough-of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 11th day of February, 1904.

Appeal by the defendant, Conrad Carlson, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 20th day of November, 1902, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 20th day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence — injury to a passenger standing in a street car occasioned by a violent unusual lurch of the car when starting.</p> <p>Evidence that a woman seventy-five years of age, who had taken passage upon a trolley car, while standing in the aisle thereof and about to take a seat, was thrown down and injured in consequence of the car giving a violent lurch when starting, different from the usual movement incident to the starting of a trolley car, is sufficient to sustain a finding of negligence on the part of the railway company.</p>

Appeal by the plaintiff, Edward P. Day, from an order of the Supreme Court, made at the Kings County Special Term -and entered in the office of the clerk of the county of Kings on the 24th day of March, 1904, striking out certain portions of the complaint as irrelevant and redundant.

Appeal by the defendant, The City of Yonkers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester, on the 23d day of October, 1902, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 8th day of November, 1902, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the -defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 14th day of October, 1903, upon the verdict of a jury for $6,900, and also from an order entered in said clerk’s office oh the 13th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, Ida Tuck, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the Yth day of April, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, directing the specific performance of a contract for the sale of land.</p>

Appeal by the defendant, The John Kroder and Henry R'eubel Company, from a judgment of the Supreme Court in favor of the plaintiff; entered in the office of the clerk' of the comity of Kings on the 4th day of March, 1903, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 21st day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Belinda Meehan, from a judgment of the Supreme Gourt in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15th day of October, 1902, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.,

Appeal by the defendants, The Brooklyn Union Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of December, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p> Action by an administrator to recover for the death of his intestate—attorneys? fees, etc., are chargeable against the recovery—fee of $1,000 paid to a physician—a finding of fact supplied on appeal by the Appellate Division. </p> <p>Under section 1903 of the Code of Civil Procedure, relating to the distribution of the damages recovered by ah administrator in an action brought to recover the damages resulting from the death of his intestate, which provides that the administrator may deduct from such damages “the expenses of the action,” the administrator is entitled to be credited with attorneys’ fees, disbursements and witness’ fees, together with reasonable compensation for expert witnesses, where they are required, as well as with payment for all other work, labor and services of whatever nature they may be, so long as they are incurred in good faith, under a reasonable supposition that the chances of success in the lawsuit will be enhanced by their employment.</p> <p>When the administrator is entitled to be credited with the sum of $1,000 paid to a physician who rendered valuable services to the administrator in the preparation for, arid upon, the trial of the action, considered.</p> <p>Upon an appeal from a decree of the Surrogate’s Court entered upon the report of a referee, the Appellate Division may, under sections 993 and 2586 of the Code of Civil Procedure, supply an essential finding of fact which was omitted from the referee’s report and from t*ke surrogate’s decree.</p>

. Appeal by the defendant, Edward R. Fegan, from a judgment of the Municipal Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said court on the 9th day of September, 1903.

Appeal by the defendant, William Dangler, from an order of the County Court of Kings county, entered in the office of the clerk of the county of Kings on the 17th day of February, 1904, denying ■the defendant’s motion to dismiss the complaint and granting the plaintiff’s motion for leave to discontinue the action, upon the payment of costs.

<p>Appeal by the plaintiff, Charles Serra, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 26th day of January, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the" 30th day of January, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Willett Hides, from an order of the Supreme Court, made at the Orange Special Term, and entered in the office of the clerk of the county of Dutchess on the 13th day of February, 1904, directing the plaintiff to serve a bill of particulars.</p>

Appeal by the defendant, John C. Gabler, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 22d day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of December, 1902, denying the defendant’s motion for a new trial made, upon the minutes.

<p>Appeal by the defendant, George JEL. Bressette, from, an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of March, 1904, awarding alimony and. counsel fees to the plaintiff, and also from an order entered in said clerk’s office on the 9th day of March, 1904, denying the defendant’s motion for a reargument of the motion for alimony and counsel fees.</p>

<p>Will — invalid direction for the accumulation of income—who ha/ce the next eventual estate—- the Appellate Division may affirm, but cannot reverse a judgment favorable to persons not parties to the appeal.</p> <p>A testator, who was survived by his widow and one daughter, gave the income of all his property to his widow for life, and after her death fifty dollars per month to his daughter and a larger sum in the event of her becoming a widow. The will then provided, “And out of the balance of the income, interest, rents, issues and profits of my said estate I direct my executors to pay all taxes, assessments, water rents, interest on mortgages upon my real estate, and all insurance premiums and necessary repairs upon the buildings, and to accumulate what then remains of such interest, income, rents, issues and profits of my estate and with the same from time to time, pay off all mortgages upon my real estate; as soon as all mortgages and incumbrances upon my real estate have been fully paid off and discharged, I direct my executors to pay over to my said daughter, Matilda H. Lowenhaupt, all the net interest, income, rents, issues and profits of my said estate after the payment, of all taxes, assessments, water rents, insurance premiums, necessary repairs upon the building and other necessary expenses for and during the term of her natural life.”</p> <p>Held, that "the provision for the accumulation of rents was invalid, but that the remaining provisions of the will were valid;</p> <p>That the testator’s widow having died, the husband and children of the testator’s daughter were presumptively entitled to the next eventual estate.</p> <p>Semble, that the Appellate Division may affirm a judgment, although certain persons favorably affected by the judgment have not been made parties to the appeal.</p> <p>Semble, however, that in such a case the Appellate Division would have no power to reverse the judgment.</p>

<p>Appeal by Frederick H. Maidment from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 11th day of November, 1903, directing the said Maidment to deliver to Harry F. Gill all the books and papers in his possession or under his control belonging or appertaining to the office of secretary of the board of health of the village of Sea Cliff. ■</p>

Appeal by the defendants, James Camardella and another, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 25th day of August, 1903, and also from an order entered in said clerk’s office denying the said defendants’ motion for a new trial made upon the minutes.

