Volume 96 — New York Appellate Division Reports

Certiorari issued out of the Supreme Court and attested on the 21st day of February, 1903, directed to Francis Y. Greene, as police commissioner of the police department of the.city of New York, directing him to certify and return to the office of the clerk of the county of New York all and singular the proceedings had by John N. Partridge, as police commissioner of the police department of the city of New York, in relation to the dismissal of the relator from the police…

Appeal by the defendant, Franklin Haines, 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 24th 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 Maurice G. Gennert and others from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 25th day of April, 1904, granting the application of Edmund Wuestner for the issuance of ancillary letters of administration, with, the will annexed, upon the estate of Gottlieb Gennert, deceased.

Appeal by the plaintiff, Ray Sokolski, 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 7th day of July, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits,

Appeal by the plaintiff, Christopher Tautphoeus, 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 28th day of April, 1904, vacating a judgment in favor of the plaintiff theretofore entered in this.action and setting aside an execution issued thereon and a levy made thereunder.

Appeal by the defendant, Nathan Abrahams, from an order of the Court of Special Sessions of the Peace in and for the city and county of New York, entered on the 13th day of January, 1904.

Appeal by Sebastian D. Lawrence, as executor of and trustee under the last will and testament of Joseph J. Lawrence, deceased, from an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 25th day of April, 1904, assessing a transfer tax upon the income actually paid over to the several beneficiaries under the will of the said deceased.

Appeal by the defendant, Duncan Young, 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 1st day of November, 1902, convicting the defendant of the crime of murder in the second degree.

Appeal by the plaintiff, William S. Petty, from an interlocutory 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 11th day of March, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, the American Locomotive Company, from a judgment of the County Court of Schenectady county in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 30th day of September, 1903, upon the verdict of a jury for $1,500, and also from an order entered-in said clerk’s office on the 30th day of September, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p> Measure of damages where the title to an easement to take water from a spring, conveyed with land to which it is appurtenant, by a full covenant deed, fails —the case is one of partial eviction. </p> <p>Where the title to the whole of property conveyed under a full covenant deed fails and the grantee is evicted therefrom, the measure of damages recoverable by him in an act¡ion upon the covenants of seizin and of quiet enjoyment contained in the deed is the purchase price of the premises and interest thereon..</p> <p>If the failure of the title and the eviction only affected a portion of the property conveyed, the grantee may recover such part only of the original price as bears the same ratio to the whole consideration that the value of the land to which the title has failed bears to the value of the whole premises.</p> <p>Where the property-conveyed consisted of two acres of land and the right to take water from a spring upon land adjacent to such two acres, and the grantee is evicted from the use and enjoyment of the water rights under a paramount title, the case is one of a partial eviction.</p> <p>It is, therefore, error in such a casé for the court to charge that the measure of damages is the difference between the purchase price of the premises and their value without, the right to usé the spring.</p> <p>In order to enable the correct rule of damages to be applied, the,plaintiff should show the value of the property at the time it was conveyed, with and without the right to use. the spring annexed.</p>

Appeal by the defendant, the United Traction Company; from'a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of December, 1901, upon the verdict of a jury for $500, which amount was thereafter reduced to $200 upon the stipulation of the plaintiff pursuant to an order entered in said clerk’s office on the 7th day of December, 1901; also from an order entered in said clerk’s…

Appeal by the defendant, The Norwich Gas and Electric Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango; on the 28th day of January, 1904, -upon an order made at the Chenango Special - Term and entered in said clerk!s .office on the 28th day of January, 1904, overruling the defendant’s demurrer to the plaintiff’s complaint, and also from the said order directing the entry of…

Appeal by the defendant, Loring Moore, from a judgment .of the.

Appeal by the petitioner, James R. McFadden, from an order of the County Court of Washington county, entered in the office, of the clerk of the county of Washington on the 29th day of January, 1904, denying the petitioner’s application for the appointment, of commissioners in the above entitled proceeding.

Appeal by the defendant, Magdalene I. Merritt, as executrix, etc., of Julia A. ,La Grange, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 8th day of January, 1904, upon the report of a referee. The facts of this case are substantially stated in the opinion written when the case was here on a former appeal and reported in 88 Appellate Division, 279.

<p>Bill of sale — when construed in connection with a lease and right of purchase to he a chattel mortgage — when the question may he first presented on appeal.</p> <p>When a bill of sale, construed in the light of the surrounding circumstances and in connection with a lease subsequently executed by the vendee to the vendor containing a provision that if the vendor should, at any time before a specified date, pay the vendee the purchase price of said property and interest, the vendee “agrees to sell the same to him for that sum and deliver what remains of the property upon payment thereof,” constitutes, as matter of law, a chattel mortgage, and it is consequently error for the court to submit the question whether it was intended to be a chattel mortgage to the jury, considered.</p> <p>The failure of the party claiming a bill of sale to be a chattel mortgage to move for the direction of a verdict upon the trial and to except to the charge of the court submitting the question whether it was a chattel mortgage to. the jury, does not prevent such party, where the jury find that the bill of sale did not constitute a chattel mortgage, from urging the contrary on an appeal from a judgment entered upon the verdict.</p> <p>Parker, P. J., and Houghton, J., dissented.</p>

Appeal by the defendant, the United Traction Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 19th day of January, 1904, 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 January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Submission of a controversy upon an agreed statement of facts* pursuant to section 1279 of the Code of Civil Procedure. The plaintiffs are bankers doing business, under the name of .

Appeal by the plaintiff, The Town of Walton, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the : clerk of the county of Delaware on the 29th day of October, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Delaware Trial Term, and also from an order entered, in said clerk’s office on the 29th day of October, 1.903, directing the dismissal of the complaint.

