Volume 97 — New York Appellate Division Reports

Appeal by the defendant, William L. Yunck, 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 14th day of November,. 1903, upon the verdict of a jury for $750, and also from an order-entered in said clerk’s office on the 16th day of November, 1903, denying the defendant’s motion for a new trial made upon the> minutes.

Appeal by the defendant, the Town of Wappinger, from a judg„. ment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of October, 1903, upon the decision of the court rendered after a trial at the Dutchess County Special Term.

<p>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 Kings on the 22d 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 18th day of September, 1903, denying the defendant’s-motion for a new trial made upon the minutes.</p>

<p>Encroachment of the wall of a building on an adjoining city lot — what case is not' covered by section 1499 of the Code of Civil Procedure requiring that an action for' its removal be brought within one year—marketable title.</p> <p>Section 1499 of the Code of Civil Procedure, which provides that an action to-recover possession of real property cannot he maintained “where in any city the real property consist of a strip of land not exceeding six inches in width, upon which there stands the exterior wall of a building erected partly upon, said strip and partly upon the adjoining lot, and a building has been erected' upon land of the plaintiff abutting on the said wall, unless said action be commenced within one year after the completion of the erection of such wall or within one year after the first day of September, eighteen hundred and ninety-eight,” only applies to a case where the owners of both pieces of land have-erected buildings whose walls abut one on the other, and who have thereby apparently made a practical location of the boundary line.</p> <p>It does not apply to a case where the wall of a building encroaches for a distance of three inches on the adjoining lot, upon which latter lot a buildinglias been erected in such a manner as to leave a. considerable vacant space-between the rear end of the building and the encroaching wall. In such a case the encroachment of the building will justify a contract vendee of the lot-upon which it encroaches in refusing to complete his purchase.</p>

Appeal by the defendant, the Automobile Touring Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 18th day of March, 1904.

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 1st day of March, 1904, denying the said defendant’s motion to change the place of trial from the county of Kings to the county of New York.

<p>Appeal by the plaintiff, James W. Corbally, 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 30th day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 8th day of April, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Tenement house in New York oity — one open space construed to constitute two outer courts, a street court and a ya/rd court.</p> <p>Where the plans for the erection of a tenement house in the city of Sew York provide for an open space or passageway, four feet in width, extending from the street the entire depth of the building, a distance of fifty-five feet, and that the wall o£ the building forming the side of such open space shall be thirty-six feet in height, such open space does not violate section 58 of the New York Tenement House Act (Laws of 1901, chap. 334, as amd. by Laws of 1903, chap. 179).</p> <p>The open space should be regarded either as a mere passageway and as such not subject to the restrictions of the statute, or else as two outer courts, one a street court, and the other a yard court, each twenty-seven feet and six inches in length, and hence not within the prohibition of the statute.</p>

<p>Presentation to the Appellate Division of charges against a city magistrate of the city of Mew York, pursuant to section 1401a of the revised charter of the city of Mew-York.</p>

Appeal by Franklin O. Case and another from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of Kings on the 3d day of July, 1903, upon the report of a referee, as dismissed the claim of the appellants for commissions claimed under an agency contract with the Republic Savings and Loan Association..

<p> Justice of the peace in the city of Mount Vernon —jurisdiction of over an action in which a non-resident is a party. </p> <p>The effect of sections 53 and 230 of the charter of the city of Mount Vernon (Laws of 1892, chap. 182) is to leave the city of Mount Vernon still a town, so far as the jurisdiction of its justices of the peace is concerned, so that that jurisdiction remained subject to regulation by any general legislation which might be enacted regarding the jurisdiction of justices of the peace in towns.</p> <p>Consequently, under subdivision 5 of section 2869 of the Code of Civil Procedure, a justice of the peace in the city of Mount Vernon has not jurisdiction of an action brought in his court by a resident of the city of New York, which adjoins the city of Mount Vernon, against a defendant, a resident of the city of Yonkers.</p>

<p>Appeal by the plaintiff, Alexander Wilson, 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 10th day of January, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

<p>Negligence—interference with an electric switchboard, by an employee engaged in other work, which results in injury to an employee having charge of an electric fan — assumption of risk—rules to prevent such an accident.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the plaintiff was employed as an assistant engineer in the clubhouse of the defendant corporation; that in one of the rooms of the house was a switchboard controlling an electric fan; that about two feet distant from this switchboard was another switchboard controlling apparatus for heating irons stationed in the laundry; that while the plaintiff had hold of one of the blades of the electric fan for the purpose of examining it, a laundry woman, evidently by mistake, went to the switchboard controlling the fan and set it in motion, causing three fingers to be taken from the plaintiff’s right hand. The plaintiff had worked in the clubhouse for about two weeks and was aware that the laundry women were in the habit of turning on the current from the switchboard connected with the laundry, and his testimony indicated that he was alive to the danger which might arise out of the likelihood of precisely such a mistake as occurred.</p> <p>■ Held, that as both the plaintiff and the laundry woman who started the fan had been intrusted with the operation of certain parts of the electrical machinery, the act of the laundry woman in operating the switchboard was that of a fellow-servant of the plaintiff, for which the defendant was not liable;</p> <p>That the plaintiff assumed whatever risk was involved in the action of the defendant in permitting the laundry woman to operate the switchboard connecting with the laundry;</p> <p>That negligence on the part of the defendant could not be predicated upon its failure to promulgate and enforce rules and regulations calculated to prevent the happening of such an accident, as the complaint contained no allegation of negligence in this respect, and for the further reason that the evidence failed to establish such a condition as made it legally incumbent upon the defendant to establish such rules prior to the accident.</p>

<p>Master and servant — obligation of the master to furnish to the servant a safe place for work—injury to an employee from slipping in a puddle of oil which caused her to thrust her hand between cog wheels — right of the jury to find the master liable for not furnishing a specified appliance—effect of the servant’s knowledge of the existence of the puddle of oil.</p> <p>Where in an action brought against a master to recover damages for personal injuries, sustained by a servant while in the master’s employ, the gravamen of the charge against the master is the failure to furnish the servant with a reasonably safe place in which to do the master’s work and reasonably safe appliances to work with, the actual condition of the place and appliances may be shown; the presence or absence of safeguards calculated to protect the employee from injury, and every fact relevant to the question whether the place and appliances, as the servant was required to use them, were or were not reasonably safe.</p> <p>In such an action it appeared that, while the plaintiff was at work upon a machine, she slipped in a puddle of oil which had accumulated upon the floor, in consequence of which her hand was thrust between the cog wheels of the machine and injured.</p> <p>The plaintiff testified that she had not seen the puddle of oil before the accident; that it was eight or ten inches “ big,” and that the oil came from underneath the machine and was directly in the place where she had to step while performing her work. The plaintiff’s sister testified that she had noticed the accumulation of oil and had notified the defendant’s assistant foreman of it about a week before the accident.</p> <p>Held, that it was proper for the court to charge as follows; “ If you think that a drip pan underneath this machine was necessary, in view of all the existing conditions, to render it a reasonably safe machine to work upon and work with, then you may find the defendant liable because it did not furnish such an appliance or something of that sort, but only if you think that such an appliance was necessary to make the machine, on the whole, a reasonably safe machine to work with.”</p> <p>That, in view of other instructions which the court had given the j ury on the question of the plaintiff’s contributory negligence and her assumption of the risk, the refusal of the court to charge that the plaintiff could not recover if she knew of the presence of the oil before the accident and did not tell the defendant, did not constitute error.</p>

<p>A hypothetical defense in a pleading is not demurrable — an answer in an action against an accommodation indorser of a note diverted from its purpose must specify when the plaintiff became aware thereof— the accommodation indorsement before delivery need not be alleged to have been made to give the maker credit with the payee</p> <p>The complaint in an action • alleged the making and delivery of a promissory note, and that, prior to the delivery of such note, it was first indorsed by the defendants’ testator and then by the plaintiff for the accommodation of the maker. It then alleged presentment, non-payment and notice thereof to each of the indorsers; that thereafter the payee sued the plaintiff as indorser- of the note, and that -notice of such action was given to the defendants, and that such action resulted in the recovery of a judgment for the amount of the note, interest and costs against the plaintiff, which was paid by her. The action was brought to recover from the defendants on their testator’s indorsement the sum so paid by the plaintiff.</p> <p>The answer contained a denial and then set fbi'th as a separate defense that “if the said note set forth and described in the complaint was ever indorsed by defendants’ testator,” it was indorsed by him under circumstances thereinafter stated, which circumstances would show a diversion of the note. The only averment that the plaintiff ever had any notice of this alleged diversion consisted in the words at the conclusion of the statement, “of all of which the said Kate A. Weichel (the payee) and the said plaintiff and each of them were fully aware.”</p> <p>Held, that the hypothetical clause in the separate defense did not render such defense demurrable, as such hypothetical clause denied nothing and might, therefore, be regarded as mere surplusage or redundant matter which could be struck out on motion;</p> <p>That said defense was, however, demurrable upon the ground that it did not specify when the plaintiff became aware of the alleged diversion attempted to be set forth in said alleged defense;</p> <p>That the rule announced in Phelps v. Vischer (50 N. Y. 69), to the effect that an accommodation indorser of a promissory note is not liable to the payee thereof unless it is alleged and proved that the accommodation indorser indorsed the ' note for the purpose of giving the maker credit with the payee, has been abrogated by section 114 of the Negotiable Instruments Law, which provides that where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser to the payee and to all subsequent parties if the instrument is payable to a third person.</p>

<p>Appeal by the plaintiff, George Cheyne, from a judgment of the County Court of Kings county, entered in the office of the cleric of the county of Kings on the 16th day of November, 1903, upon the dismissal of the complaint by direction of the court after a trial before the court and a jury.</p>

Appeal by the defendants, Vincenzo Savarese, 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 Westchester on the 26th day of June, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the lltli day of July, 1903, denying the defendants’ motion for a new trial made upon the minutes.