Appeal by Eben Goodwin and others from a decree of the Surrogate’s Court of the county of Westchester, entered in said Surrogate’s Court on the 5th day of December, 1903, admitting to probate a paper propounded as the last will and testament of Addraetta Goodwin, deceased. '

Appeal by the plaintiff, Sanders Shanks, as trustee in bankruptcy of the estate of Frank S. Henderson, bankrupt, from an interloeu. tory judgment of the Supreme Court in favor of the defendant Frank S..

Appeal by the defendant, the American Power and Construction-Company, from an order of the County Court of Kings county, entered in the office of the clerk.of the county of Kings on the 3d day of February, 1904, directing the issuing of a writ of assistance.

Appeal in each of the above-entitled actions by the respective plaintiffs, Thomas Devine and Edward Devine, an infant, by Thomas Devine, his guardian ad litem, from a judgment of the Supreme Court in each action in favor of the defendant, entered in the office of the clerk of the county of Kings on the 1st day of April, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Delia Filbert, as administratrix, etc., of William Filbert, deceased, from a judgment'of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 2d day of March, 1903, upon a nonsuit granted by the court after a trial at the Dutchess' County Trial Term.

<p>Appeal by the defendant, John M. Duffy, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office- of the clerk of the county of Kings on the 19th day of October, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term overruling the defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by the defendant, The Postal Typewriter Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of January, 1904, vacating an order bearing date the 14th day of December, 1903, which required the plaintiff to give security for costs and granting leave to the plaintiff to prosecute the action as a poor person.

<p>Costs amarded against executors, where payment of a claim was unreasonably resisted, although there was not a failure to file a consent that the surrogate determine the claim—-when costs may not be awarded for a failure to file the consent — certificate in the conjunctive form.</p> <p>The provisions of section 1836 of the Code of Civil Procedure, which provides that in an action brought to recover upon a claim against a decedent’s estate, costs may be awarded against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent, (1) where payment of the claim was unreasonably resisted or neglected, or (2) where the defendant did not file a consent that the claim should be determined by the surrogate upon the judicial settlement of the defendant’s accounts within “at least ten days before the expiration of six months from the rejection thereof,” are alternative, and an award of costs against the defendant may be made in either case specified.</p> <p>An award of costs cannot be sustained in consequence of the failure to file the consent mentioned, where it appears that the action was brought prior to the expiration of five months and twenty days from the rejection of the claim and consequently during the period in which the defendant could have-filed the consent.</p> <p>A certificate of the trial judge, made under section 1836 of the Code of Civil Procedure, reciting that “the payment thereof was unreasonably resisted and neglected; and that the defendants did not file the consent,” is not defective in form.</p>

<p>Appeal by Horace L. Ingersoll, as executor, etc., of Henry S. Ingersoll, deceased, from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 20th day of November, 1903, judicially settling the accounts of said executor, as disallows his commissions and charges him personally with the payment of certain costs.</p> <p>Also an appeal by Horace Ingersoll, the next of kin of said deceased, from that portion of the above-mentioned decree which construes the trust created in the 7th clause of the will of Henry S. Ingersoll, deceased.</p>

Appeal by the plaintiff, William Batterman, from a judgment of the Municipal Court of the city of Hew York, in favor of the defendant, entered in the office of the clerk of said court on the 21st day of January, 1904, dismissing the complaint.

Appeal by the plaintiff, Burkard Griebel, from a judgment of the Supreme Court in favor of the defendant, entered in the office •of the clerk of the county of Kings on the 14th day of November, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the lYth day of October, 1902, denying the plaintiff’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the 10th day of November, 1902,…

Appeal by the relators,. George P.. Fiske and another, from an -order of the Supreme Court, made át the Kings County Special Term and entered in the office of the clerk of the pounty of Kings on the 6th day of December, 1903, dismissing, a writ of certiorari and confirming an assessment theretofore made by the respondent's.

Appeal by the plaintiff, John Wagner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 11th day of Hay, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the plaintiff, Jane A. McKenna, from a judgment of the Supreme Court in favor of the defendant railroad companies, entered in the office of -the clerk of the county of Kings on the 7th day of November, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term dismissing the complaint as to said railroad companies and directing a recovery by the plaintiff from the defendant Mary E. Gordon of a certain, sum of money adjudged to have…

Appeal by the defendant, the Siegel-Cooper Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 16th day of October; 1903, upon the verdict of a jury for $1,100, and also from an order entered in said clerk’s office on the 13th day of November, 1903, denying the defendant’s motion for a. new trial made upon the minutes.

Appeal by the defendant, The John Hancock Mutual Life Insurance Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered in the office of the clerk of said court on the 26th day of October, 1903.

Appeal by the claimant, Myron N. Clark, from a judgment of the Supreme Court in favor of the receivers of The New York National Building and Loan Association,'entered in the office of the clerk of the county of Kings on the 1st day of February, 1904, upon the report of a referee dismissing the appellant’s claim, and also from an order entered in said clerk’s office on the 14th day of January, 1904, confirming the said referee’s report.