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 Madison on the 17th day of February, 1903, upon the verdict of a jury for $2,775, and also from an order entered in said clerk’s office on the 9th day of February, 1903, denying the defendant’s motion for a new trial made upon the minutes; The plaintiff, a brakeman in the employ of…

<p>Appeal by the plaintiff, the Citizens’ National Bank of Saratoga Springs, N. Y., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 16th day of October, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Saratoga Trial Term, and also from an order entered in said clerk’s office on the 2d day of November, 1903, denying the plaintiff’s ■ motion for a new trial made upon the minutes.</p> <p>On the 13th day of February, 1897, the plaintiff, a banking corporation, discounted for the defendant a note of $10,000, made by one Barker, and indorsed by the defendant. Said note was renewed from time to time. A note so given in renewal February 11, 1898, was not fully paid, and on the 24th day of October, 1899, the plaintiff brought an action against the defendant on said note and demanded judgment for $7,289, with interest from June 30, 1899, as the balance due on said note. On November 10, 1899, the defendant filed a petition in bankruptcy, and on November 14, 1899, an order was. granted by a referee in bankruptcy restraining the plaintiff for twelve months, from November 10, 1899, from entering judgment in its said action. On August 16, 1901, the plaintiff obtained an order at a Special Term granting it leave to discontinue said action “ without passing upon the right of the plaintiff to institute such other action or proceeding against the defendant as it may be advised.” The action was thereupon discontinued. On December 15, 1902, this action was commenced by the service of a summons. On March 25, 1903, a complaint was served alleging the making of said note of February 11, 1898, and the failure of the defendant to pay the same, which complaint' was in the ordinary form of a complaint on a promissory note. The defendant served an answer to said complaint, and the plaintiff then served an amended complaint, in which he repeated the allegations of the original complaint, but added further allegations in which he stated •that the defendant for the purpose of procuring the discount of said note had made false representations to the plaintiff on the faith of which the notes had been discounted, and also further allegations in which he stated that the defendant had transferred property subsequent to the making of said note with intent to defraud the plaintiff. The answer of the defendant to the amended complaint admits the making of the note and its protest and the amount claimed to be due thereon, but denies the allegations relating to false representation and fraudulent transfers, and also alleges the "defendant’s discharge in bankruptcy,, and that the plaintiff had by bringing the action of October 24, 1899, and by the original complaint in this action elected to proceed in affirmance of the contract and could not now recover in an action alleging the fraud and fraudulent transfers. .</p> <p>The evidence received on the trial is sufficient from which a jury might have found that the defendant had made the false representations alleged in the complaint and that the plaintiff discounted said note in reliance thereon. The evidence- offered by the plaintiff relating to the alleged fraudulent transfers of property was excluded. Prior to the plaintiff’s bringing the action of October 24, 1899, the plaintiff had been informed in a general way or by rumor that the representations made to it at the time of the discount of said note were false, but did not have knowledge thereof other than such as it had obtained by such general statements and rumors. The plaintiff knew of the fraud before this action was brought. On the trial at the close of the plaintiff’s evidence a motion was made by the defendant to dismiss the plaintiff’s complaint, and in ruling thereon statements were made by the plaintiff’s counsel and by the court as follows: “ Plaintiff contended that the remedies sought were not inconsistent ones. The Court: You ask for judgment on the note or damages for the deceit, which is it? Plaintiff’s counsel: We have set out the note, and then we set out as one of the incidents the fraud connected with it. The Court: You alleged in the complaint that you were damaged by reason of the fraudulent acts of defendant and at the same time you set out the note and ask judgment for the amount. If you will disclaim the damages by reason of the fraud or the cause of action based on the note—if you can determine which one you want to rely on I will be in a position to dispose of thé question. Plaintiff’s counsel: We are trying to get judgment enforceable against the person, and if we'fail to show fraud we cannot recover. The Court: Then you have an action for deceit pure and simple. And if you have that action why is it not true that when you did sue in March last upon.the note, you had elected to proceed upon the note and waived the fraud ? Plaintiff’s counsel: We are not asking for any damages except wliat is due on the note. We want judgment for the amount due us which will be enforceable against the person or the property. The Court: I think that last March when you made the complaint you knew then whatever there was of the facts just as well as you know now, and knowing that you sued on the note. I think the motion must.be granted and the complaint dismissed upon the ground that you made an election of inconsistent remedies and waived the fraud. Plaintiff excepted to the ruling of the Court.”</p>

Appeal by the plaintiff, William Rockefeller, from' a judgment of the County Court of Franklin county in favor of the defendant, entered in the office of the clerk of the county- of Franklin on the 25'th day of January, 1904, upon the verdict of a jury, which judgment was amended by an order entered in said county clerk’s office on the 11th. day of February, 1904; also from an order entered in said clerk’s office on the 17th day of December, 1903, denying the plaintiff’s…

Appeal by the plaintiff, Merton W. Hall, from a judgment.of the County Court of Fulton county in favor of , the defendant, entered in the office of the clerk of the county of Fulton on the 16th day of March, .1904* upon an order of said County Court, entered in said clerk’s office on the 16th day of March, 1904, reversing a judgment of a'justice of the peace in favor of the plaintiff, entered on the 20th day of July, 1903, with notice of an intention to bring up for review…

Appeal by the defendant, John E. Van Natta, as sole surviving executor, etc., of Dwight McIntyre, 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 Tompkins on the 3d day of March, 1904,. denying the defendant’s motion for a taxation of his costs and affirming a decision of the clerk of Tompkins county x refusing to tax such costs.

