Volume 98 — New York Appellate Division Reports

<p>Appeal by the defendant, Marie Goss, from an order of the Supreme Court, made at the New York Special Term and entered in the oiBce of the clerk of the county of New York on the 14th day of July, 1904, denying the defendant’s motion to vacate an order of arrest theretofore granted in the above-entitled action.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 3d day of March, 1904, directed to Benjamin Hoffman, as justice of the Municipal Court of the city of Hew York for the fifth district of the borough of Manhattan, commanding him to certify and return to the office of the clerk of the county of Hew York all and singular his proceedings had in removing the relator from the position of court attendant in said Municipal Court.</p>

Appeal by Carsten H. Meyer, as executor, etc., of John D. Meyer, deceased, from an order of the Surrogate’s Court of the county of ¡New York, entered in said Surrogate’s Court on the 14th day of March, 1904, directing the appellant to file his account as such executor.

Appeal by the defendant, Charles T. Tyler, 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 17th day of May, 1904, adjudging the defendant in contempt of court for a failure to comply with an order theretofore entered in the above-entitled action by which he was directed to turn over certain specific articles of property to a receiver by said order appointed.

<p>Application to take testimony before trial — statement of intent to use it on the trial — not granted in order to develop an adversary’s defense.</p> <p>It is not essential that an application hy a plaintiff to examine one of the defendants before trial, pursuant to the provisions of section 873 of the Code of Civil Procedure, shall directly and explicitly state that it is the intention of the plaintiff to use the testimony of the defendant in question upon the trial; it is sufficient if such intention appears by fair inference.</p> <p>Such an application will not be granted for the purpose of developing any defense of which the defendant sought to be examined may be possessed.</p> <p>Van Brunt, P. J., dissented on the ground “that this defendant was made a party only for the purpose of examination.”</p>

Appeal by the defendant, Isaac N. Heidelberg, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of June, 1903, upon the verdict of a jury for $52,578.50, and also from an order entered in said clerk’s office on the 26th day of June, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Receiver of a leasehold interest, appointed in an action between husband and wife to determine as to its ownership — an adjudication that the lessor is entitled to possession because of the lessee’s default is conclusive as to the receiver.</p> <p>Ann Stetson Foster was the lessee of a hotel in the city of New York, and her husband, Albert T. Foster, conducted the business of keeping the hotel and was the manager thereof, Mrs. Foster brought an action against Mr. Foster to secure a determination that she, and not her husband, was the owner of the lease, and she demanded an injunction restraining him from asserting any rights in the lease or in the business of conducting the hotel.</p> <p>Mr. Foster was appointed receiver in the action, apparently with the consent of the owner of the premises, who, however, stipulated, “It also must be distinctly understood that I reserve the right to commence dispossess proceedings, or institute any other action at law or in equity that I may deem proper at any time.”</p> <p>Thereafter the owner of the premises instituted summary proceedings against Mrs. Foster and Mr. Foster, and against the latter as receiver, to recover possession of the premises because of the non-payment of rent and water assessments. The proceedings resulted in a final order adjudging that, as against Mr. and Mrs. Foster, the owner of the premises was entitled to possession thereof, but that the proceedings should be dismissed as against the receiver, because no demand had been made upon him for the payment of the rent in arrears.</p> <p>The owner of the premises then presented a petition to the Supreme Court asking that instructions be given to the receiver to surrender the possession of the premises. The court denied the motion, upon condition that the receiver should pay over to a certain depositary, subject to the order of the owner of the property, a sum equal to the net profits, if any, resulting from the operation of the hotel from the time when the receiver took possession of the property until September 1, 1904, such sum to be applied on account of the rent which had accrued during that period, and upon the further condition that from September 1, 1904, the receiver should pay, in weekly installments, rent at the rate reserved in the lease.</p> <p>Reid, that as the receiver had been appointed in the interest of the husband and wife, who were the only parties whose rights were involved in the action, and as it had been adjudged that, as against the husband and wife, the owner was entitled to the possession of the premises, the order allowing the receiver to retain possession of the property was grossly inequitable;</p> <p>That such order should be reversed and that the receiver should be directed to surrender possession, unless the arrears of rent and taxes were paid.</p>