<p> Negligence—shooting of a poacher Try a gamekeeper—when a complaint therefor is based on negligence—when the keeper and his master are liable. </p> <p>In an action brought against Stoddard Hammond and Edward Tompkins to recover damages for personal injuries sustained by the plaintiff, it appeared that the defendant Hammond was the owner of a private park; that he employed the defendant Tompkins as a watchman and furnished him with a rifle for the purpose of keeping trespassers from the premises; that while the plaintiff was poaching upon the premises he was shot by Tompkins.</p> <p>The plaintiff gave evidence tending to show that, at the time he went upon the premises, he did not know that the watchman carried a gun or was in the habit of shooting there, or that any similar precautions to protect the property had been taken by the owner. He admitted that he saw the statutory warning to intruders, and that he knew the premises were a private park.</p> <p>Held, that the complaint, which alleged ‘‘That the plaintiff was shot and wounded through the negligence and improper and unlawful conduct of the defendants, and said injury was in no way contributed to by the plaintiff,” was based solely upon the ground of negligence;</p> <p>That the defendant Hammond owed no duty to the plaintiff except that, in the discharge of their, business in the master’s service, his agents, who were instructed to protect the property and drive off intruders, should not treat an intruder wantonly, maliciously, or.inflict willful injury;</p> <p>That if the agent’s act was improper and unlawful, to the extent of being feckless or wanton, the master was liable for the negligence of his servant.;</p> <p>That in omitting to discharge this duty which the defendant Hammond owed the .trespasser, so long as the servant’s acts were within the general scope of his employment while engaged in the master’s business, and done with a view to the furtherance of that business and the master’s interests, he was negligent.</p> <p>Jenks, J., dissented.</p>

<p>Lease of one street surface railway company by another — duty of the lessee to give transfers — statutory construction favorable to the public.</p> <p>In 1893 the Brooklyn Heights Railroad Company leased the Crosstown line of the Brooklyn City Railroad Company, and in 1900 it leased the Vanderbilt Avenue line of the Nassau Electric Railway Company, which intersected the Crosstown line. These leases were made under the authority of section 78 of the Railroad Law, as amended by chapter 676 of the Laws of 1892, which provides: “ Any railroad corporation or any corporation owning or operating any railroad or railroad route within this State, may contract with any other such corporation for the use of their respective roads or routes, or any part thereof, and thereafter use the same in such manner and for such time as may be prescribed in such contract.”</p> <p>Section 104 of the Railroad Law, as amended by chapter 676 of the Laws of 1892, provides: “Every such corporation entering into such contract shall carry or permit any other party thereto to carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand, and without extra charge, give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract * * *. Eor every refusal to comply with the requirements of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party.”</p> <p>Held, that the words, “Every such corporation entering into such contract,’ contained in section 104 of the Railroad Law, as amended by chapter 676 of the Laws of 1892, referred to the contract authorized by section 78 of that statute;</p> <p>That, in the event of the refusal of the Brooklyn Heights Railroad Company to give to a person who took passage on the Vanderbilt Avenue line of the Nassau Electric Railway Company with the intention of making a continuous trip to a point on the Crosstown line of the Brooklyn City Railroad Company, a transfer entitling him to transportation over the Crosstown line without additional fare, it became liable for the penalty prescribed by section 104 of the Railroad Law, as amended by chapter 676 of the Laws of 1892;</p> <p>That it was not material that the Cross town line of the Brooklyn City Railroad Company and the Vanderbilt Avenue line of the Nassau Electric Railway Company were not leased to the Brooklyn Heights Railroad Company under the same lease;</p> <p>That the Crosstown line of the Brooklyn City Railroad Company was within the meaning of the statute embraced in the contract with the Nassau Electric Railway Company as a part of the system operated by the Brooklyn Heights Railroad Company;</p> <p>That to entitle a passenger to the benefits of section 104 of the Bailroad Law it is not essential that his trip shall be begun upon the lines of the Brooklyn Heights Bailroad Company to be completed upon one of the leased lines; r</p> <p>That a corporation accepting the beneficial provisions of a statute is bound to assume the duties and obligations imposed upon it by such statute;</p> <p>That where two constructions of a statute are permissible that construction should be adopted which is more favorable to the public or to the State.</p> <p>Semble, that chapter 305 of the Laws of 1885, and chapter 565 of the Laws of 1890, and chapter 676 of the Laws of 1892, beipg in pari materia, must for the purpose of construction be read together.</p>

Appeal by the defendant, The German Insurance Company of Freeport, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 25th day of June, 1903, upon the decision of the court rendered after a trial at the Orange Special Term, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 3d day of April, 1903, striking this case frond the Trial…