<p>Illegal liquor traffic—proceedings 'under section 29 of the Liquor Tm Law to enjoin it — the proceedings cannot be instituted on a petition alleging the facts upon information and belief—the proceeding is penal — construction of statutes in pari materia.'</p> <p>Section 29 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1897, chap. 312) provides : “If any corporation, association, copartnership or person shall unlawfully traffic in liquor without obtaining a liquor tax certificate; as provided by this act, or shall traffic in liquors contrary to any provision of this act ** * * any taxpayer residing in the county may present a verified petition to a justice of the Supreme Court or a Special Term of the Supreme Court of the judicial district in which such county is situated, for an order enjoining such corporation, association, copartnership or person from trafficking in liquor thereafter. Such petition shall state the facts upon which such allegations a/re based.”</p> <p>The portion of a petition presented under this section relating to the alleged unlawful traffic in liquors was made upon information and belief, and the source of such information and belief was stated to be the sworn testimony of certain persons given before a justice of the peace, copies of which were annexed and made a part of the petition. Such copies consisted of a paper headed;</p> <p>“COURT OF SPECIAL SESSIONS:</p> <p>“Deposit, Broome County, New York,</p> <p>“Before Justice of Peace E. D. Jester.</p> <p>“The People of the State of New York against “John Doe.</p> <p>“ Evidence taken in an investigation at the village of Deposit, in the town of Sanford, Broome County, New York, on Wednesday, November' 25, 1903, in • Star Chamber Session in town hall in the said town and village.”</p> <p>Following this heading was what purported to be a transcript of questions to and answers by certain witnesses. It bore no evidence of ever having been signed by the witnesses, but at the end of the alleged questions and answers of the witnesses respectively was a copy statement as follows :</p> <p>“I, E. D. Jester, Justice of the Peace of the town of Sanford, Broome county, New York, do hereby certify that the above is the testimony given by S. R. Titus, witness sworn in behalf of the people in the above-entitled proceeding.</p> <p>“Dated Deposit, N. Y., Dec. 9<7i, 1903.”</p> <p>There was also presented in connection with the petition an affidavit of the petitioner and of one other person that he was present at the said examination and heard the witnesses testify as set forth in the transcript attached to the petition. 2STo reason was stated for the petitioner’s failure to procuré the affidavits of the witnesses named by the petitioner.</p> <p>Held, that the petition did not confer jurisdiction upon the court, as the jurisdictional facts were not stated upon the petitioner’s personal knowledge;</p> <p>That the language of section 29 of the Liquor Tax Law should receive a construction similar to that which had been given to the same language when used in subdivision 2 of section 28 of the Liquor Tax Law;</p> <p>That where the same language is used in several parts of the same act, it is presumably intended to convey the same meaning.</p> <p>That, assuming that circumstances might exist which would justify the consideration of statements made on information and belief in a proceeding under section 29 of the Liquor Tax Law, no such circumstances had been, shown in the case at bar;</p> <p>That such a proceeding should be considered as a penal proceeding;</p> <p>Chester and Houghton, JJ., dissented.</p>

Certiorari issued out of the Supreme Court and attested on the 23d day of July, 1900, directed to William J. Morgan,, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in stating an account for taxes against the relator for the year ending October 31,1899, and in the revision and readjustment of the same.

Appeal by the defendant, The-Welch Grape Juice Company, from a judgment of the County Court of Schuyler county in favor of the plaintiff, entered in the office of the clerk of the county of Schuyler on the 7th day of March, 1903, affirming a. judgment of a justice of the peace entered on the 7th day Of May, 1901.

Appeal by the defendant, The Liverpool and London and Globe Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Otsego on the 25th day of July, 1903, upon the verdict of a jury; also from an order entered in said clerk’s office on the 5th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes, and also from an order entered in said clerk’s office on the…

Certiorari issued out of the Supreme Court and attested on the 2d day of August, 1901, directed to Erastus C. Knight, as Comptroller of the State of New York, commanding him to certify and Return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the refusal to revise and readjust an account, for taxes against the relator for the year ending October 31, 1900: The relator is a domestic corporation with a paid-up capital…

Appeal by the plaintiff, the New Union Telephone Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Warren on the 14tli day of October, 1903, upon the report of a referee dismissing the proceeding.

Appeal by Otto Kelsey, as Comptroller of the State of New York, from an order of the Surrogate’s Court of the county of Delaware, entered in said Surrogate’s Court on the 7th day of March, 1904, setting aside an order entered in said court on the 20th day of November, 1899, assessing a transfer tax upon the estate of John McMurray, deceased.

<p>Action to abate a nuisance and for damages — the court may award damages and refuse to direct its removal.</p> <p>Under sections 1660 and 1662 of the-Code of Civil Procedure the court has power, in an action for a.nuisance, to award the plaintiff judgment for damages or for the removal of the nuisance, or for both classes of relief.</p> <p>Under what circumstances, where the nuisance consists of the action of a defendant city in depositing the sewage from its sewer system into a creek communicating- with a canal upon which the plaintiff’s premises abut, the court is justified in simply awarding the plaintiff judgment for the damages caused by the nuisance and in refusing to direct the removal of such nuisance, considered.</p>

Appeal' by Otto Kelsey, as Comptroller of the State of New York, from a decree of the Surrogate’s Court of the county of Tompkins, entered in said Surrogate’s Court on the 14th day of March, 1904, affirming an order theretofore entered in said Surrogate’s Court, fixing the transfer tax in the above-entitled proceeding and adjudging the shares passing to Hester M. Nye, Charles F. Fisher and Daniel D. Fisher to be exempt from taxation under the Transfer Tax Law.

<p> A tenancy by the curtesy does not arise where the land is deeded to the wife subject to a life estate which, does not terminate during her lifetime. </p> <p>To entitle a husband to curtesy in his wife’s lands, the wife must have had at the time of her death seizin in fact as distinguished from seizin in law, and this rule is applicable to cases" where the wife’s title is acquired by deed, as well as to cases where it is acquired in any other manner.</p> <p>Consequently, where lands are conveyed to a wife subject to the use and occupation of another during life, provided such life tenant make repairs and pay taxes, if the wife dies before the termination of the life estate, the husband is not entitled to curtesy in the lands.</p>

Appeal by the defendant, The Thames Iron Works, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 12th day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day'of November, 1903, denying the defendant’s motion for a new trial made Upon the minutes.