<p>Appeal by the plaintiff, Isidor Wormser, Jr., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of July, 1903, upon the decision of the court rendered after a trial at the New York Special Term dismissing the plaintiff’s complaint upon the minutes.</p> <p>The plaintiff, a stockholder of the Metropolitan Street Railway Company, sought to set aside, or to prevent the delivery of a lease dated February 14,1902, executed by the Metropolitan Street Railway Company, as lessor, and the Interurban Street Railway Company, as lessee. He also ásked for an injunction to restrain the defendants from carrying out the provisions of a plan presented to the stockholders of the Metropolitan Street Railway Company by its directors relating to a method of providing money to pay the unfunded debts of that corporation and to defray the expense of extending its electrical system to upwards of eighty miles of its lines on which that system was not then used. The basis of the plan was the lease referred to. At a meeting of the directors of the Metropolitan Street Railway Company the project of making the lease was assented to, subject to the approval of the stockholders. At meetings of the stockholders of the Metropolitan Street Railway Company the scheme of making the lease and of adopting the plan were assented to by a large majority of such stockholders, and subsequently ninety-nine per cent of all the stockholders (including those who voted at the meeting) acquiesced in the arrangements that were made. The lease was for a term of 999 years, the lessee agreeing to pay as rental an amount equal to seven per cent of the capital stock of the Metropolitan Street Railway Company. It also provided that the lessee should pay to the Metropolitan Street Railway Company $23,000,000 in cash, which was the amount of its floating debt and of money required to provide for construction and other legitimate obligations of the Metropolitan Street Railway Company. The lessee was also to receive certain securities of the Metropolitan Street Railway Company amounting in actual value to about the same sum. By the plan the stockholders of the Metropolitan Street Railway Company were also to have the privilege of subscribing to the capital stock of the Metropolitan Securities Company, which was a corporation organized under the laws of the State of New York, and which owned, actually or potentially, the entire capital stock of the Interurban Company, After the action was brought, but before answer, the plaintiff elected to participate in the privilege of buying or subscribing to stock of the Metropolitan Securities Company, so far as related to 885 of his 1,000 shares of stock, and he received a large sum of money upon a sale of that privilege. The substantial grounds upon which the plaintiff assailed the transaction were, first, that the Metropolitan Street Railway Company had not the legal right or authority to execute the instrument called a lease; that that instrument, when considered in connection with the material facts appearing in the case, was not in reality a lease, but was an absolute conveyance of all the property, rights and franchises of the Metropolitan Street Railway Company to another corporation, and, second, that whatever might be the legal character of that instrument, it was in fact fraudulent as against the minority stockholders of the Metropolitan Street Railway Company of whom the plaintiff wras one; and that the lease and the plan were merely parts or steps in an illegitimate scheme to divert the property of the Metropolitan Street Railway Company from the stockholders of that corporation to other persons, to the great detriment and wrong of such stockholders. On the trial at Special Term the court dismissed the complaint on the merits, holding that the Metropolitan Street Railway Company had the legal right and power to make the lease, with the assent of the stockholders, and that the transactions, so far as related to the lease and to the plan, were entered into and consummated honestly and in good faith and without any fraud on the part of any of the participants therein.</p>

<p>Title to property held by the Society of Shakers of Mt. Lebanon — in whom it is vested and in what manner it may be transferred, considered — the society is not a religious corporation — it is a voluntary unincorporated association—form of approval by its “ ministry and elders.”</p> <p>Upon the submission of a controversy between a contract vendor of real estate and the contract vendee, as to whether the vendor could give a marketable title to the property, it appeared that the vendor acquired title from John S. Robinson, to whom the property had been conveyed by Benjamin Gates and Robert Valentine, trustees for the Society of Shakers of Mt. Lebanon on November 27, 1885. In addition, the vendor tendered to the vendee a written consent and approbation by the present ministry and elders of the society to the execution by the present trustees of the society of a quitclaim deed to the vendor and a written confirmation and approbation by them of the conveyance made by the former trustees to Robinson, aud also a quitclaim deed by such present trustees to the vendor.</p> <p>Upon the submission there was presented a copy of the “ Shaker Church Covenant,” which is the constitution of that society. Such covenant stated that all the members thereof consecrated their property to the purposes of the society and quitclaimed all personal right, title and interest in and to such property; that the trustees of the society, whose powers descended in regular succession, were “invested with power to take the general charge and oversight of all the property, estate and interest dedicated * * * for the benefit of the Church; * * * also all gifts, grants and donations,” the property to be held by them in trust for the church or society; and that "no disposal of any real estate of the Church nor any important contract shall be considered valid without the previous approbation of” the ministry and elders “to whom the said deacons and trustees are and shall at all times he held responsible in all their transactions.”</p> <p>The manner of obtaining the approval of the ministry and elders was not stated in the covenant, hut, from affidavits presented on the submission, the allegations in which were not denied, it appeared that such approval is always obtained of any purchases, sales or transfers of real estate, prior thereto, by consulting the ministry and elders, who verbally signify their approbation, the purchase or sale being then consummated by the trustees. The affidavits also stated that such approval was in this instance had and obtained, and the purchase and the sale of this property thus sanctioned by the society.</p> <p>It appeared that no statute had been passed expressly declaring the Shaker Society to be a corporation and that it never was incorporated under a general act. It did appear, however, that, by chapter 174 of the Laws of 1839, as amended by chapter 373 of the Laws of 1849 and chapter 203 of the Laws of 1852, the legal title of the property of the society was vested in the trustees thereof.</p> <p>The vendee’s objections to the vendor’s title were, (1) that if the Society of Shakers is a religious corporation no sale by it or its trustees is valid without an order of the Supreme Court; (2) that if it is an unincorporated association, title to its real estate is vested in all the members of the society, who must join in the deed; (3) that if the trustees have power to sell with the approbation of the ministry and elders as set forth in the Shaker covenant, no _ disposal of the real estate can be made unless after action taken by the ministry and elders as boards or joint council, and the written consent cannot be accepted because the individuals do not represent a deliberate board or council where such consent was obtained; and (4) that the annual income of the society from beneficial interests in real or personal property may be in excess of §25,000, the limitation fixed in the Shaker Act.</p> <p>Held,, that the objections were untenable, and that the vendor had a marketable title to the property;</p> <p>That the society was not an incorporated one, but a voluntary, unincorporated association formed by the consent of the individuals composing it for religious and business purposes, which had obtained the corporate power to have property held by trustees in perpetual succession;</p> <p>That, as the society was not a religious corporation, it required neither the approval of the court nor an act of the Legislature to enable it to convey title to real estate;</p> <p>That, in view of the statutes vesting in the trustees the legal title to all the property of the society and of the language of the covenant, it was not necessary that all the members of the society should join in a deed of its real estate;</p> <p>That, as there was nothing in the covenant requiring the ministry and elders to meet in deliberate board meeting or joint council and there manifest their approbation of a conveyance of real estate by the trustees in a formal, fixed way, or in writing, the informal, verbal approbation obtained at the time the deed to Robinson was executed, being in conformity with the uniform practice of the society, was sufficient;</p> <p>That, even if the formal written approbation of the ministry and elders was necessary, the failure to procure it when the deed to Robinson was executed was cured by the production of the approbation of the present ministry and elders and of the quitclaim deed from the present trustees;</p> <p>That the objection that the society might have property, the annual value of which exceeded §25,000, in violation of the provisions of the Shaker Act, was untenable, in view of the affidavit submitted on behalf of the vendor from which it appeared that the annual value or income of the property held by the society was within the §25,000 limit.</p>