<p>Will—purchase by an executor and trustee of property mortgaged to him'—presumption as to the settlement of the estate—power of a substituted trustee to convey the property — the fact that such substituted trustee is also one of the beneficiaries of an indivisible trust does not disqualify her.</p> <p>The will of Francis Fely, after revoking all former wills and providing for the payment of his debts, his funeral expenses, and making a number of small personal bequests of money, provided: “I also give and bequeath to my said wife, Josephine M. Fely, the equal one-third of the balance of my personal estate to have and to hold the same to her own use, benefit and behoof forever.”</p> <p>The next paragraph provided: “ All the rest, residue and.remainder of my estate, real and personal, I give, devise and bequeath to my Trustees, hereinafter • named, in trust to and for the following uses and purposes, to wit: 1st. To ■ invest and keep invested my personal estate in secure Bonds and Mortgages upon improved real estate situate in the City of Brooklyn, aforesaid. 2nd. To collect and receive all rents, issues and profits arising from my estate, both real and personal, and to pay over the net balance thereof as follows, to wit: An equal’ one-third of said net balance to my said wife, Josephine M. Fely, semi-annualiv during her natural life, to have and to hold the same to and for her own use, benefit and behoof forever. * * t* 3rd. The remaining two-thirds of said net balance to be paid semi-annually and in equal shares to my two children aforesaid, Victor Fely and Josephine M. Sweet, during the terms of their natural lives, to have and to hold the same to them, their heirs and assigns forevever; * * *.”</p> <p>The 4th paragraph of the will then provided; “Upon the decease of either my said son or daughter, the equal one-half of my estate, real and personal to be paid over to the then surviving children of said deceased son or daughter, share and share alike, upon their arriving at the age of twenty-five years respectively, to have and to hold the same to them, their heirs and assigns forever.”</p> <p>The 5th paragraph of the will provided that “ In order to carry into effect the provisions of this my will; and also should my trustees at any time deem it best for the interests of my estate to sell a part or all of my real estate, I hereby authorize and empower them, and the successors of them, to sell and convey, by good and sufficient deed or deeds, any part or all of my real estate; * * * The proceeds of such sale or sales shall form a part of my residuary personal estate.”</p> <p>Arthur J. Heaney, who was named as- executor of the will, became the sole acting executor and trustee. In his capacity as executor he received two bonds and mortgages upon certain property which he foreclosed and, as such executor, purchased the premises at the foreclosure sale. The will was admitted to probate February 11,1895, and the deed to Heaney was delivered March 10, 1897.</p> <p>September 14, 1897, Heaney’s accounts as executor were duly settled and he entered upon his duties as trustee under the will.- December 1, 1897, Heaney resigned as sole acting trustee and the surrogate appointed the testator’s daughter, Josephine M. Sweet, trustee in his stead. Mrs. Sweet qualified and the premises-in question were subsequently conveyed to her in her representative capacity by Heaney. The testator’s widow has since died.</p> <p>Held, that it might be presumed that prior to the purchase of the premises by Heaney, the personal bequests, including the one-third of the income of the personal property given to the widow, had been provided for or paid;</p> <p>That Mrs. Sweet, as trustee, had power to convey a good title to the premises purchased by Heaney at the foreclosure sale and to invest the proceeds in the manner directed by the will;</p> <p>That the contention that Mrs. Sweet, being one of the beneficiaries of the trust created by the will, could not act as the successor of the original trustee nominated and appointed by the will, was untenable;</p> <p>That the rule sought to be invoked does not apply to a case where the sole acting trustee is one of two or more beneficiaries of an indivisible trust fund, but only ■ to a case where the only acting trustee is the sole beneficiary of the trust fund.</p> <p>Submission of a controversy upon an agreed statement of facts pursuant to section 1279 of. the Code of Civil Procedure.</p>

Appeal by the defendants, Harriet H. Healey and another, from a judgment of the Municipal Court of the city of New York, borough of Richmond, in favor Of the plaintiff, entered in the office of the clerk of said court on the 25th day of February, 1904.

Appeal by the defendants, Minnie Bohm and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 4th day of April, 1904, granting a motion for discovery.

<p>Alimony — right thereto of a wife suing for a separation — the question as to the wifés success in ■the suit will not he determined on. the affidavits used on the motion.</p> <p>A wife who brings an action against her husband for a separation is entitled- to-be supported by. her husband pending the determination of such action, unless the husband be clearly relieved from his inherent obligation to support her •either by agreement'with the wife through a trustee or, by her misconduct.</p> <p>The court will not attempt to determine, upon the affidavits presented on a motion for the payment of alimony, the question whether the wife will be defeated in her action. • ■ '</p>

Appeal by the plaintiff, Harriet A. Haines, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the. county of New York on the 11th day of May, 1904, granting the defendant’s motion to change the place of trial of the action from the county of New York to the county of Saratoga.

Appeal by the defendant, William J. Torpie, from so much of an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 12th day of January, 1904, as reverses a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the said defendant, and directs a new trial of the action.

<p>Appear by the defendant, Peter Whitney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of' the clerk of the county of New, York on the 2.7th day of . January, 1904, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term. '</p>

Appeal by the defendant, Charles S. Christie, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 29th day of February, 1904, upon the decision of the court rendered after a trial at the' Hew York Special Term setting aside a conveyance of real estate.

. Appeal by the plaintiff, James Kilpatrick, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the l'Tth day of July, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s.office on the 28th day of July, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Louis J. Rothstein, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York, entered on the 12th day of November, 1903, convicting the defendant of the crime of grand larceny in the first degree in obtaining goods under false pretenses.

Appeal by the defendants, Benjamin E. Cohen and another, as surviving members of the firm of Simon Auerbach & Co., from a judgment of the Supreme Court in favor of the plaintiff, entered in the'office of the clerk of the county of New York on the 15th day of March, 1904, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been-waived.

Appeal by the plaintiff, William H. Schuyler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of .New York on the 30th day of July, 1903, upon the decision of. the court rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the complaint upon the merits.

Appeal by the plaintiff, Bridget McDonough, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the lltli day of February, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 7th day of March, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Certiorari issued out of the Supreme Court and attested on the 29th day of December, 1902, directed to John N. Partridge, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in relation to the dismissal of the relator from the police force of the police department of the city of New York.