<p> Pleading—a failure to deny that a checjc was given for value precludes proof of an affirmative defense or counterclaim inconsistent with such admission. </p> <p>The complaint in an action brought to recover the amount of a clitick alleged that the defendants, for value received, made and delivered the bank check to one Johnson; that Johnson indorsed the check and delivered it together with a written assignment thereof to the plaintiff, and that the defendants had stopped payment upon the check.</p> <p>The only denial contained in the answer related to the allegation of the complaint in reference to the assignment of the check to the plaintiff.</p> <p>The answer set up, as a separate and distinct defense and as a counterclaim, the transaction out of which the Check originated, and there were some allegations which might, if established, tend to show that fraud had been practiced upon the defendants by the plaintiff's assignor.</p> <p>Reid, that the defendants having admitted, by failing to deny it, the allegation of the complaint that the check was given to the plaintiffs assignor forwalue, were precluded from proving the matters set forth in the separate defense and counterclaim as such matters were inconsistent .with the admission-.</p>

<p>Appeal by the plaintiff^ Daniel Breslin, from-a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 29th day of October, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

<p>Attachment — the removal of a manufacturing plant to another State — it is not in itself evidence of an attempt to defraud creditors — the court cannot amend an affidavit — it may amend a warrant and allow a new affidavit to be substituted.</p> <p>The fact that a solvent domestic corporation is about to remove its manufacturing plant from the State of New York to the State of New Jersey is not of itself sufficient to entitle a creditor of the corporation to a warrant of attachment against it, on the ground that its purpose in so doing is to hinder, delay and defraud its creditors.</p> <p>Upon the hearing of a motion to vacate a warrant of attachment the court has not power, under section 723 of the Code of Civil Procedure, to amend the affidavits on which the warrant of attachment was based.</p> <p>Semble, that upon such a motion the-court may amend the warrant of attachment to conform to the affidavits, or may allow the affidavits to be withdrawn and new ones substituted therefor.</p>

Appeal by the plaintiff, John McNamara, from a judgment of the County Court of Nassau county, entered in the office of the clerk of the county of Nassau on the 19th day of December, 1903, upon an order entered in said clerk’s office on the 19th day of December, 1903, affirming a judgment of a justice of the peace of Nassau county in favor of the defendant, entered on the 19th day of May, 1903, sustaining a demurrer to the plaintiff’s complaint.

<p>Appeal by Leopold Wallach and another, constituting the firm of Wallach & Cook, 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 23d day of February, 1904, denying their motion for an allowance of $15,000.</p>

Appeal by the defendant, The City of Poughkeepsie, from a judgment of the County Court of Dutchess county in favor of the plaintiff, entered in the.office of the clerk of the county of Dutchess on the 22d day of December, 1903, upon the verdict of a jury for $2,000, and also from an order bearing date the 21st day of December, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

Appeal, by the defendant, The Village of Port Chester, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 10th day of January, 1903, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 7th day of February, 1903, denying the defendant’s motion -for a new trial made upon the minutes. .■

Appeal by the defendant, Michael J. Kennedy, commissioner of p&,rks of the city of Hew York for the boroughs of Brooklyn and . Queens, 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 2d day of Jüne¿ 1904, granting a perenap* tory writ of mandamus commanding him to issue a'permit to the Brooklyn.

<p>Appeal by the defendant, Rose Mandelbaum, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 31st day of March, 1904.</p>

Appeal by the defendant, The Moore Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the '25th day of January, 1904.

Appeal by the plaintiff, Daniel Lee, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, entered on the 27th day of February, 1904.

Appeal by the plaintiff, Patrick Cummings, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th 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 Caroline Alheidt and others from so much of a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate's Court, on the 1st day of July, 1903, as directs that the said executor, John H. Steenwerth, pay certain claims of Louisa D. Pfuderer,, a creditor, and also the. costs of her attorney.

Appeal by the plaintiff, Nils G. Kant, 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 30th day of March, 1904, taxing the costs and disbursements of a referee appointed to sell real property in a foreclosure action.

Appeal by the plaintiff, James Camardella, doing business under the name of The Atlantic Contracting Company, from a judgment of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, entered on the 2d day of March, 1904, dismissing the plaintiff’s complaint.

Appeal by Joe Kray 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 8th day of July, 1903, appointing a referee, and also from an order entered in said clerk’s office on the 12th day of August, 1903,. revoking and canceling liquor tax certificate No. 3,614 issued to him.

Appeal by the contestant, Robert E. Hopkins, Jr., an infant, by Joseph W. Middlebrook, his special guardian, from an order of the Supreme Court, made at the Westchester Trial Term .and entered in the office of the clerk. of the county of Westchester on the 21st day of April, 1903, denying his- motion to set aside the verdict of a jury and also for a new trial.

Certiorari issued out of the Supreme Court and attested on the 11th day of December, 1903, directed to Tredwell Abrams and others, composing the board of town auditors of the town of Hemp-stead, commanding them to certify and return to the clerk of the county of Nassau all and singular their proceedings had in rejecting a claim of the relator.

<p>Appeal by the plaintiff, Eliza Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 21st day of November, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.</p>

Appeal by the defendant, the Interurban Street Railway Company, from so much of an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 30th day of March, 1904, as denies certain ' demands contained in the defendant’s notice of motion for a bill of particulars. •

<p>Appeal by the defendant, William W. Paten, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiffs, entered on the 4th day of April, 1904, and also from an order bearing date the 4th day of April, 1904, denying the defendant’s motion to vacate an attachment.</p>

<p>.Negligence—injury from 'a fall upon the stairs of a department store because of a customer stepping upon a feather duster concealed by a dust cloth—proof of negligence and contributory negligence — care required of the owner of the store and of the customer—proof of impairment of sight and hearing under an allegation that . plaintiff “was seriously and permanently bruised and injured”—physician’s testimony that the injury was a sufficient cause of the customer's condition and that her vision was not “likely" to improve ^verdict of $9,000 sustained.</p> <p>In an action brought to recover damages for personal injuries, it appeared that while the plaintiff, a customer, was descending the stairs in the defendant’s department store, she looked down and saw something that appeared like a piece of crumpled wrapping paper; that she stepped to the.side of it thinking the path was clear there, but that she stepped upon the round handle of a feather duster which had been concealed by what appeared to be a piece of crumpled wrapping paper, but was actually a dust cloth.</p> <p>The evidence tended to show that the feather duster had been left upon the stairway by one of the defendant’s employees, whose duty it was to clean the stairs daily. -</p> <p>Held, that the evidence justified the jury in finding that the defendant was guilty of negligence and that the plaintiff was free from contributory negligence;</p> <p>That it is the duty of the owner of a department store, towards his customers, to exercise reasonable care to keep the stairways therein, which the public is tacitly invited to use, safe for the purposes of such use;</p> <p>That it was not the plaintiff’s duty to examine the very spot upon which she intended to place her foot, and that she had a right to assume that the way was safe for her passage;</p> <p>That under the allegation of the complaint, that the plaintiff “was seriously and' permanently bruised and injured,” the plaintiff was entitled to introduce evidence tending to show an impairment of sight and hearing by reason of the accident; •</p> <p>That the plaintiff was also entitled to show by physicians that her' condition at the time of the trial could have resulted from the fall which she experienced, and that such fall.and the injuries which she sustained were a sufficient and competent cause of such condition;</p> <p>That a medical expert having in answer to the following question: “In your opinion is that vision permanently impaired in that eye, and will therfe be an improvement of the present condition?” stated, “I don’t think it is likely after this length of time,” the court properly refused to strike out the answer under the objection that the use of the word “likely ” rendered the evidence indefir nite and speculative; that the word “likely ” had the same force as “reasonably probable.”</p> <p>What proof as to injuries is sufficient to sustain a verdict for §9,000, considered.</p>

Appeal by the plaintiff, John W. Daly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Westchester on the 20th day of May, 1903, upon the decision of the court rendered after a trial at the Westchester Special Term dismissing the plaintiff’s complaint upon the merits.

Appeal by the defendant, The Interurban Street Railway 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 18th day of January, 1904, vacating an order entered herein on the 17th day of November, 1903, requiring the plaintiff to file security for costs and permitting the plaintiff to prosecute this action as a poor person.'