Appeal' by Eugene L. Ashley from an order of the Surrogate’s Court of the county of Warren, entered in said Surrogate’s Court on the 4th day of April, 1904, adjudging the appellant guilty of contempt of court for refusing to answer certain questions as a witness.

Certiorari issued out of the Supreme Court and attested on the 13th day of January, 1904, directed to Otto Kelsey, as Comptroller of the State of New York, commanding him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the granting of an application for the redemption of certain lands sold for unpaid taxes.

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. Rensselaer on the 2d day of April, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 11th day of April, 1903, denying the defendant’s motion for a new trial made upon the minutes.-

<p>Appeal by the plaintiff, James White, from a judgment of the County Court of Clinton county in favor of the defendant, entered in the office of the clerk of the county of Clinton on the 7th day of May, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order bearing date the 6th day of May, 1903, and entered in said clerk’s office, denying the plaintiff’s motion for á new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, George H. Sponenburg, 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 Montgomery on the 4th day of March, 1904, suspending the operation of an injunction theretofore granted in the action from the 29th day of January, 1904, to the 29th day of January, 1905.</p>

Appeal by the defendant, William W. Stine, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Schenectady on the 5th day of March, 1904, upon the decision of the court, rendered after a trial at the Fulton Special Term, sustaining the plaintiff’s demurrer to the second defense set up in the amended answer, and also from an order- entered in said clerk’s office on the 19th day of February, 1904,…

<p>Appeal by the defendant, Naomi S. Boiler, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1904, denying the defendant’s motion to vacate and set aside an interlocutory judgment of divorce theretofore entered in the above-entitled action.</p>

Appeal by .the defendant, The Pennsylvania Steel Company, from an order_of the Supreme Court, made at the Mew York Trial Term and entered in the office of the clerk of the county of Mew York on the 7th day of June, 1904, granting the plaintiffs motion to prefer this action over other issues.

Appeal by Max Radt, trustee in bankruptcy of Abraham M. Eisenberg, 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 27th day of May, 1904, confirming the report of a referee appointed in surplus-money proceedings.

Appeal by Annie F. Dieter, impleaded in place of George H. Huntington, from ah order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of Hew York on the 23d day of April, 1904, reviving and continuing the above-entitled action in the name of the appellant as plaintiff.

Appeal by the defendant, the Otis Elevator 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 6th day of February, 1904, upon the verdict of a jury for $8,000, rendered after a trial at the New York Trial Term.

Appeal by the plaintiff, La Roy S. Gove, as trustee in bankruptcy of Franklin Typewriter Company, a corporation, 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 10th day of December, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon- the merits.

Appeal by the defendant, Edward J. Greacen, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of Hay, 1904, denying the defendant’s motion to amend an interlocutory .judgment theretofore entered in the action.

<p>Bond to indemnify a defendant against a recovery on the merits, given in consideration of the withdrawal of the defense of the Statute of Limitations — it is not enforcihle, where the suit is compromised. v</p> <p>The obligation assumed in a bond is tobe construed in connection with, and to be controlled by, the recitals of the purposé and object for which it was given.</p> <p>The city of New York having set up the Statute of Limitations as a defense in an action brought against it, the plaintiff in said action brought an action against her attorney, one Clark, for malpractice in failing to bring the action within the statutory period. Clark, desiring to be relieved of the charge of malpractice, induced the corporation counsel of the city of New York to withdraw the defense of the Statute of Limitations by giving a bond reciting the bringing of the action and further providing, “ Whereas, in said action the defendant interposed as a defense that the action was not brought within one year from the date of the alleged cause of action; and</p> <p>“Whereas, it is desired that the defendant in the said action withdraw said defense so that the case may be tried upon the merits;</p> <p>‘ ‘ Now, therefore, the condition of the above obligation is such that if the above bounden, William H. Clark and John B. Sexton, shall well and truly hold harmless and indemnify the City of New York as the successor of said Mayor, Aldermen and Commonalty of the City of New York of and from any judgment that may be recovered in said action in favor of the said plaintiff therein, in respect to the damages awarded tó the plaintiff and the costs and allowances therein—after it shall have been finally determined in said action that the plaintiff was entitled to recover therein—then this obligation shall be null and void, otherwise to be and remain in full force and effect.”</p> <p>Held, that the bond contemplated that the liability of the city should be determined after a trial before a court and a jury on the merits, and that the city having settled the action without a trial, it could not recover upon the bond the amount paid upon such settlement unless the principal and surety upon the bond consented to .the settlement.</p>

Appeal by the defendant, Jacob Paskusz, 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 13th day of November, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 30th day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Submission of a controversy upon an agreed statement of facts,pursuant to section 1279 of the Code of Civil Procedure.</p>

Certiorari issued out of the Supreme Court and attested on the 20th day of May, 1904, directed to the Court of General Sessions of the Peace in and for the city and county of New York and Martin T. McMahon, a judge of said court, commanding them to certify and return to the office of the clerk of the county of New York all and singular their proceedings had in committing the relator for contempt of court.

Appeal by the plaintiff, Joseph A. Haefelin, from an interlocutory 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 19th day of January, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, sustaining the defendant’s demurrer to the plaintiffs complaint.