<p>Savings bank deposit — withdrawal thereof by one acting under a power of attorney from the depositor after the latter's death — liability of the bank in an action to recover the deposit by the depositor's administrator — competency of the attorney who withdrew the money to testify in such action — the bank is not protected by its by-law—subrogation of the bank to the right of the attorney to show that the money was used for the decedent’s benefit.</p> <p>A depositor in a savings bank executed to one George Thoma a power of attor- ■ ney, which was filed with the bank, giving him full power and authority “to draw on my behalf and for my use ” the moneys deposited. After the depositor’s death, Thoma, who was aware thereof, presented to the bank the bank book and drafts signed by himself as attorney, in reliance upon which the bank paid to him the entire amount of the deposit. At the time the bank made the payments it had no notice of the depositor’s death, nor did it make any inquiry of Thoma as to whether the depositor was still alive.</p> <p>The by-laws of the bank, which were printed in its pass books and in its signature book, provided: “ Depositors alone shall be responsible for the safe keep- ■ ing of their books. And all payments.made to persons producing the deposit books, whether with or without an order or' letter of attorney, purporting to be" signed by the depositor, shall be deemed good and valid payments to depositors respectively and shall fully discharge the institution therefrom; ” and that “ on the decease of any depositor the amount standing to the credit of the deceased shall be paid to his or her legal representative.”</p> <p>In an action brought by the administrator of the depositor to recover the amount of the deposit, it was</p> <p>Reid, that in making the payment to Thoma the bank was not protected by the by-law authorizing payments to persons producing deposit books, as such by-law did not apply after the depositor’s death;-</p> <p>That the bank was bound to know that the power of attorney to Thoma was revoked eo instanti upon the death of the depositor;</p> <p>That it made the payment to Thoma at its peril and was bound to make the sum good to the depositor’s legal representative, unless it appeared that the power of attorney given to Thoma was coupled with such an interest'in Thoma as caused it to survive the depositor’s death;</p> <p>That Thoma, when called as a-witness for the defendant, was not incompetent, under section 829 of the Code of Civil Procedure, to testify to declarations made by the depositor and in regard to his own acts in relation to the depositor’s property with a view to showing that his power of attorney was coupled with an interest, as Thoma was not a party to the action nor a party from whom the defendant derived its interest, and, although interested in the question involved, was not interested in the event of the action and would not be boúnd by the judgment therein.</p> <p>Semble, that even though the -evidence were not sufficient to establish a gift to Thoma or that Thoma had any interest in the deposit, yet if it appeared that Thoma had paid the depositor’s funeral expenses, or in - other ways had established a right tó have moneys allowed from the fund because they had been properly paid by him for the 'benefit of the estate of the deceased, the court might hold that the defendant was equitably subrogated to thq tights of Thoma and entitled to credit for such payments.</p> <p>'Patterson, J., dissented. '</p>

■ Appeal by the defendant, The Holbrook, Cabot & Daly Contracting Company, from a judgment of the Supreme Court in favor of. the plaintiff, entered' in the office of the clerk of the county of New York on the 29th day of December, 1903, upon the verdict of a jury for $6,000, and also from an order entered in said clerk’s office on the 7th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Robert S. Howard, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of February, 1904, upon the dismissal of the complaint by direction of the court'after a trial at the New York Trial Term.

Appeal by the defendant, James Dougherty, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2d day of February, 1904, upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Murdo Tolmie, as sole surviving partner of the firm of Wood & Tolmie, from a judgment of the Supreme Court in favor of the. defendant, entered in the office of the clerk of the county- of Hew York on the 16th day of July, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the Hew York Trial Term, and also from an order entered in said clerk’s office on the 23d day of July, 1903, denying the plaintiff’s motion for a…

Appeal by the defendant, The Hastings Pavement Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 5th day 'of November, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of Novemher, 1903, denying the defendant’s motion for a new trial made upon the minutes..

<p> Assignment of apart of a fund—an agreement that a third person "is entitled to-one-half” thereof is not. </p> <p>An agreement to pay a certain sum out of, or that one is entitled to receive that sum from a designated fund, when received, does not operate as a legal or equitable assignment, since the assignor in either case retains control over the subject-matter.</p> <p>The test of an assignment, legal or equitable, is whether the debtor will be justified in paying the debt, or the portion thereof in reference to which the contract was made, to the person claiming to be the assignee.</p> <p>One Toch, who had been employed to secure a purchaser for certain real estate .under a contract by which the owners of such real estate agreed, if he was successful, to pay him a commission of two per cent of the purchase money, delivered to one Horowitz, who assisted him in procuring a purchaser who paid $325,000 for the property, the following instrument:</p> <p>“ In consideration of one (1) dollar I hereby agree with Salo A. Horowitz, representing Mr. Ralph C. Gerlach in the purchase of the Ryan property from Mary Ryan and Frederic J. Middlebrook, executor, that said Horowitz is entitled to one-half of the commission earned, amounting to §3,250.00, resulting from said sale..</p> <p>“ Dated New York, April 6th, 1903. •</p> <p>“ JOSEPH TOCH.”</p> <p>Reld, that such instrument did, not' constitute an equitable assignment of any .interest in the claim which Toch had against the owners of the property.</p>