Appeal by the plaintiffs, James W. Gillies, individually, and James W. Gillies and others, as executors, etc., of John W. Gillies, deceased, and as trustees,; etc., 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 '11th day of November, 1902, upon the decision of the court rendered after a trial at the Queens County Special Term, a jury having been waived, dismissing the plaintiffs’ complaint…

Appeal by Joseph H. Smith and another from so much of an order of the Supreme Court, made at the Kings.

<p>Hempstead bay and the Post Lead tract—title thereto—general and particular description in a deed—a partition suit is a proceeding in rem—a judgment when not conclusive in another action.</p> <p>In an action in which the plaintiff and a defendant, Carman Frost, claimed to he the owners of practically all of Hempstead bay from the Oyster bay line to a line about 7,000 feet east of the western boundary line of the town of Hemp--stead, and also of a tract of land known as Post Lead, winch is located in Hempstead bay between the western boundary line of the town of Hempstead and the western boundary line of the first-mentioned tract, it appeared that the plaintiff’s title was founded upon a deed to one Hicks dated June 7,1725, which purports to convey all the “ right, title, interest, part or share ”, of the grantors “belonging to a beach lying on ye south side of ye island in ye bounds of Hempstead aforesd att a place called Rockaway, bounded * * * west by Whelses (Wells’) Line, south by the sea, east by Brockelface Gutt and north by ye Great Greek, togather with all ye marshes and other priviledges thereunto belonging or in any wise appertaining; ” that in 1802 one Fosdick, at the request of parties claiming under the Hicks deed, made a survey and map of a tract-of l,504j- acres of land oh the west side of the town, which was bounded on the west by Wells’ line, on the south by the sea, on the east by East Rockaway inlet and on the north by Great creek.</p> <p>In 1878 an action to partition the premises was commenced, the complaint in which action described the property sought to be partitioned as it was described in the deed executed to Hicks in 1725 and also “more particularly as follows: ” Then followed the description of the Fosdick survey of 1802 giving the name of the inlet on the east as “ Hog Island or Bast Rockaway Inlet and formerly (known) as Brockleface Gut.” The north boundary was given as Great creek and the southwesterly boundary as Brower’s bay and Crooked creek.</p> <p>The complaint also alleged that the parties owned no other land in common and this allegation was'not denied. The land was conveyed to the'purchaser at the partition sale by the same description as that contained in the complaint and judgment.</p> <p>Thereafter, one Lawrence and others, who had succeeded to the title of the- purchaser at the partition sale, brought an action against the town of Hempstead to quiet the title to the property and to restrain the town from exercising acts of ownership over the same. The complaint in such action described the property as it was described in the partition action. The final judgment in that action adjudged the plaintiffs to be the owners and entitled to the possession of the premises described in the complaint, and the town was restrained from trespassing thereon or attempting to take possession thereof. The judgment contained the same description of the premises as was set forth in the complaint and judgment in the partition action.</p> <p>November 21, 1887, prior to the commencement of the action against the town, the said Lawrence and the other owners conveyed to Carman Frost the property called Post Lead. On July 15, 1889, during the pendency of the action against the town, the same parties executed and delivered to Carman Frost, who was a party to the action, a deed which purported to convey the premises which comprise all of Hempstead bay from the eastern boundary line of the town to a line 7,000 feet east of the western boundary.</p> <p>December 6, 1894, the said Carman Frost conveyed to the plaintiff in the present action a one-third interest in the premises which had been conveyed to him by the two last-mentioned deeds.</p> <p>The plaintiff's main claim was, that Brockleface gut, which was the easterly boundary of the property conveyed to Hicks in 1725, is not identical with East Rockaway inlet as shown upon Fosdick’s survey, but was an inlet near the boundary line between Hempstead and Oyster bay, and that the property conveyed to Jacob Hicks was not only the 1,504¿ acres surveyed by Fosdick, but included all the lands, salt marshes and beaches within Hempstead bay to the Oyster bay line.</p> <p>Held, that the plaintiff had failed to establish liio claim;</p> <p>That, even if the plaintiff’s claim was in fact correct, the effect of the “more particular ” description in the complaint in the partition action was to limit the jurisdiction of the court to the property therein described, ¡larticularly as the allegation of the complaint that the parties owned no other premises in common was not denied;</p> <p>That a suit in partition is a proceeding in rem and that the jurisdiction of the court is confined to the property described in the complaint;</p> <p>That, assuming that the parties to the partition action owned to the Oyster bay line, there was no provision of law which prevented them from maintaining an action to partition a portion of the land;</p> <p>That, at the date of the Hicks deed, Rockaway was a term which applied to one of the southern necks of the town of Hempstead and not to the whole of the southern necks of such town;</p> <p>That the name Brockleface gut was not applied to any main inlet of the bay;</p> <p>That the decision in the action brought by Lawrence against the town of Hemp-stead was not controlling in the present action upon the question of the location of Brockleface gut, for the reason that the situation of upland and salt marshes and beaches developed in Lawrence v. Hempstead was different from that developed in the present action;</p> <p>That the plaintiff was not entitled, under the authority of Lawrence v. Hemp-stead, to a decree in his favor,with respect to that portion of the premises in question (exclusive of the Post Lead tract), which was included in the description contained in the judgment rendered in the action of Lawrence v. Hempstead;</p> <p>That this portion of the premises other than the Post Lead tract having been purchased by the plaintiff a*nd his grantor during the pendency of the action of Lawrence v. Hempstead, if there was any interference by the town with that portion of the property or any violation of the judgment rendered in Lawrence v. Hempstead, the plaintiff’s remedy was by a proceeding to enforce such, judgment;</p> <p>That, as Lawrence had no interest in the Post Lead tract at the time he commenced his action against the town of Hempstead, this fact ■would be a good defense to any application by the plaintiff to enforce the judgment rendered in that action, so far as it affected the Post Lead property;</p> <p>That the plaintiff was entitled, under the authority of Lawrence v. Hempstead, to a decree in his favor with respect to the Post Lead tract of the same character as that awarded in the Lawrence case.</p>

Appeal by the plaintiff, Charles M. Sohreyer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 20th day of June, 1903, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 9th day of July, 1903, denying the plaintiff’s motion for a new trial made upon the minutes. .

<p>Socialist Labor party — action against its treasurer — liability of the members thereof for wages dm to a linotype operator employed on the newspaper known as the Daily People.</p> <p>The Socialist Labor party is a political party which has a sufficient following to entitle it to a place upon the official election ballots. Aside from the qualified membership m the party, Which may be assumed to attach to the mere voting of the ticket nominated by it, it has a separate and distinct party organization modeled in the form usually adopted for the creation of co-operative societies, •with a formal constitution providing for national, state and local bran'ches. The members of the party who join this organization are required to pay monthly dues and to submit themselves to the jurisdiction and the discipline of the association.</p> <p>The constitution provides that a newspaper known as the Daily People, published in the city of New York, shall be one of the official party organs, to be managed by a board of trustees consisting of three members of the party, to be elected by the national convention, but whose election must be “ specifically approved by a general vote of the whole party,” and which board “ shall hold the property of the official party organs, in trust, subject to the constitution and resolutions of the party affecting their management.”</p> <p>The newspaper was supported by a fund acquired from voluntary contributions, and it did not appear that the board of trustees in charge of the newspaper were authorized to contract debts in excess of such fund. field, that a person, who, under the employment of a member of the board of trustees in charge of the newspaper, had rendered services as a linotype operator in the printing of the newspaper, having contracted with reference to, and having expected to receive his wages from such fund, could not maintain an action to recover the value of such services against the treasurer of the Socialist Labor party under the provisions of section 1919 of the Code of Civil Procedure which authorizes the maintenance of a suit against the president or treasurer of an unincorporated association consisting of seven or more persons •upon any cause of action for which the associates are personally liable to the plaintiff;</p> <p>That it could not be said that it was within the contemplation of the members of the organization that they should be individually liable for debts contracted in the publication of the newspaper.</p>

Appeal by the defendants, Andrew M. Kenlon and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of October, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendants’ separate demurrers to the plaintiff’s complaint.

Appeal by the defendant, Anton Lampel, 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 2d day of January, 1904, setting aside the verdict of a jury in favor of the defendant and granting the plaintiff’s motion for a new trial in ■each of the above-entitled actions.

Appeal by the defendant, Louise Schneider, 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 27th day of January, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, establishing the plaintiff’s title to an interest in certain real property and directing an accounting before a referee.

Appeal by tlie defendant, Anthony Saladino, front a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, entered on the 17th day of December, 1903.