<p>Appeal by the plaintiff, William Wheeler Smith, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 7th day of December, 1903, granting the defendant’s motion to set aside a verdict theretofore rendered by the jury in favor of the plaintiff and granting a new trial.</p> <p>•The plaintiff in this action sought to recover from the defendant seven monthly payments of $3,125 each, amounting in the aggregate to $21,875, under a lease covering a portion of the first and second floors of the premises Ho. 7 Wall street, New York city, for the seven months beginning with* February 1, 1900, and also the sum of $11,068.73, the cost in excess of $1,000 of fitting up the demised premises. The deféndant admitted the making of the lease, and that he had not paid the rent, and averred that he had no knowledge as to the cost of fitting up the premises. As an affirmative defense he alleged that by a covenant of the lease the plaintiff had agreed to fit up the premises in a manner suitable for the transaction of a banking and trust company business,, and to give the defendant possession on the 1st day of February, 1900; that the premises were not properly fitted up and that possession was not delivered to the defendant on the said date. The answer also contained a counterclaim for damages for failure to give possession, but this was abandoned upon the trial.</p> <p>The facts show that in the fall of 1899 the defendant was engaged with several others in the effort to organize a trust company in New York city and that at a meeting of the incorporators held on the 26th day of September, 1899, the defendant was authorized to close negotiations for the renting of certain offices on the first and second floors of the building No. 7 Wall street. Thereafter, on or about the 27th day of September, 1899, the defendant entered into a lease of the described premises for the period of ten years beginning February 1, 1899, at a yearly rental of $37,500, payable monthly in advance. The lease provided that the premises should be used for the business of the trust company and for no other purpose, and that the plaintiff was to fit them up in a suitable and proper manner, the cost of which in excess of $4,000 was to he paid by the defendant. The lease contained the usual covenant that the tenant should quietly have, hold and enjoy the premises for the term of the lease.</p> <p>At the time the parties entered into the lease a portion of the first floor of the premises covered by the lease was occupied by Selisberg & Co. Subsequent to the making of the lease and on the 10th of November, 1899, the incorporators of the proposed trust company met and appointed the defendant and two other members of the organization committee, Mr. Morrison and Mr. Dunn, a sub-committee to' attend to the furnishing of the offices. The plaintiff was notified that the defendant would require Selisberg & Co. to vacate the premises on the 1st of January, 1900, but so far as appears did nothing with respect to such notice. That company occupied the premises under an oral lease from the plaintiff until May 1, 1900, and such occupancy delayed the completion of the premises and some of the work could not be finished until they vacated on that date.</p> <p>The plaintiff, to meet the claim that the defendant had been kept out of possession by the Selisbergs, introduced much evidence of the conduct of the defendant and of Dunn in making contracts both prior to and after the 1st day of February, 1900, in fitting up the leased premises.</p> <p>Upon the trial, it being in effect conceded that the plaintiff could not give actual possession of the entire premises leased on February 1, 1900, the issue was presented whether the defendant had waived the plaintiff’s inability to do so, and this* together with the issue as to the cost of fitting up the premises, were the questions for the determination of the jury. The jury having found in favor of the plaintiff for the full amount, the trial justice, on motion for a new trial, set aside the verdict, and it is from the order entered upon such motion that the plaintiff appeals.</p>

<p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

Certiorari- issued out of the Supreme Court and attested on the 26th day of August, 1903, directed to Francis Y‘. Greene, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of New York all and singular his proceedings had in relation to the dismissal of the relator from the police force of the city of New York.

<p>Appeal by the plaintiff, Emily Linden, 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 21st day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s- office on the 18th day of December, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Appeal by the defendants, J. Langdon Ward and another, as executors, etc., of George Bliss, deceased, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 2d day of July, 1903, upon the decision of the court rendered after a trial at the New York Special Term directing an accounting by the defendants.

Appeal by the plaintiff, David Belasco, 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 6th day of April, 1904, granting the defendants’ motion for a bill of particulars.

Apíeal by the defendants, Albert Buchman and another, from'a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day. of March, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of March, 1903, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the plaintiff William H. Woolverton, as president of' the New York Transfer Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 24th day of April, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 24th day of March, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Euphemia H. Olcott, 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 7th day of May, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the plaintiff, Lillian Nórdica-Doeme, 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, appointing a referee to take evidence and report to the court as to whether an interlocutory judgment of divorce theretofore entered in- favor of the plaintiff was obtained by fraud and collusion.

Appeal by the defendants, Charles H. Wenman and another, from so much of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of May, 1904, as denies the said defendants’ motion for an order directing the plaintiff to serve an amended complaint separately setting forth and numbering the statements of fact constituting the causes of action set out in the complaint.

Appeal by the defendant, E. Arden Noblett, from a judgment of the Court of General Sessions of the Peace in and for the city and county of New York in favor of the plaintiff, entered on the 28th day of January, 1901, convicting the defendant of the crime of grand larceny in the first degree.

Appeal by the plaintiffs, George Freifeld and another, as trustees under the last will and testament of Robert F. Bixby, deceased, 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 30th day of March, 1904, granting the defendant’s motion for the appointment of a referee to assess the damages sustained by the defendant by reason of the granting of an injunction to the…

Appeal by the intervenor, the Hoffman House, 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 31st day of December, 1903, dismissing the appellant’s petition in intervention and vacating an order of reference in the said intervention proceeding.

Appeal by the defendant, the Mason Stable Company, Limited, from a judgment of the Supreme Court in favor of . the plaintiff, entered in the office of the clerk of the county of New York on the 7th- day of November, 1903, upon the verdict of a jury for $5,000, and also from an order entered in said clerk^s office on the 10th day of November, 1903, denying the defendant’s motion for a, new trial made upon the minutes.