<p>Appeal by the plaintiff, Adrian H. Jackson, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the plaintiff, Frank B. Hall, as liquidating partner of the late firm of Hall, Howlett & Wheeler, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 22d day of April, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Negligence—injwryfrom a fall upon an icy sidewalk— liability of the municipality —within what time it must, remove the ice—where several snoio storms occur, proof is required, that the first storm, if the charge of negligence rests thereon, was a concurring cause of the injury .</p> <p>The obligation resting upon a municipal corporation to remove accumulations of snow and ice from its sidewalks is not an absolute but a qualified one. It is bound to keep the streets and sidewalks in > reasonably safe condition for public travel, and for the■ non-performance of that duty, in case of injury, it is responsible, but it is not bound to perform impossibilities or do unreasonable things.</p> <p>A municipality cannot be said'to be negligent where, immediately following a fall of snow, it does not proceed at once to clear the sidewalks of snow and ice; it is the duty of abutting property owners to do that work, and the city has a right to rely, for a reasonable time upon the assumption that they will perform the obligation which the law casts upon them.</p> <p>In an action brought against the city of New York to recover damages for personal injuries which the plaintiff sustained by falling upon an icy sidewalk in that city at about three o’clock in the afternoon of the 33d day of February, 1903, it appeared that on the 17th of February, 1903, ten inches of snow fell;' . that the temperature during that and the two succeeding days was below the freezing point; that on the twentieth, at five p. m., it was two degrees above,, but all the rest of the day it was below; that on the twenty-first, after six p. m., it was above," and all the rest of the day below; that it snowed from seven A. m. on the twenty-first to six A. m:. on the twenty-second, during which time over four inches of snow fell; that on the twenty-second the average temperature was thirty-three and six-tenths degrees — the highest being forty-one degrees and the lowest twenty-six degrees;, that on the twenty-third the average temperature was thirty-three and six-tenths degrees—the highest being forty-one degrees and the lowest twenty-seven degrees.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should he reversed;</p> <p>That negligence on the part of the city could not he predicated upon its failure to remove the snow which fell on the twenty-first and twenty-second, because it not only had a right to rely for a reasonable time upon the assumption that the abutting property owner would remove it, but also to wait a reasonable time for the temperature to moderate;</p> <p>That the city could not be said to be negligent because it failed to remove the snow which fell upon the seventeenth of February;</p> <p>That even if it was negligent in this respect the plaintiff could not recover, as the evidence given did not justify a finding that the snow which fell on the seventeenth and the ice which formed therefrom were concurring causes of the accident.</p> <p>O’Brien, J., dissented.</p>

<p>Appeal by the defendant, Mary C. Leary, as administratrix, etc., of James D. Leary, deceased, from a judgment of the Supreme ' Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 28th day of May, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court'in favor of the plaintiff, entered in the office of the clerk of the county of New York op the 9th day of January, 1904, upon the verdict of a jury for $3,680, and also from an order entered in said clerk’s office on the 5th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of February, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office tin the 2d day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes..

<p>Appeal by the defendant, Francis Y. Greene, as police commissioner of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered-in the office of the clerk of the county of New York on the 3d day of June, 1903, granting the relator’s application for a peremptory writ, of mandamus.</p>

<p> Complaint—when allegations of false representations maybe disregarded—stay of proceedings where counter actions, an'ising out of the same transactions, a/>'e brought —a defendant is not bound to set up a counterclaim. </p> <p>Where the complaint in an action avers certain false and fraudulent representations, claimed to have been made by the defendants to induce the plaintiff to enter into the transactions out of which the debt claimed to be due arose, but the complaint, as a whole, shows that it was not the intention of the plaintiff to bring his action in tort, but one resting solely upon a money demand, the averments of fraudulent representations do not characterize the action and may be disregarded.</p> <p>After the commencement of an action in the Supreme Court, the defendants therein brought an action in a local court. Both causes of action were to recover sums of money and both arose out of the same transactions.- The plaintiff, in the local court action might have- set up his cause of action as a counterclaim in the Supreme Court action, but a determination of the Supreme Court action would not necessarily settle all of the issues arising out of the transactions upon which both actions were brought.</p> <p>Held,, that the defendants in the Supreme Court action were not obliged to set up their claim as a counterclaim in the Supreme Court action, but might properly bring an independent action thereon, and that the .court had no power to stay the trial of an action so brought until the trial of the Supreme Court action.</p> <p>O’Brien and Laughlin, JJ., dissented.</p>

<p>Appeal by H. James Alexander from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the .county of New York on the 26th day of January, 1904, adjudging the said appellant guilty of contempt and imposing a fine.'</p>

Appeal by the plaintiff, William Fox, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 18th day of February, 1904, upon the decision of the court rendered after a trial at the Hew York Special Term.

Appeal by the defendant, John J. McOook, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of May, 1904, denying the said defendant’s motion to vacate an order theretofore granted for his examination before action brought.

Appeal by the plaintiffs, John A. Pray and Isaac W. Chick, as surviving partners of the firm of John H. Pray Sons & Co., etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of'the county of New York on the 21st day of March, 1904, denying the plaintiffs’ motion to punish the defendant Louis L. Todd • for contempt of court.

Appeal by the plaintiff, Thomas McCormick, from an order of' the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 7th day of July, 1903, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the defendant, entered in the office of the clerk of said court on the 10th day of March, 1903, dismissing the plaintiff’s complaint.

Appeal by the plaintiffs, Joseph Ward, Jr., and another, from so much of an.interlocutory judgment of the Supreme Court in favor of the defendant William E. R. Smith and certain other defendants, entered in the office of the clerk of the county of Hew York on the 8th day of March, 1904, upon the decision of the court rendered after a trial at the Hew York Special Term, as grants leave to the said defendants William E. R. Smith and others to demur to the complaint on the…

Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on -the 21st day of October, 1903, upon the verdict of a jury for $5,000,' and also from an order entered- in said clerk’s office on the 26th day of October, 19Q3, denying the defendant’s motion for a new trial made upon the minutes. • This is a statutory action to recover for the death of Joseph…

Appeals by Louis Lowenstein and others,: as executors of and trustees under the last will and testament of Isaías Meyer, deceased., and others, from portions of a decree of the Surrogate’s Court of the county of Hew- York, entered in said Surrogate’s Court on the 12th day of August, 1903, settling the accouhtsjof the said executors and trustees, and directing the distribution of a trust fund.