Appeal by Marietta L. Donohue, individually, and Marietta L. Donohue and others, as executors, etc., of George W. Donohue, 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 14th day of September, 1903, as adjudges that the paper writing purporting to-, be the codicil to the last will and testament of George W. Donohue, deceased, and propounded for probate, is not a valid codicil to said will, that the…

<p>Appeal by Jacob Kelson and others from a decree of the Surrogate’s Gorart of the county of Kings, entered- in said Surrogate’s-Court on the 29th day of October, 1903, refusing to admit to probate a paper propounded as the last will and testament of Samuel Nelson, deceased.</p>

<p>Appeal by the defendant, Noah Loder, Jr., 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 26th day of October, 1903, upon the verdict of a jury for $800, and also from an order bearing date the 5th day of December, 1903, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.</p>

<p> Insurance company—service of process upon the company by delivery thereof to the State Insurance Commissioner of a foreign State the right so to do held to continue while any. obligation, of the insurance company existed in that State—effect of its attempted revocation—power of (me State to impose conditions upon the right of a foreign insurance company to transact business therein. </p> <p>A statute of the State of North Carolina' (Public Laws .of 189'9,’chap. 54) provided that no foreign insurance company should do business in that State until “ it . shall, by a duly executed instrument filed in his office, constitute and appoint the Insurance Commissioner or his successor its true and lawful attorney upon whom all lawful processes in any action or legal proceeding against it may be seryed, and therein shall agree that any lawful process against it which may he served upon its said attorney shall be of the same force and validity as if served on the company, and the authority thereof shall continue in force irrevocable so long as any liability of the company remains outstanding in this Commonwealth.”</p> <p>April 13, 1899, the Mutual Reserve Life Insurance Company, a life insurance ' corporation organized and existing under the laws of the State of New York, and which, for many years prior to 1899, had transacted a regular insurance, business in the State of North Carolina, filed an instrument appointing the Insurance Commissioner of that State its true and lawful attorney, “upon whom all lawful processes” might be served, following the language of the statute and containing the provision that “this authority shall continue in. force and irrevocable as long as any liability of the said company remains outstanding in the said State.”</p> <p>May 17, 1899, the insurance company attempted to withdraw and revoke its appointment of the Insurance Commissioner and his successor as attorney, and on the next day withdrew its agents from the State of North Carolina, closed its offices there and wrote no more new policies therein. It continued, however, to collect and receive premiums on its North Carolina policies through the mail and to pay losses occurring under said policies in the same way. On one occasion it sent an agent into that State to adjust particular losses. On another occasion it designated a bank within the State to collect premiums upon certain policies and pay death losses thereon; On a third occasion it ’ employed an attorney within the State of North Carolina and authorized him to compromise a disputed claim, and on a fourth occasion it issued, a new policy to a policyholder in that State on the surrender of his firsé policy.</p> <p>After the revocation four separate contracts of insurance, made by the insurance company with citizens of States other than the State of North Carolina, were assigned to residents of the State of North Carolina. The assignees of the contracts brought actions against the insurance company thereon in the State of North Carolina, and served the process upon the Insurance Commissioner of that State. At the time of the service of such process, the insurance company had outstanding liabilities in the State of North Carolina upon policies which it had issued to citizens of that State.</p> <p>Held, that such service of process conferred jurisdiction on the North Carolina courts to render judgment against the insuranceyompany;</p> <p>That the attempted revocation of the appointment of the Insurance Commissioner was not effective, even in relation to actions brought against the insurance company growing out of policies actually written or contracts actually made in States other than North Carolina;</p> <p>That so long as any liability of the insurance company remained outstanding in the State of North Carolina, service of process in any action in that State might be made upon the insurance company by its delivery to the Insurance Commissioner of that State;</p> <p>That a State may lawfully prescribe any terms whatsoever as a condition precedent to allowing a foreign corporation to transact business within its borders.</p> <p>Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.</p>

<p>Devise to one,.with devise over in case of his death without issue — the devise over refers to a death indhe lifetime of the testator—the rule will yield to circumstances indicating a different intention.</p> <p>It is the general rule, where real estate is devised, in terms denoting an intention that the primary devisee shall take a fee on the death of the testator, followed by a devise over in case of his death without issue, that the will must be construed to refer to the primary devisee’s death without issue during the lifetime of the testator, and if the primary devisee survives'the testator he takes an absolute estate in fee simple.</p> <p>Semble, however, that this general rule will yield'to any fact or circumstance indicating a different intention.</p> <p>Under a will providing, “ I give and devise my house and lot .* ■* * to the aforesaid Ann Mary Sykes, and if the said Ann Mary Sykes dies without issue alive, then the aforesaid house and lot shall he sold ” and the proceeds divided, etc., the said Ann Mary Sykes, who survived the testator, takes a fee simple absolute in the premises in question.</p>

Appeal by the defendant, The Empire State Surety 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 25th day of November, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, Benjamin E. Sullard, from an interlocutory judgment of the Supreme Oourt in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of October, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, directing the defendant to deliver to the plaintiff certain books, papers and documents, and restraining the defendant from the Use thereof. •

Appeal by the plaintiff, Adam A. Long, from a judgment of the County Court of Monroe county in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 19th day of December, 1903, upon the decision of the court reversing a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff, entered on the 13th day of February, 1903.

<p> Recovery by the holder of a note diverted by they payee, when proper—effect of a request for the direction of a verdict and on its denial that specific questions of - fact be submitted to the jury. </p> <p>If a promissory note has been diverted or negotiated in violation of an -agreement under which it was given, such negotiation constitutes a breach of faith, amounts to a fraud upon the maker, and when that fact appears the holder cannot recover upon it against the maker without showing that he received it in the ordinary course of trade for a valuable consideration and without knowledge of such agreement.</p> <p>The general rule is that where, upon a jury trial, both parties ask for the direction of a verdict, such action amounts to a submission of the whole case to the trial judge and his decision upon the facts has the same effect as the verdict of a jury. Such rule, however, does not obtain where the party whose request for the direction of a verdict is denied seeks to go to ■ the jury upon questions of fact which he specifies.</p>

<p>Negligence —promise of a foreman to notify an employee of a railroad company of the approach of a train — the railroad company is not bound thereby — duty of such-company.</p> <p>A promise made by a section foreman in the employ of a railroad company, to a. member of the gang of men at work under him, to give such member, who-was engaged in sweeping a switch, warning of the approach of trains, is not-to be construed as a contract binding, upon the railroad company, in the-absence of evidence that the foreman had authority to make such a contract, but rather as a direction by the foreman with respect to a detail of the work within the charge of the foreman; consequently, the negligent failure of such-foreman to perform such promise, in consequence of which the workman to-■whom it was made sustains personal injuries, is the negligence of a fellow-servant, for which the railroad company is not liable.</p> <p>In such a case the railroad company performs its duty when it furnishes the-injured workman with a reasonably safe place in which to work, proper-appliances and a competent foreman.</p> <p>Spring and Hiscock. JJ., dissented.</p>

<p>Surrogates Court—jurisdiction to determine the liability of a testatrix as the administratrix of an estate—commissions on real property—payment óf illegal dbbts of honor — a gift of income without any limitation as to time creates an estate in fee — void accumulation of income — will — when a child takes property on coming of age, or, if it dies, its children take <— when a limitation as to a death while married applies only if there be no children.</p> <p>Under section 2606 of the Code of Civil Procedure, where all 'the parties interested are before the court, a surrogate has jurisdiction, upon an executor’s accounting, to determine his testatrix’s liability as administratrix of an estate, and to determine what payments have been made upon such liability.</p> <p>When an allowance of commissions to an executor and trustee, upon real estate transferred by him to a beneficiary under the will, is unauthorized, considered.</p> <p>A widow, who, as administratrix of her husband’s estate, pays her husband’s illegal debts of honor, is not entitled to credit for such payments upon her accounting, if objection thereto be made by her daughter.</p> <p>The will of Mary Emily Hull provided as follows: “Seventh. All the rest, residue and remainder of my said property, both real and personal and wherever situate, I give, devise and bequeath to James Hull in trust, nevertheless, to invest and keep the same invested, collect, all the income thereof, and from and out of the. income of all my said property my said executor and trustee is hereby directed to pay to my' daughter, Helgn Maxwell Bushby, the annual sum of twelve hundred dollars, payable in monthly installments; said executor and trustee is directed to take proper care of all my real estate, keep the same in good repair, and insured, pay the taxes and assessments thereon, and do any and all acts necessary and proper in the care thereof. Should the income of all my property exceed the amount necessary to pay all annuities and charges thereon, I direct that the surplus shall be accumulated in the hands of my said executor and trustee, and by him, at his discretion, paid to my daughter, Helen Maxwell Bushby, the same as the above provision of twelve hundred dollars.”</p> <p>Held, that as the provision for the payment of the income of the residuary estate to Helen Maxwell Bushby was not limited to the latter’s life, or in any other way, and that as the will failed to provide for any remainder in the residuary estate, and as there was a strong inference that the entire residuary estate was intended for the benefit of the said Helen Maxwell Bushby, the latter took the residuary estate absolutely and not simply the income thereof for life with remainder at her death to those who would take in the event of the testatrix having died intestate;</p> <p>That the provision for the accumulation of the income was void.</p> <p>The will of Tobias Frere gave a portion of his residuary estate to his executors in trust, ‘ ‘ to pay the annual income therefrom to my daughter Eliza Rebecca Bushby, wife of Stephen Bushby, during her life and for her sole and separate use during any coverture and so that she may not have power to alienate or charge the same or any part thereof by way of anticipation, and after her decease to be possessed of the same fifth part upon trust for such child or children of the said Eliza Rebecca Bushby as shall attain the age of 21 years, or dying under that age shall leave issue; or being a daughter or daughters shall attain that age or marry; and if more than one, in equal shares, and as to the share of any daughter for her sole and separate use, and in case there shall be no such child and the said Eliza Rebecca Bushby shall be a widow at the time of her decease, upon such trusts for the benefit of any person or persons as she shall by her last will direct or appoint, and in default of and subject to any such appointment, or in case she shall be married at the time of her decease, upon trust for the person or persons who at the time of her decease would, under the statutes for the distribution of the estates of persons dying intestate be entitled to the same in case she had died possessed thereof intestate and without having been married, and if more than one, in the like shares.”</p> <p>Eliza Rebecca Bushby mentioned in the will died subsequent to the testator, being, at the time of her death, the wife of one Bauldrey, who still lives. She also had a son who died intestate after attaining the age of twenty-one years, and who left a widow and two daughters.</p> <p>Held, that in case Eliza Rebecca Bushby was survived by a child who attained the age of twenty-one years, or who, dying under that age, left issue, the property should go to such child or to its issue, if the child should be dead; That the provision as to the death of Eliza Rebecca Bushby while married was upon condition that there should be no child or grandchild living.</p>