<p>Pleading — (he conditions at (he time of the commencement of the action control— evasion in the answer of the allegations of the complaint —irresponsive and evasive denials and admissions stricken out.</p> <p>A defendant, when answering, should not be permitted to evade the admission of a material allegation of the complaint by shifting the time to which he addresses himself from the period referred to in the complaint to a subsequent period. The rights of the parties are.determined as of the commencement of the action • and subsequent occurrences are no defense.</p> <p>■ A denial “ that the purport or effect of the said resolution is correctly set forth” is irresponsive and should be stricken out.</p> <p>An admission in an answer (to a complaint alleging that the defendants have ' maintained an unlawful combination) that “ they have maintained the plan and rules of- the American Publishers’ Association as the same have been from time to time amended,” is also irresponsive and should be stricken out.</p> <p>An admission in an answer (to a complaint alleging that the defendants were invited to join an unlawful combination of the defendants set forth therein) that the “ plaintiffs have been invited to buy books from the defendant on like terms with others ” is evasive and should be stricken out.</p> <p>An admission in an answer (to a complaint alleging that the defendants established a system of espionage) that the. “ American Publishers’ Association has by lawful means endeavored to ascertain how the plaintiffs obtained supplies of copyright books ” is irresponsive and should be stricken out.</p>

Appeal by the plaintiff, Henry Crowley, 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 17th day of June, 1903, upon the verdict of á jury rendered by direction of the court ■after a trial at the New York Trial Term.

Appeal by the defendant, the Interurban Street Railway Company, 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 23d day of January, 1904, reversing a judgment of the Municipal Court of the city of New York, borough of The Bronx, in favor of the defendant, entered on the 24th day of November, 1903.

Appeal by the defendant, the Interurban Street Railway Company, 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 8th day of February, 1904, affirming a judgment of the Municipal Court of the city of New York, borough of Manhattan, in favor of the plaintiff, entered on the 28th day of November, 1903.

<p>Motion by the plaintiff, The Hopedale Electric Company, for a, new trial upon a case containing exceptions, ordered to he heard at the Appellate Division in the first instance, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

Appeal by the defendants, Daniel Coleman and others, 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 10th day of November, 1903, upon the .verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of November, 1903, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, Alice B. Colcord, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, bearing date the 30th day of June, 1903, and entered in the office of the clerk of the county of New York upon the decision of the court rendered after a trial at the New York Special Term.

Appeal by the plaintiff, Jordan J. Rollins, 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 2d day of February, 1904, upon the dismissal of the complaint by direction of the court after a trial at. the New York Trial Term.

<p> Service of summons—under what conditions the delivery to one under arrest is not good service. </p> <p>Under section 426 of the Code of Civil Procedure, which provides that personal service of a summons upon the defendant must be made by delivering a copy thereof within the State to the defendant in person, it is necessary that the defendant shall be apprised in some substantial form of the fact that service is intended to be made, and be informed generally of the proceeding against him, in order that he may have knowledge thereof and an opportunity to defend.</p> <p>The service must be effected in an orderly manner. If the defendant seeks to avoid the service, the paper may be placed upon his person, or it may be dropped near him and his attention called to the proceeding and to the fact ■ that service is intended.</p> <p>A person may not assault another in order to effect service, and papers violently thrust upon the person, even though the act may convey some information to the party intended to be served, is not good service and will be held to be void.</p> <p>Service of the summons on the defendant in an action was attempted.to be made under the following circumstances: The defendant, who was under arrest, was walking between two detectives. He was handcuffed by his right hand and in his left hand he held a satchel. While thus proceeding a deputy sheriff: broke through the crowd which surrounded the party and placed the summons ' between the lapels of the defendant’s outer and under coats. The summons fell to the ground and one of the detectives picked up the paper and put it in the defendant’s overcoat pocket.. The defendant did not know at the time of the occurrence, or for some time afterwards, that an attempt had been made to serve him with a summons. Both he and the detectives, at the time, supposed that the process server was attempting to assault' him.</p> <p>Haiti, that the service was invalid and should be set aside.</p> <p>O’Brien, J., dissented.</p>

<p>Appeal by the plaintiff, George Haywood Carpenter, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of New York on the 28th day of May, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of May, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Police power — a statute requiring the examination and licensing of horseshoers is unconstitutional —the punishment for the same crime may vary in different places — Penal Gode, § 384m, in its relation to article 12 of the Labor Law as renumbered. '</p> <p>The police power of the State can only he exercised for the promotion of the health, comfort, safety and welfare of society.</p> <p>The statutes (Laws of 1897, chap.- 415, §§ 180-184; Laws of 1899, chap.'558; Laws of 1903, chap. 151; Penal Code, § 384m) regulating the subject of horseshoeing, are unconstitutional and cannot be sustained as a valid exercise of the police power of the State either on the theory that they tend to promote the health, comfort, safety and welfare óf society, or to prevent cruelty to animals.</p> <p>Semble, that punishment for a particular crime may be meted out with more severity in one locality than in another, but that the law which works such a result must apply equally to all the inhabitants of the State.</p> <p>Qumre, as to the effect of the limitation of the application of a portion of the provisions of section 384m of the Penal Code to cities of the first and second class, and also as to the effect of the renumbering of the articles of the Labor Law pursuant to chapter 151 of the Laws of 1903, in consequence of which the . subject of horseshoeing is no longer covered by article 12, referred to in section 384m of the Penal Code, but by article .18.</p>

Appeal by Arthur Wells from an order of the Supreme Court.,. made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of April, 1904, interpleading and substituting the appellant in the place of the defendant, The Corn Exchange Bank.

<p> Surrogate—appointment of a relative the guardian of an infant. </p> <p>While the Surrogate’s Court is vested with discretionary power to appoint a stranger the guardian of the person and estate of an infant, such power will not, other things being equal, be exercised where a relative of the infant is in existence and is competent and desirous of being appointed.</p> <p>Where one sister of an infant applies to have a trust company appointed guardian of the infant’s estate, and another sister of the infant applies to have herself appointed guardian of the infant’s person and estate, the surrogate may properly appoint the trust company guardian of the infant’s estate, and the opposing sister guardian of the infant's person.</p>

Appeal by the defendant, L. Laflin Kellogg;, 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 31st day of May, 1904, denying the defendant’s motion for leave to •amend the judgment roll in the above-entitled action by striking therefrom two notices of trial on the part of the plaintiffs and two notices of trial on the part of the defendant.