<p>False imprisonment—liability, where an a/rrest for a felony is made by a police officer at the request of a private citizen — how far the officer is the agent of the citizen requesting the arrest — when the question whether the a/rrest was justified, is one of fact for the jury■—aha/rge as to compensator’ll and as to punitive damages — proof of actual malice.</p> <p>If a private individual identifies a person as one who has been guilty of a crime and requires a police officer to arrest him without a warrant, the arrest is the joint act of the private individual and the peace officer, and if the arrest is unwarranted and illegal both the police officer and the private individual are joint tort feasors and both are liable for the wrong. The fact that the officer, acting under the information given to him by the individual, is the one that takes the physical possession of the person arrested does not relieve the private individual from responsibility. Both the individual and the officer unite in the act and are both responsible for the arrest if unlawful. While the officer may prove a justification by showing that a felony had been committed, and that he acted upon the statement made to him by the instigator and had reasonable cause to believe that the person arrested was guilty of the felony, the person instigating the arrest, and who is jointly responsible with the police officer for it, to justify himself, must show that a felony had been committed, and that the person arrested Was connected with it, or at least that he acted upon grounds which would justify a prudent person in believing that the person arrested was guilty.</p> <p>Merely furnishing information to a police officer, when called upon to state facts for his guidance, although such information is subsequently shown to be inaccurate, does not make "the person making the statement a joint actor with the police officer in making the arrest. It is only when the action of the police officer is instigated or procured by the private individual, and the police officer acts, not upon his own volition, but to carry out a request, so that the private individual in effect procures the officer to make the arrest, that the individual becomes a joint actor with the officer in making the arrest. /</p> <p>' In an action to recover damages ■ for false imprisonment, induced by the statement of a person who had been swindled, to a police officer who made the arrest, that the plaintiff was the person who had swindled him, it is a question for the jury to determine under all the circumstances of the case whether the person making the statement was justified in supposing the plaintiff to have been the guilty person; if he was, he is not liable.</p> <p>It is, therefore, improper for the court to charge, as matter of law, that the plaintiff is entitled to recover compensatory damages.</p> <p>In such a case, exemplary damages may be awarded only upon proof of actual malice. ■ • '</p> <p>The evidence of such actual malice may consist of proof that the acts of the defendant were instigated, by a desire to injure the plaintiff, or that the defendant acted wantonly or without reasonable ground to suppose that the arrest was justified, or that the conduct of the defendant was such as to indicate that the wrong was committed from malicious or improper motives.</p> <p>The defendant is entitled to have the jury charged that the police officer who made the arrest was not the agent of the defendant after the arrest was made, " and that tlie defendant was not responsible for any act thereafter done by the police officer.</p>

Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Rew York On the 12th day of December, 1903, upon- the dismissal of the complaint by direction of the court after a trial at the Rew York Trial Term, and also from an order entered in said clerk’s office on the 10th day of December, 1903, granting the defendants an additional .•allowance.

Appeal by the defendants, Thomas L. Feitner and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New-York on the 16th day of February, 1904, reducing the assessment of certain real property in the city of New York for taxation, for the year 1899.

<p>Appeal by the plaintiff, Patrick W. Cullinan, as State Commissioner of Excise of the State of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of April, 1903, upon the verdict of a jury, and also from an - order entered in said clerk’s office on the 30th day of March, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the defendant, John D. O’Connor, as executor, etc., of Margaret Powers, deceased, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of April, 1904, denying a motion to compel the plaintiff to accept an answer interposed by the defendant as executor, except upon condition.</p>

Appeal by the defendant, the Supreme Council, American Legion of Honor, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 25th day of April, 1904, denying the defendant’s motion to open a default in the action.

Appeal by Augustus Newbold Morris, as trustee of Eleanor C.. Morris, and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of February, 1903, confirming the report of the commissioners of estimate and assessment appointed in the above-entitled proceeding.

Appeal by the defendant, Maria G. Pernetti (as stated in the notice of appeal), from a judgment in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of June, 1903, upon an order of the Court of General Sessions of the Peace in and for the city and county of New York, entered in said court on the 29th .day of June, 1908, forfeiting a recognizance given by the- defendant for the appearance of one (Antonio) Messina Genova who…

Appeal by Henry Lewis Morris from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 19th day of May, 1903, confirming the report of commissioners of estimate and assessment theretofore appointed in the above-entitled proceeding.

Appeal by the defendant, the United States Mortgage and Trust Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1904, granting the plaintiffs’ motion that the defendant be required to furnish a bill of , particulars.

Appeal by the defendant, Welcom Y. Connor, from an order of the Supreme Court, made at the New York Special Term' and entered in the office of the clerk of the county of New York on the 23d day of May, 1904, denying the defendant’s motion to vacate a warrant of attachment theretofore granted in the above-entitled action.

Appeal by the plaintiffs, Abraham Goodman and another, from .-an order of the Supreme Court, made at the New York Special Term and entered-in the office of the clerkiof the county of New' York on the 3d day of May, 1904, requiring the plaintiffs to serve .a further verified bill of particulars

<p>Appeal in each of the above-entitled actions by the plaintiffs, John E. Roosevelt and W. Emlen Roosevelt, as trustees for Marcia R. Scovel, under the last will and testament of James'I. Roosevelt,' deceased, from an order of the Supreme Oourt in such action, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of February, 1904, setting aside in part a sale had under a judgment of foreclosure and ordering a resale.</p> <p>The facts .are fully stated in. the dissenting opinion,</p>

. Appeal by Elizabeth Ransford from an order of the Supreme Court, made at the New Y ork Special Term and entered in the office of the clerk of the county of New York on the 11th day of June, 1903, denying an application made by the appellant undér section 14 of chapter 1006 of the Laws of 1895.