Appeal by the defendants, John J. Morgan, supervisor, and others, composing the town board and board of town auditors of the town of Fort Edward, H. Y., from an order of the Supreme Court, made at the Warren Special Term and entered in the office of the clerk of the county of Washington on the 25th day of January, 1904, directing that a peremptory writ of mandamus issue compelling the defendants to convene and audit and allow certain claims, and also from an order made at…

Appeal by the defendant, The Village of Sidney, N. Y., from an order of the County Court of Delaware county, entered in the office of the clerk of the county of Delaware on the 29th day of February, 1904, granting the plaintiff leave to serve an amended complaint.

Appeal by the plaintiff, William W. Wheeler, from a judgment of the Court of Claims of the State of New York in favor of the defendant, entered in the office of the clerk of said court on the 23d day of April, 1903, dismissing the plaintiff’s claim.

<p>Removal from, office, where such, action is induced by the threat of another officer to resign — certiora/ri — allegations of the petition, not denied, in the return, a/re admitted.</p> <p>Where the return made to a writ of certiorari, issued to review the action of the commissioner and deputy commissioner of the department of water supply, gas' and electricity of the city of New York, in removing tho relator from the position of financial clerk in such department after a trial upon charges, does not, either expressly or impliedly, deny an allegation of the petition for the writ, that the determination that the relator was guilty of the charges, preferred against him was made, after the commissioner of the department had upon an examination of the evidence taken at the relator’s trial declared the charges to be ridiculous and frivolous, under the influence of a threat made by the registrar of the department who preferred the charges against the relator, and who was sworn upon his trial, to resign his position unless the relator was found guilty and removed, the determination of the relator’s guilt will be annulled and he will be restored to his position.</p> <p>Under section 3138 of the Code of Civil Procedure, which provides that a certiorari shall be heard “ upon the writ and return, and the papers upon which the .writ was granted,” while the statements in the return to a writ of certiorari import absolute verity, yet, when it is silent as to material allegations of fact contained in the petition, the presumption is that the officers making the return intended to admit such allegations.</p>

Appeal by the defendant, Welz & Zenveck/ffom 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 27th day of March, 1903,, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 26th day of March, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Tax — the Legislature cannot impose a transfer tax on one in whom title has vested prior to the enactment of the statute.</p> <p>December 20, 1878, Hector Craig executed a deed of all bis property to certain trustees, which deed recited that it was executed in contemplatipn of the grantor’s pending marriage with Mary W. Darrach, and for the purpose of making provision for her in case the marriage took place and she survived him as his widow, and of otherwise providing for the management and disposition .of his estate. By the terms of the deed the net income of the property conveyed was to be paid to the said Hector Craig during his lifetime, and at his. death the principal was to be paid over to his widow' and the issue of the marriage in specified proportions. The contemplated marriage took place prior to. the enactment of the first statute imposing a tax on inheritances.</p> <p>Craig died May 29, 1901, leaving a widow and children surviving him.</p> <p>Section 230 of the Tax Law (Laws of 1896,, chap. 908, as amd. by Laws of 1899, chap. 76) provides, “all estates upon remainder or reversion, which nested prior to June thirtieth, eighteen hundred and eighty-fine,'\mi, which will not come into actual possession or enjoyment of the person or corporation beneficially interested therein until after the passage of this act, shall be appraised and taxed as; soon as the person or corporation beneficially interested therein shall be entitled to the actual possession or enjoyment thereof.”</p> <p>Held, that, as the trust deed contained no reservation of a power of revocation, the interests of Craig’s widow and children in the remainder of the property conveyed under the trust deed accrued on the execution and delivery of that deed, irrespective of the time when possession of the estate was to be given, and that the Legislature had no power, by a statute subsequently enacted, to impose a transfer tax upon such interests1.</p>

Appeal by the defendants, La Marcus A. Thompson 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 June, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.

■ Appeal by the plaintiff, George Koeppel, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the defendant, entered on the 20th day off February, 1904»

Appeal by the plaintiff, Henry Held, from a judgment of the Municipal Court of the city ®f Hew York, borough of Brooklyn, in favor of the plaintiff, entered… Held: from a judgment of the Municipal Court of the city ®f Hew York, borough of Brooklyn, in favor of the plaintiff, entered on the 11th day of March, 1904, awarding to the plaintiff the sum of one dollar and twenty-nine cents damages and two dollars costs in an action upon a promissory note for three hundred dollars.

Appeal by the defendant, the Mew York City Railway Company, from a judgment of the Municipal Court of the city of Mew York, borough of Brooklyn, in favor of the plaintiff, entered on the 2d day of March, 1904,

<p> Payments from the court fund—order directing payment to one as administrator of a designated estate—a check directing payment simply to him as administrator should not be paid. </p> <p>Where an order made in an action directs the chamberlain of the city of New York to make certain payments to “ Ophelia B. Barber, as Administratrix, and Edgar L. Benjamin and Theodore H. Spratt, as Administrators of the goods, chattels and credits of Olin M. Barber, deceased, or Thomas G. Prioleau, their attorney,” a trust company, holding the fund out of which the payments are to be made, is justified in refusing to honor a check made by the city chamberlain payable to the order of “ Ophelia B. Barber, as administratrix, & Edgar L. Benjamin & Theodore H. Spratt, administrators, or Thos. G. Prioleau, z atty.”</p>

• Appeal by the defendant, Hoffman House, 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 27th day of June, 1902, ■upon the verdict of a jury for $2,500, and also from an order bearing date the 26th day of June,, 1902, and entered in said clerk’s ■office, denying the said defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Gillen, from á judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Kings on the 10th day of December, 1903, upon the dismissal of the complaint by direction of the court aftér a trial at the Kings County Trial Term.

Appeal by the relator, Adelphi College, 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 4th day of April, 1904, dismissing a writ of certiorari theretofore issued herein to review an assessment.

<p>Construction of a patent of September 20, 1697, from Governor Fletcher to William Nicoll — Bonkonkoma lake, Long Island, is covered thereby—a patent so far as it overlaps a previous one is void.</p> <p>September 20, 1697, Governor Fletcher issued to William Nicoll a patent “of a . Certaine Pareell of Vacant unimproved Land in the County of Suffolke in the Island Nassau Part adjoining to the Land of our. said Loving Subject and of Andrew Gibb Bounded Easterly by a Brooke or River to the Westward of a Point Called the Blew- Point knowne by the Indian Name of Manowtassquott and a North and by East Line from the Head of. said River to the Countrey Road thence along the said Road Westerly until it Bears North and by East to the head of Orawake River and thence by a South and by West Line to the head, of the said River and so Running Easterly along by the Lands of said William Nicoll and Andrew Gibb to the head of Connettquot and down the said River to the Sound and from thence along the Sound Easterly to the Mouth of Manowtassquott aforesaid together with a Certaine fresh Pond called Raconckomy Pond.”</p> <p>The granting clause provided that the patentee should have and hold “all the said Certaine Tract of Land and Raconckomy Pond aforesaid Limited and Bounded as aforesaid.”</p> <p>Held, that the ‘ ‘ Countrey Road ” referred to in the patent is the highway which at the present day runs east and west through Long Island and is known as the country road, or post road, and that the description contained in the patent embraced Lake Ronkonkoma, mentioned in the patent as Raconckomy pond; That the country road referred to in the patent was not a road which ran south of the said lake;</p> <p>That, considering the manner in which the description contained in the patent was drawn, the fact that the patent used the words, “together with a Certaine fresh Pond called Raconckomy Pond,” did not establish that the pond was not included within the bounds of the grant;</p> <p>That, so-far as the Nicoll patent overlapped the boundaries of previous patents-granted to other persons, it was void tinder the rule that the king cannot grant the same things in possession to one which he or his progenitors have granted to another.</p>

Appeal by the plaintiff, James E. York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 2d day of July, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing' the plaintiff’s complaint upon; the merits.