<p>Appeal by the defendants, Orlando F. Thomas and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 31st day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of November, 1903, denying the defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, John E. McDonald, from, an order of the Supreme Court, made at the New York Sperial Term and entered in the office of the clerk of the county of New York on the 12th day of May, 1904, vacating an order for the examination of the defendant before trial.

Appeal by the plaintiff, the Electric Boat Company, from so much of an order, of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the- county of New York on the 13th day of Hay, 1904, as amends the clerk’s minutes of the trial of this action by inserting the words “ upon the merits ’’ in the entry reciting that the complaint was dismissed, and by inserting the same words in the judgment entered in favor of the defendant.

<p>Action by a plaintiff on a claim accruing before, which is sued upon after, the claimant's discharge in bankruptcy — the suit is not maintainable if the claim is not disclosed in the bankruptcy proceeding — a discharge is not conclusive as to the bankrupt’s having accounted for all his property — a trustee'will be appointed where assets are subsequently discovered—title to the claim until the trustee is</p> <p>In an action brought to recover for services rendered by the plaintiff to the defendant, it appeared that, after the plaintiff’s alleged cause of action accrued, he presented a voluntary petition in bankruptcy, and that prior to the commencement of the action he obtained a discharge in bankruptcy. In the bankruptcy proceedings, the plaintiff did not disclose the existence of the claim in suit or any other asset, and consequently no trustee was appointed. The plaintiff testified that the claim was not fraudulently concealed, but that it was omitted in good faith by advice of counsel.</p> <p>Held, that the plaintiff could not maintain the action, and that his complaint was properly dismissed.</p> <p>Semble (per Laughlin and O’Brien, JJ.), that a discharge in bankruptcy is not conclusive evidence that the bankrupt has accounted for all his property.</p> <p>Semble (per Laughlin and O’Brien, JJ.), that if no trustee in bankruptcy is appointed because no assets are shown, a trustee may and should be appointed . if assets are subsequently discovered; that even if the legal title to the claim in suit remained in plaintiff, he held it as trustee, and that the equitable title passed to the creditors, and that the custody and control passed to the court to be administered for their benefit through a trustee to whom the legal title to the chose in action would pass upon his appointment.</p>

<p>Trust—when a remainder vests-—what is not a devisable interest—in whom the surplus income vests—duty of the trustees in respect thereto — costs of an action paid out of income when the question involved relates thereto.</p> <p>The 9th article of the will of Noel J. Becar, deceased, provided as follows:</p> <p>"Ninth. Item.— I give and devise to my executors hereinafter named, or such of them as shall take upon themselves the execution of this will, one undivided third of my said two stores, Numbers Five and Seven (5 & 7) Dey street in the City of New York, to have and to hold to said executors, their survivors and successors, for and during their joint natural lives, of my two daughters, Pauline and Adele, and the life of the survivor of them, in trust nevertheless to receive the rents and profits of the same, and from the proceeds to pay the taxes and assessments accruing on the same, and to keep the same insured against loss by fire and in good repair, and apply the surplus income in half yearly payments, or oftener, to the use of my said daughter Pauline during her natural life, to her sole and separate use and on her individual receipt, and from and after her death leaving my said daughter Adele her surviving, then during the life of my said daughter Adele to apply said surplus income to the use of the children of my said daughter Pauline her surviving, and the issue Of such as may then be deceased, share and share alike per stirpes and not per capita. Upon the death of the survivor of my two said daughters Pauline and Adele, then I devise said one-third of said two stores in fee to the children of my said daughter Pauline, and the issue of such as may he then deceased, share and share alike, per stirpes and not per capita.”</p> <p>The testator’s daughter Pauline died subsequent to the testator, leaving surviving her three children, two of whom have since died; Adele is still living.</p> <p>Held, that the remainder did not vest absolutely upon the death of Pauline', and would not vest absolutely until the death of Adele, and would then vest absolutely in "the issue of Pauline, then, surviving, and the descendants of her issue then surviving per stirpes;</p> <p>That neither the issue of Pauline, nor the descendants of her deceased issue, took an interest in the remainder which was devisable during the life of Adele, because their interest was conditioned upon their surviving Adele;</p> <p>That after the death of Pauline, and during the life of Adele, the surplus income of the remainder did not vest in the children of Pauline;</p> <p>That such income passed to the trustees, who were required to apply the same, from time to time, to the use of Pauline’s children; and the issue of her deceased children per stirpes, to all intents and purposes in the same manner that the trustees were directed to apply the surplus income to Pauline’s use during her life;</p> <p>That the right of Pauline’s children, and the issue of her deceased children, to participate in such income continued only during their respective lives;</p> <p>That the costs of an action brought to obtain a judicial construction of this article of the will should be paid out of the income, and not out of the principal, for the reason that the necessity for the action arose out of a controversy as to the disposition of the income of the trust fund, and for the further reason that the payment of the costs out of the principal would necessitate a sale of the trust property prior to the expiration of the trust, and thus thwart the testator’s intention.</p>

<p>Appeal by Edward M. Grout, as comptroller of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of March, 1904, directing the issuance of a peremptory writ of mandamus commanding the comptroller of the city of New York to pay to the respondents or their attorney the sum of $21,505, with interest thereon from the 20th day of October, 1897, to the date of payment of said sum and interest.</p>

Appeal by the defendant, The City of Rome, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Oneida on the 28th 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 4th day of November, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<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, George M. Brown 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 Wyoming on the 9th day of June, 1903, upon the report of a referee.