Appeal by the New York Pie Baking Company from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of May, 1904, denying the appellant’s motion to vacate an order theretofor obtained by the petitioner for the examination of the said company.

Appeal by the defendant, John Coleman, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April, 1904, denying the defendant’s motion to vacate an order of arrést theretofore granted in the above-entitled action.

Appeal by the defendants, Sidney P. Hessel and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York, on the 20th day of April, 1904, directing the said defendants to give to the plaintiff a discovery and inspection of certain books, documents, and records, and permission to take copies.

<p>Condemnation of land for Riverside Park, in New York city — a reference in chapter 727 of the Laws of 1896 to the provisions of law “ relating to the taking of private property ” covers those relating to the making of an assessment — it is not in violation of section 17 of article 3 of the Constitution — the word one-third” construed to have teen intended for “ one-fourth ” — interest from the date of the vesting of title in the city.</p> <p>The Legislature, when enacting chapter 727 of the Laws of 1896, entitled “An act to provide for an addition to Riverside park, in the city of New York,” intended, by section 2 of the statute, which provides, “ Except as provided in this act, all provisions of law relating to the taking of private property for public streets or places in said city are hereby made applicable so far as the same may be necessary for the acquiring of said land as aforesaid,” to make the provisions of law referred to therein applicable not only to the steps and proceedings to be taken in acquiring the land, but also to the taking and collection of the local assessment provided for in the statute.</p> <p>The statute is, consequently, not unconstitutional, because it does not contain an express provision that notice shall be given to the owner of lands which are assessed for benefits.</p> <p>Inasmuch as section 2 of the act of 1896 merely refers to local statutes, to indicate ■ the procedure to be followed, the failure to insert the provisions of such local statutes in the act does not render it unconstitutional under section 17 of article 3 of the Constitution of the State of New York, which declares, “no act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of said act or which shall enact that any existing law or part thereof shall be applicable except by inserting it in such act.”</p> <p>The word “one-third,” used in that part of section 4 of the statute which provides, “ the commissioners * * * shall assess to the extent of one-third of the amount of said award, interest, costs and expenses upon all such parties * * * as they may deem to be benefited by such improvement to the extent which said commissioners * * * deem such parties * * * benefited thereby * * was inadvertently used, as appears from an examination of the preceding part of the section, providing “ that all costs and expenses of the proceeding for acquiring title to the lands taken under this act shall be borne and paid, three-fourths thereof by the mayor * * * and the remaining one-fourth by the parties and persons, lands and tenements benefited the word “one-fourth” was intended and the statute should be so construed.</p> <p>The act having provided that title to the property affected should vest in the city at the beginning of the proceeding and before the commissioners had an opportunity for assessment, the provision of section 4, that interest on the value of the property taken from time to time when title vested in the city shall be included in the assessment, is proper, as such interest is a part of the cost of the proceeding and is not occasioned by the delay of the city in making the award.</p> <p>Ingraham and McLaughlin, JJ., dissented.</p>

<p>Appeal by the plaintiff, William 0. Le Gendre, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 29th day of January, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

<p>Appeal by the defendant, Robert Milbank, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Few York on the 3d day of February, 1904, upon the decision of the court, rendered after .a trial at the Few York Special Term, overruling the said defendant’s demurrer to the plaintiff’s complaint.</p>

Appeal by the plaintiffs, Charles D. Ingersoll and another, as executors of and trustees under the last will and testament of Delia A. Blanchard, deceased, from so much of a' judgment of the Supreme Court in favor of the defendants, James W. Cunningham and another, entered in the office of the clerk of the county of New York on the 6th day of April, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, as dismisses the.complaint as to…

Appeal by the defendants, James L. Wells and others, as commissioners of taxes and assessments of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day of March, 1904, vacating an assessment upon the capital stock of the relator for the year 1903.

Appeal by the defendants, Barbara Frey, individually, and as executrix, etc., of Francis Frey, deceased, and others, from an interlocutory judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 13th day of June, 190-2, upon the decision of the court rendered after a trial at the New York Special Term.

<p>Liquor tax certificate — right to surrender it and compel payment of the rebate— proof that the Excise Law .has not been violated.</p> <p>An assignee, of a liquor tax certificate, who, pursuant to a provision contained in such assignment, surrenders the certificate during the term thereof, is not entitled, as a matter of absolute right, to receive the rebate on the certificate if, at the time of the surrender thereof, no proceeding was pending against the holder of the certificate for a violation of the Liquor Tax Law; in order to be entitled to the rebate, the assignee must prove that the holder has not violated any provision of the Liquor Tax Law during the excise year for which the certificate was issued.</p> <p>If the holder has been guilty of such violation, the assignee is not entitled to the rebate notwithstanding that, at the time of the surrender of- the certificate, ' such violation had not been discovered, or if it had, that no proceeding was then pending against the certificate holder on account thereof.</p> <p>The relation which exists between the holder of a liquor tax certificate and the State is contractual and is subject, in disposition of rights thereunder, to the establishment of a right to recover pursuant to the terms of the statute.</p>

Appeal by the defendant, Joseph J. Slocum, from a judgment of the. Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county'of New York on the 21st day of April, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendants, Grace B. Buggies and others, from a final judgment of the Supreme Court in favor of the plaintiff and the defendant Elizabeth M. Van Winkle, entered in the office of the' clerk of the county of New York on the 27th day of April, 1903, upon the decision of the court, rendered after a trial at the New York Special Term in the. above-entitled partition action, with notice of an intention to bring up for review upon such appeal an interlocutory judgment…