Appeal by the plaintiffs, Meyer Rosenstóck and another, from an interlocutory judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 20th day of May, 1904, sustaining the defendant’s demurrer to the plaintiffs’ complaint.

<p>Surety on a city coiitraetor’s bond—-he is released by a substantial alteration in the 7'oute of a tunnel contracted to be built — effect of the silence of the swety after knowledge of the change.</p> <p>Where .a city contractor, under the direction of the city engineer, and without the assent of the surety who guaranteed the faithful performance of the contract by the contractor, substantially alters the route of a tunnel constructed under the contract for a distance of 2,000 feet, such alteration releases the- surety from-liability on his contract, particularly where the surety did not learn of the change until more than 1,000 feet of the tunnel had been constructed upon the new route.</p> <p>Such a change is not a mere incident or detail of the work insufficient to release the surety.</p> <p>In such a case it is not incumbent upon the surety to speak when it learns of the deviation from the contract.</p>

Appeal by the plaintiff, Mary C. Ball, from -a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of ¡Richmond on the 29th day of May, 1903, upon the decision of the court, rendered ¡after a trial at the ¡Richmond Special Term, dismissing the plaintiff’s complaint upon the merits. ;

<p>Appeal by the plaintiff, Pietro Ganguzzá, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 24tli 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 plaintiff’s motion for a new trial made upon the minutes.</p>

<p>Motion by the plaintiff, Conrad Bogendoerfer, for a new trial upon a ease containing exceptions, ordered to be 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 Queens County Trial Term. '</p>

Appeal by the defendant, J. Henry Hager, as executor, etc., of Eliza Hager, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 26th day of December, 1903, upon the report of a referee.

•Appeal by the. plaintiff,'Obaáss • EL Holloway,, as administrator, etc., of August M. Holloway, deceased, from a judgment: of the Supreme Court in favor of the defendant,, entered ini the office of the clerk of the. county of Richmond .on the- Mtk day of October,, 19G3, upon- the- verdict of a. jury, and also, from: an order entered in said clerk’s;, office: on the 16th day of October, -190$:,, denying the plaintiff’s motion, for a, new trial made upon the minutes.

Appeal by the defendant, the City Trust Company of New York, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 13th day of January, 1904, upon the decision of the court, rendered after a trial at the Richmond Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

<p>Appeal by the plaintiff, Catherine L. Lyon, from a judgment of the Supreme Court in favor of the plaintiff as .against the defendant. Abel H. Gilbert, and in favor of the other defendants as against the plaintiff, entered in the office of the clerk of the county of Kings 'on the 18th day of August, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term, such appeal being-f rom that part of said -judgment which dismisses the complaint as to-the defendants other than the defendant Gilbert.</p> <p>Also an appeal by the defendant Abel H. Gilbert from the whole of said judgment.</p>

<p>Negligence — injury from the collision of a tugboat with a piledriver — when the captain of the tugboat and the'. injured person, ./employed on the piledriver, a/re fellow-servants—duty of the owner of the tugboat and piledriver in the premises —what duty may and what may not be delegated to an employee, how determined.</p> <p>A corporation was the owner of a piledriver, dredge and tugboat, and the* crews of these vessels were in its employ. The tugboat was used in moving the piledriver and dredge from place to place and in transporting supplies- and materials to them.</p> <p>On one occasion the captain of the tugboat, without having given any warning of its approach, propelled the tugboat against the piledriver and dredge and ■ thereby injured an employee of the corporation, who was engaged at the time* in placing a fender between the. piledriver and the dredge.</p> <p>, Held, that the captain of the tugboat and the injured employee were fellow-servants, and that the corporation was consequently not liable to the injured! employee;</p> <p>That the corporation discharged its duty toward the injured employee when it-furnished a competent captain of the tugboat and supplied him with the means and appliances of safe navigation, and that it was no part of the corporation’s duty to blow the whistle or to give any other warning of the approach of the tug;</p> <p>That persons engaged in the prosecution of a common enterprise, under the- .</p> <p>' employment of a common master, are to be deemed fellow-servants with, respect to all acts excepting those which the law imposes upon the master as. his specific duties;</p> <p>That when the specific act or omission which caused the injury is not the personal act or omission of the master himself, the question whether it can be imputed to him as occurring in the discharge of his duty as master is always-dependent upon a determination of its nature and character.</p>

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 7th day of May, 1903, upon the verdict óf a jury for $100, and also-from an order entered in ¡said clerk’s office on the 12th day of May,, 1903, denying the defendant’s motion for a- new trial made upon, the minutes.

<p> Negligence—injury from one street railway car while another was passing—right to a charge, when the motorman on one can' only was negligent, that negligence could not he predicated on the action of the other motorman. </p> <p>The complaint in an action brought to recover damages for personal injuries, sustained by the plaintiff, who, while crossing the tracks of the defendant’s street railway, was struck by an uptown car while attempting to avoid a downtown car which had passed behind her, alleged negligence on the part of ■ those in charge of hoth cars, hut no evidence was given upon the trial which would justify a finding of negligence on the- part of the motorman of the downtown car.. . '</p> <p>"The, defendant’s counsel asked the court to charge the jury that there is no evidence upon which they can predicate negligence on the part of the motor-, man of the car coming downtown.” This request was refused and an exception taken, the court saying: “ I think the whole case is for the jury.” The court added- that “both sides claim the injury was caused by the.uptown car.”</p> <p>that the court erred in refusing to charge as requested, as the effect thereof was to permit the jury to find that the injury occasioned by the uptown car might, under the proof, be attributed, iá pár,t at least, to negligence on the part of the motorman of the downtown car.</p>

Appeal by the defendant, Wilhelmina Harnischfeger, from a judg- ' ment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the plaintiff, entered on the 12th day of January, 1904, upon the decision of the court.

Certiorari issued out of the Supreme Court and attested on the 3d day of June, 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 Kings all and singular his proceedings had in dismissing the relator from the police force of the police department of the city of New York.

<p>Appeal, in the first above-entitled action, by the plaintiff, Annie Coleman, by her guardian ad litem, George Coleman, and in the second above-entitled action by the plaintiff, George Coleman, in each action 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 5th day of November, 1902, upon the dismissal of the-complaint by direction of the court after a trial at the Kings .County Trial Term, and also in each action from an order entered in said clerk’s office on the 30th day of October, 1902, denying the motion of.the plaintiff in siich action for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Stephen H. Grogan, 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 29th day of January,, 1904, upon the dismissal of the complaint by direction of the court, after a trial at the Kings County Trial Term.</p>

<p>Malicious prosecution — charge that a credit man had conspired with a salesman to . embezzle their employer's money —probable cause, when a question for the jury — motion for a nonsuit—grounds therefor not taken below cannot be urged on appeal—verdict for §35,000 held not to be excessive.</p> <p>In an action to recover damages for malicious prosecution the following facts appeared: The defendants were large wholesale dealers having over 18,000 customers. One Borchardt, who was á salesman in the defendants’ employ, was permitted by the defendants to collect money from their customers from time to time and to turn it over to the defendant's. In November, 1901, it was discovered that Borchardt had embezzled over §34,000. It was the custom of the ■defendants to send out monthly statements to their customers with the request that the customers report any discrepancies in the account to the firm direct and not to the agents through whom such customers dealt. Borchardt’s embezzlement extended over a period of at least three years and it was made possible by the suppression of the monthly statements intended for his customers but which were not in fact received by them.</p> <p>'The plaintiff was the head credit man in the employ of the defendants during all the time that Borchardt was employed. The monthly statements sent to customers were drawn by the defendants’ bookkeeper and were placed by him upon the plaintiff’s desk. After he had examined them, he would hand them to the addressing clerk who would thereafter pass them to the mailing clerks. The plaintiff admitted that he received all the monthly statements from the bookkeeper, but claimed that he passed them all on to the addressing clerk. The addressing clerk and the mailing clerks were changed frequently.</p> <p>"When the embezzlement was discovered, the defendants directed the plaintiff to interview Borchardt with respect thereto, but the plaintiff sought tobe relieved from that duty and advised against the investigation and suggested that the defendants proceed slowly. Borchardt was arrested and within a few weeks thereafter the plaintiff resigned his position, although such position had apparently been satisfactory to him theretofore. After the plaintiff left the defendants’ employ he gave as his office address the address of Borchardt’s new place of business. He was also a frequent visitor at Borchardt’s house after the latter’s arrest and his association with Borchardt seemed to be more intimate then than it had been before the discovery of the embezzlement. During the eighteen months prior to the embezzlement the plaintiff received from Borchardt the sum of $3,400 which he deposited in his private bank account.</p> <p>After the plaintiff had left the defendants’ employ Borchardt confessed to the defendants and to their attorney that the plaintiff had been his accomplice in the embezzlement. Acting upon the advice of their counsel the defendants laid the matter before the district attorney, with the result that an indictment was found against the plaintiff. This indictment was superseded by five others and these five indictments were thereafter quashed with leave to the district attorney to present the case to another grand jury. Nothing having been done, the present action for malicious prosecution was commenced. Borchardt was present in the court room during the trial; but was not sworn as a witness.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff for §25,000 should be affirmed;</p> <p>■ That it could not be said, as a matter of law, that the defendants had established probable cause for the prosecution, but that such question was one of fact for the jury to determine (per Hirschberg, P. J., and Hooker, J.);</p> <p>That it appearing that the plaintiff was a man of fifty-five years of age who had been in the employ of the defendants for over twenty years and who, for several years prior to his arrest, received a salary of §4,500 per annum, and that the charge of counsel for procuring the dismissal of the indictment and in collateral matters was §5,000, it could not be said that a verdict of $25,000 was excessive (per Hirschberg, P. J., and Hooker, J.);</p> <p>That motions for a nonsuit or for the dismissal of a complaint must, in order to be effectual, specify the defects supposed to exist (per Hirschberg, P. J., and Hooker, J.);</p> <p>That where the grounds stated in support of a motion for a nónsuit are insufficient the defendant'is not entitled on appeal to urge other grounds therefor. (Per Hirschberg, P. J., and Hooker, J.)</p> <p>Woodward, J., dissented.</p>