<p>Will — it speaks as of the testator’s death — an article answering the description of one bequeathed thereby passes to the legatee although it was not in existence when the will was made.</p> <p>A will speaks with regard to personalty as of the date of the death of tire testator, •and any article of personal property which the testator owns at the time of his death, which answers the description of an article bequeathed,.passes -under .the will to the legatee named therein, although said article may not be the identical article owned by the testator at the time the will was executed.</p> <p>The 8th clause of a will provided as follows:</p> <p>“ Eighth. I give and bequeath to Florence Hayes, of Buffalo, New York, all my china ware and my diamond brooch.”</p> <p>The 17th clause of such will provided:</p> <p>“ Seventeenth. I give and bequeath to Mrs. Lomax, of Dewitt Street, near Breckenridge Street, Buffalo, New York, and to her daughters, Hilda and Ethel, such of my wearing apparel as they may choose and any jewelry not otherwise disposed of in this will.”</p> <p>At the time of the execution of the will the testatrix owned but one diamond brooch, which she subsequently delivered in part payment for another brooch. The latter brooch Was the only one which she owned at the time of her death.</p> <p>Held, that the brooch passed to the legatee mentioned in the 8th clause of the will, and not to the legatees mentioned in the 17th clause thereof.</p>

Appeal by the plaintiff, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Erie on the 2d day of Hay, 1904, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the plaintiff’s complaint in this action brought by a taxpayer to restrain the defendants from letting a contract to do away with a grade crossing.

Appeal by the defendant, The Anderson Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 25th day of January, 1904, upon the verdict of a jury for $2,500, and.also from an order entered in said clerk’s office on the 13th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 10th day of July, 1903, upon the decision of the court rendered after a trial at the Erie Special Term dismissing the plaintiff’s complaint upon the merits..

Appeal by the defendant, Vingenzo Schiavi, from a judgment of the County Court of Steuben county in favor of the plaintiff, entered on the 14th day of October, 1903, convicting the defendant of assault in the first degree.

Appeal by the plaintiff, William Solomon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 2d day of February, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 25th day of February, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

<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 plaintiff, Daniel L. Mott, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Oneida on the 14th day of February, 1903, after a trial at the Oneida Trial Term as, by direction of the court, dismisses the second cause of action contained in the complaint.

Appeal by the petitioners, Emily J. Hollister and others, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 23d day of November, 1903, confirming an assessment for a local improvement.

Appeal by the defendant, Fred W. Wolf, from a judgment of the Supreme Court'in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 9th day of August, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 9th day of August, 1901, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, William Heyshem, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the- county of Steuben on the 3d day of February, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Joseph Hetzel, Jr., and by the defendant, Eliza H. Easterly, from a judgment of the Supreme Court in favor of the defendants Jay M. Easterly and others, entered in the office of the clerk of the county of Cayuga on the 9th day of August, 1902, upon the decision of the court, rendered after a trial at the Cayuga Special Term, dismissing the plaintiff’s complaint; also an appeal by the plaintiff, Joseph Hetzel, Jr., from an order of the Supreme Court,…

Appeal by the plaintiff, the John Single Paper Company, Limited, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Onondaga on the 20th day of January, 1903. upon the report of a referee dismissing the plaintiff’s complaint.

Appeal by the plaintiff, James S. Thompson, as permanent receiver of The Union Iron Works, Buffalo, N. Y., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 3d day of February, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Erie Trial Term.

Appeal by the defendant, The Fisher Tanning Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 9th day of January, 1903, upon the verdict of a jury for $3;000, and also from an order entered in said clerk’s office on the 9th day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Rochester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the… Held: and upon this appeal it is.'argued by respondent, that the White charter for cities of the second class (Laws of 1898, chap. 182, § 461, as amd. by Laws of 1899, chap. 581), dispensed with the necessity for this actual notice.and allowed such an action as this to be maintained when the defect complained of had existed for such a…

Appeal by the defendant, the American Telephone and Telegraph Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 10th day of July, 1903,, upon the decision of the court rendered after a trial at the Monroe Trial Term before the court without a jury.

Appeal by Mary E. Cooper, as executrix, etc., of Henry Campbell, deceased, from a decree of the Surrogate’s Court of the county of Oneida, entered in said Surrogate’s Court on the 28th day of October, 190.3, judicially settling the accounts of George R. Edgerton, as executor, etc., of Elizabeth S. Campbell, deceased, and refusing to require the said George R. Edgerton to set apart to Mary E. Cooper, as executrix, etc., of Henry Campbell, deceased, the exempt property to…

Appeal by the plaintiff, Ellen McCarthy, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 9th day of July, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Onondaga Trial Term.

Appeal by the plaintiff, Frank J. Saxton, as trustee in bankruptcy of Joseph Bastian, a bankrupt, from a judgment- of the Supreme Court .in favor of the defendants, entered in the office of the clerk of the county of Steuben on the 16th day of May, 1903, upon the decision of the court, rendered after a trial before the court without a jury at the Steuben Trial Term, dismissing the plaintiff’s complaint upon the merits.

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 Oneida on the 15th day of October, 1903, upon the verdict of a jury for $3,700, and also from an order entered in said clerk’s office on the 6th day of November,' 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Charles H. Merrick and another, as executors, etc., of James Tolman, deceased, from so much of a judgment of the Supreme Court in favor of the plaintiff and The Salt Springs National Bank of Syracuse, entered in the office of the clerk of the county of Onondaga on the 9th day of February, 1904, upon the decision of the court, rendered after a trial at the Onondaga Special Term, “as directs that the assignment to the Salt Springs National Bank of…

Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the Supreme Court in favor of the plaintiff in each of the above-entitled actions, entered in the office of the clerk of the county of Queens on the 2d day of November, 1903, upon the verdicts of a jury for $100 and $300 respectively, and also from an order in each action entered in said clerk’s office on the 4th day of November, 1903, denying the defendant’s motion for a new trial…

Appeal by the defendant, The City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Putnam on the 19th day of May, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 5th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.