Appeal by Milton B. Andrews, as administrator, etc., of Amanda. L. Andrews, deceased, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 22d day of April, 1903, confirming the report of a referee appointed in the proceeding and judicially settling the accounts of the said administrator.

Appeal by the plaintiff, Toni Scheps, from a judgment of the-Supreme Court in favor of the defendant, Mary Herman, as administratrix, etc., of Mordchai Flamendorf; deceased, entered in the-office of the clerk of the county of Kings on the 10th day of' December, 1903, upon the decision of the court rendered after atrial at the Kings County Special Term, certain questions of fact, having previously been submitted to a jury at the Kings County Trial Term, and also from an order…

<p>Worm of an order vacating a decision on the ground, of newly-discoves'ed evidence — when a surrogate on vacating an oi'der imposing a transfer tax need not remit the matter to an appraiser — a direction to the Comptroller to refund the amount of the tax is unnecessary.</p> <p>Ordinarily, where a determination is set aside on the ground of newly-discovered evidence, the order setting it aside should not contain an adjudication contrary to the former determination, but should provide for a new hearing upon which both parties may be heard.</p> <p>This rule, however, does not make it improper for a surrogate, when uncontrovertible evidence, discovered since the entry of an order imposing a transfer tax upon an estate, is presented to him, establishing that the' estate is not subject to a transfer tax, to vacate the order imposing the transfer tax, and make it necessary for him to remit the matter to the official- appraiser to make the computation upon which the taxability or non-taxability of the property depends, particularly, as, under section 232 of the Tax Law, he is expressly' empowered to determine the amount of the transfer tax to which the estate is liable without appointing an appraiser.</p> <p>The surrogate may properly refuse to insert in the order vacating the transfer tax imposed upon the estate a direction to the State Comptroller to refund the . amount of the tax, as the statute itself directs the refunding of the tax in such a case (Laws of 1896, chap. 908, § 225, as amd. by Laws of 1897, chap. 284)!</p>

Appeal by the petitioners, Charles H. Flynn and another, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Orange on the 10th day of November, 1903, denying the petitioners’ motion to have set aside and declared invalid certain petitions theretofore filed with the town clerk of the town of Newburgh relative to the submission of the local option questions, under the Liquor Tax Law of the.

<p>Duty of a husband to support his wife—when the wife is liable for necessaries—evidence insufficient to establish her liability — testimony given by an adverse party — the party calling his adversary as a witness may controvert his testimony.</p> <p>The common-law duty of a husband to support his family has not been changed by the legislation respecting married women, and the liability for necessaries furnished to the family of a married man rests presumptively and primarily upon the husband, even though the contract therefor is made by the wife. Semble, that the wife may, however, by express agreement, render herself personally liable for necessaries furnished to her husband and family.</p> <p>What evidence is insufficient to sustain a finding of such an express agreement on the part of a wife, considered.</p> <p>A party who calls his adversary as a Witness is not precluded, under the rule which prohibits a party from impeaching his own witness, from showing by. other witnesses the existence of a different state of facts from that testified to by his adversary.</p> <p>Hirschberg, P. J'., dissented.</p>

<p>Appeal by the plaintiff, "William F. Monde, as administrator, etc., of William F. Monde, Jr., deceased, 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 13th day of November, 1903,. upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.</p>

Appeal by the defendants, Walter J. Tice 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 New York on the 16th ■day of November, 1903, upon the verdict of a jury, and also from •an order entered in said clerk’s office on the 19th day of November, 1903, denying the defendants” motion for a new trial .made upon the minutes.

<p>Bower—agreement between all parties in interest that a widow shall receive one? third of the rents of land left by her husband — the claim as tenant by the curtesy of a husband of a daughter of the decedent is subject thereto — such agreement constitutes an assignment of dower — a party who consents to the entry of a judgment in partition fixing t7ie rights of the parties cannot subsequently question it.</p> <p>John Howells, who died intestate seized of a parcel of real estate, left surviving him a widow and several children. In an action brought to partition the real estate, it appeared that the intestate’s widow was still living; that his daughter Elizabeth married Charles B. Nichols and had died intestate; that a child had been born of the marriage and that Mrs. Nichols was survived by her husband.</p> <p>It further appeared that subsequent to the intestate’s death, all of the parties in interest, including the daughter Elizabeth, executed an agreement and deed with reference to the real- estate, reciting as follows: “That the first claims* upon said premises and the issues and rents therefrom is that of the widow Rachel Howells, as dowress, and is one-third of the net rents of said premises for her life. That subject to such dower the parties hereto now stand seized in fee simple absolute of the following undivided interests in said premises, to' wit: Rachel Howells is seized of a full undivided two-thirtieths parto therein, and John H. Howells, Elizabeth Nichols, Rhoda Hoffman and Martha Howells are each seized of a full undivided seven-thirtieth part therein; and the contracting parties hereto hereby mutually grant, bargain and sell, remise, release, convey"and confirm said premises inter se, so that each stands seized of the undivided interest last above respectively ascribed to the said contracting parties, each of whom is to have and to hold his or her said share in said premises to himself or to herself (as the case may be) and to his or to her use and to the use and benefit of their respective heirs and assigns forever, subject only to the terms of this writing.”</p> <p>Held, that in determining the value of the estate by the'curtesy vested in the husband of the intestate’s daughter Elizabeth, the widow’s dower should be deducted from the seven-thirtieths part of the premises of which the testator’s daughter Elizabeth died seized;</p> <p>That when property out of which dower is to be assigned is in itself indivisible and, therefore, will not admit of setting apart a portion by metes and bounds, an allotment may be made to the widow of her proportionate share of rents and profits issuing from the entire property;</p> <p>That agreements inter partes constituting assignments or admeasurements of dower are recognized by the courts as effectual for that purpose, where the intention is clearly manifested;</p> <p>That the agreement and deed executed between the parties constituted a suffi-cient assignment of dower to the intestate’s widow; and that there was no merger of that dower in any superior estate;</p> <p>That a party to a partition action, who has consented to the entry of a final judg; ment fixing and determining the respective rights of the parties, cannot ques-tion the correctness of such determination on a motion to confirm the report of the referee appointed to make distribution of the proceeds of sale.</p> <p>* Sic</p>

<p>Appeal by the plaintiff, Mary McMahon, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 4th day of February, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 27th day of January, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

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

<p> What constitutes an abandonment of a case by an attorney—right of the client to an unconditional order of substitution of another attorney. </p> <p>An attorney who had instituted an action on behalf of a woman to enable her to obtain a divorce from her husband, after receiving an allowance of §250 for counsel fees pendente lite, sent the woman a letter stating that for reasons satisfactory to himself he declined to advise her any more and that her objection to his conduct in not putting the case on the calendar was “enough to justify any attorney to cease his relations, the mutual confidence which each had in the other looking to the success of the action having ended solely through your own conduct, the result can be no other than a change of attorneys.”</p> <p>The woman then made a motion for the substitution of attorneys, which motion the court granted on condition that she would pay to the attorney an additional sum of $100. Held, that the court should have granted the motion unconditionally; That as the attorney had abandoned the cause without, so far as appeared, j ustifiable cause, he was not entitled to any further compensation.</p>

<p>Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 17th day of May, 1904, upon the dismissal of the complaint by direction of the court after a trial at the Oneida Trial Term.</p>

Appeal by the defendant, the Owego Bridge 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 19th day of October, 1903, upon the verdict of a jury for $500, and also from, an order entered in said clerk’s office on the 21st day of October, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The City of Rochester, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 2d day of May, 1904, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

<p>Improvement of a public square in the city of Buffalo — the reinforcement and diversion of sewers and water mains, about a part of the square to be used by the State for the erection of a monument, may be done by the city pwrk department — the park department may delegate the work to the department of public parks.</p> <p>By chapter 455 of the Laws of 1897 the hoard of park commissioners of the city of Buffalo were “authorized to take possession of, to govern, manage and direct and to improve and embellish ” a public square in that city, and were granted “ all the power and authority now bylaw conferred on or possessed by the common council of said city in respect to the same, and all the power which the said board of park commissioners now possess over the parks of the city of Buffalo and the approaches thereto.” Thereafter the city made an appropriation of §25,000 to the park department for the specific purpose of improving the square. Subsequently an act of the Legislature was passed appropriating the sum of §100,000 for the purpose of erecting a monument to the late President William McKinley upon the square. In compliance with the proviso contained in the act the city conveyed to the State a circular parcel of land ninety-six feet in diameter, located in the center of the square, as the site for the monument. The park commissioners then adopted a plan for the improvement of the remainder of the square lying within their jurisdictions which involved, among other things, the reinforcement of a sewer within the monument circle and the diversion of other sewers and water mains which crossed the circle, so that they would run around the circle and in that part of the square still under the control of the park department. They also delegated the actual performance of the work to the department of public works.</p> <p>Beld, that the reinforcement and diversion of the sewers and water mains was a necessary incident of the improvement of the square and that the expense thereof might properly be paid from the $25,000 fund;</p> <p>That the park department had power to delegate the actual performance of the work of improvement to the department of public works.</p>

Appeal by the plaintiff, J ohn B. Kelly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 21st day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of April, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, J. Preston Hall, from an order of the 'County Court of Chautauqua county, entered in the office of the clerk of the county of Chautauqua, denying the plaintiff’s motion to punish the defendant for a contempt of court in furnishing a fictitious undertaking.</p>

Appeal by the petitioner, Jane M. Cook, from a decree of the-Surrogate’s Court of the county of Herkimer, entered in said Surrogate’s Court on the 23d day of June, 1904, dismissing the petitioner’s application for an accounting by the respondent. Subdivision 3 of section 2732 of the Code of Civil Procedure provides: “ If the deceased leaves a widow, and no descendant, parents, brother or sister, nephew or niece, the widow shall be entitled to the whole surplus * *

Appeal by Ray Semon Hatch, individually and as executor, etc. of Elam A. Hatch, deceased, and others, from so much of a decree of the Surrogate’s Court of the county of Monroe, entered in said Surrogate’s Court on the 26th day of May, 1904, as disallows the claim of the said executor for the sum found due her upon a judicial settlement of her account for expenses of administration.

Appeal by the plaintiffs, Hugh C. Fox 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 12th day of August, 1904, granting the defendants’ motion for leave to issue a commission to examine certain witnesses without the State of New York.

Certiorari issued out of the Supreme Court and attested on the 29th day of May, 1903, directed to Francis V. 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 police department of the city of New York.

Appeal by the defendants, Charles H. Blair 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 Hew York on the 9th day of December, 1903, upon the decision of the court rendered after a trial at the Hew York Special Term. In the will in question in this case Lewis R. Blair was nominated as an executor.

Appeal by the defendants, George Rosenshine and another, doing business under the style or firm name of Rosenshine Brothers, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 14th day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 17tli day of March, 1904, denying the defendants’ motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, John McClure, as trustee of Julia P. Kirkland, under the will of Charles P. Kirkland, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kew York on the 25th day of March, 1904, upon the decision of the court, rendered after a trial at the Mew York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendants, The City of New York 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 New York on the 15th day of July, 1903, upon the report of three referees appointed in the above-entitled action.

Appeal by the plaintiff, Frank W. Woolworth, 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 25tli day of April, 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 plaintiffs, William S. Hoñigbaum 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 6th day of September, 1904, granting a, motion made by the respondent, Henry Jackson, for leave to intervene in the above-entitled action.

<p>Appeal by Adele Gueutal 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 29th day of June, 1904, appointing a substituted trustee in the place of a deceased trustee.</p>

Appeal by the defendant, the Erie Railroad 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 15th day of June, 1904, granting the plaintiff’s motion to strike out the amended answer of the defendant, unless the latter should stipulate that the date of issue should remain as if no amended answer had been served.

<p>Will — void whiere a trust estate is suspended on yewrs and, not on lives — a power of sale given for the purposes of administration, falls with the trust.</p> <p>George Hagemeyer died June 14, 1892, leaving surviving him Mary Hagemeyer, his widow, and the following children: George Hagemeyer, Caspar Hagemeyer, Lizzie Walter and Martha J. Hagemeyer, who were of full age at the time of the testator’s death, and Mary Hagemeyer, Emma Hagemeyer and Eva Hagemeyer, who were infants at the time of the testator’s death. The youngest child, Eva, became twenty-one years of age November 20, 1900.</p> <p>The said George Hagemeyer, by his will, gave his residuary estate, both real and personal, to his executors intrust,and direc-tedtbem, under certain conditions, to allow the testator’s share of the capital employed in a certain business to remain therein until the testator’s youngest daughter, Eva, should attain the age of twenty-one years; to invest ail other personal estate in certain specified securities and to rent the remaining real estate. The testator then directed the executors, out of the income of the trust estate, to pay his widow the sum of §7,000 per annum during her natural life, and also to pay out of such income certain sums for the support of his four unmarried daughters until the youngest daughter should become of age. He also made provision for certain advancements in the event of the marriage of either of such four daughters before the youngest daughter became twenty-one years of age.</p> <p>The will then provided : “Upon my said youngest daughter Eva attaining the age of twenty-one years the interest of my estate in the business hereinbefore directed to be carried on by my sons shall be withdrawn; and my executors, after retaining either out of my real or personal estate or both, a portion amply sufficient to produce an annual income of seven thousand dollars to be paid to my wife during her natural life, as hereinbefore directed, shall make a division of all the remainder of my estate then remaining in the hands of my executors, into seven equal shares, taking into account the advancements which I have already made to three of my children. * * * And my executors shall thereupon pay over one of said seven equal shares (less the amount of his or her advancement as aforesaid) to each of my five other children, viz., George, Caspar, Lizzie, Martha and Mary.</p> <p>“ But the share of each of my two younger children, Emma and Eva, (to wit, one of said equal seventh parts, less the advancement of Eighteen thousand dollars, if the same shall have been made for the benefit of such daughter, upon her marriage as hereinbefore directed), shall be retained by my said executors and kept securely invested until' my said two younger daughters respectively attain the age of twenty-eight years. My said executors shall in the meantime, out of the income, pay to each, of such daughters the sum of Nine hundred dollars per annum— or, in case my said wife shall not be living the sum of Fifteen hundred dollars per annum.</p> <p>“And upon each of such two daughters attaining the age of twenty-eight years mv executors shall pay over to each the principal of her said share, together with all accumulations of interest thereon in the hands of said executors.</p> <p>“And upon the decease of my said wife the portion of my estate set apart and held as aforesaid by my executors to produce the annuity payable' to my said wife, during her natural life as aforesaid, with all accumulations of income (if any) derived therefrom and the entire estate then remaining in the hands of my said executors shall be paid over by my said executors to my said two sons and five daughters, equally, share and share alike; excepting that if my said wife shall die before my youngest child attains the age of twenty-eight years the provisions hereinbefore contained as to the time of the payment of the respective shares of my children shall control the time of the payment of their shares upon this final distribution.</p> <p>“ The time when my youngest daughter Eva attains the age of twenty-one years or becomes twenty-one years of age shall be construed in this will (in case of her decease during her minority) to mean the time when, if living, she would have attained that age:”</p> <p>Held, that the will contemplated two divisions of the estate; one when the youngest child, Eva, became-twenty-one years of age,'in which event the distribution was to be absolute of all the property save such as was necessary to produce the annuity to be paid to the widow and the shares of the two youngest children; and the other when the widow died, in which case the distribution would embrace the trust property which had been held by the executors for the purpose of producing the annual income payable to the widow;</p> <p>That both distributions were made to take place upon the youngest child's attaining her majority, or, to case of her prior death, upon the arrival of the time when, if living, she would have become of age, but to the event that, at the time of distribution, the two youngest daughters should not have attained the age of twenty-eight their shares were to be held in trust until they should respectively reach that age That the trust provisions of the will, consequently, contravened the statutes against perpetuities, in that the vesting of the shares of both the elder children and of the two younger children was dependent upon a term of years and not upon the lives of any individuals;</p> <p>That, as the trust provisions were void, the executors named in the will could not, under a power of sale given them for the purposes of distribution, convey a good title to real property included in the trust estate.</p>

<p>Appeal by the plaintiff, Benjamin F. Dexter, 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 February, 1904, upon the decision of the court rendered after a trial before the court without a jury at the New York Trial Term.</p>

Application by William Travers Jerome, district attorney of the county of New York, under section 1383 of the revised Greater New York… Held: and tending to bring the administration of justice into contempt and disgrace, to the great scandal and reproach of the said Court. “Charge XYI. “ That said Herman Bolte, while sitting as Justice of the Municipal Court of the City of Hew York, Borough of Manhattan, Second District, issued ex parte orders in actions pending in other…

<p>Cross-appeals by the plaintiffs, Hopper S. Mott and others, and by the defendant, Amos F. Eno, from a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 29th day of June, 1903,¡ upon the report of a referee.</p>