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Flew York on the 17th day of February, 1904, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 18th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Edwin O. Jameson and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the IStli day of April, 1904, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p> <p>This action is brought on a policy of fire insurance, in the standard form of the State of New York, issued by the defendants and twenty-four other underwriters associated in the business of insurance against fire. After issue joined the case was regularly reached upon the Trial Term calendar, when the parties waived a trial by jury and submitted the case to the court for its decision upon tiie following agreed facts: On or about December 6, 1899, the defendants and twenty-four other underwriters issued to one Charles E. Callender a policy of insurance against loss by fire on certain property in the sum of $2,500 for the term of one year from November 25, 1899. The policy contained a provision that it should he and become void “if any change other than by the death of an insured, take place in the interest, title or possession of the subject of insurance (except change of occupants without increase of hazard) whether by legal process or judgment or by voluntary act of the insured or otherwise.” At the time the policy was issued the said Charles E. Callender was the sole and unconditional owner of the property insured, except that there was a mortgage thereupon which has been since satisfied. Subsequently to the time when the policy was issued, and on or about the 2d day of March, 1900, the said Charles E. Callender filed a petition in bankruptcy in the District Court of the United States for the district of Massachusetts, in which district he resided and in which the insured property was located. Upon the same day he was adjudicated a bankrupt. On March 10, 1900, the said Charles E. Callender filed a petition with the referee in bankruptcy for the appointment of a receiver of his property; The referee thereupon informed him that he had appointed John S. Fuller receiver and the following entry was made on the same day in the record book of the referee. “ On application by bankrupt, and after hearing evidence, John S. Fuller of Stock-bridge, Mass., was appointed receiver to continue the business until appointment and qualification of trustee. Bond fixed at $10,000.” During the afternoon of that day when the bankrupt applied for the appointment of a receiver, and after the referee in bankruptcy had communicated to him that he had appointed John S. Fuller as receiver, the bankrupt and the said Mr. Fuller were at the mill mentioned and described in the policy, and they examined the property and affairs of the bankrupt. Subsequently to such examination, and on the night of the same day, that is, of March 10,1900, the property described in the policy of insurance was destroyed by fire. Several days after the fire a formal order was entered appointing the receiver, and he duly qualified, giving a bond.</p> <p>The court subsequently made its decision and entered judgment for the plaintiff and the defendants appeal therefrom.</p>

<p>Appeal by the relator, James J. O’Toole, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of July, 1904, denying the relator’s motion for a peremptory or alternative writ of mandamus.</p> <p>The facts are thus correctly summarized in the opinion of the learned judge at Special Term (44 Misc. Rep. 577, 578): “ On and prior to January 7, 1898, the relator was upon the eligible classified list of the State Civil Service Commission for the position of clerk in the office of the county clerk of New York county. On said 7th day of January, 1898, he was appointed from said eligible classified list as clerk in the said county clerk’s office. He was assigned to perform the duties of indexing clerk and continued to perform such duties until May 1,1900, when he was assigned to perform the duties of comparison clerk. The relator continued to perform the duties of comparison clerk until May 10,1904. While he held the position of index clerk the State Civil Service Commission had, with the approval of the Governor, prescribed certain rules and regulations which provided, among other things, that from June 16, 1900, the position of index clerk or comparison clerk in the office of the county clerk should be subject to competitive examination. On February 4, 1904, the State Civil Service Commission changed the said rules and regulations, with the approval of the Governor, and provided that the said position of index or comparison cleric in the office of the county clerk of New York county should not be subject to competitive examination, but should he a non-competitive position in the classified service. On May 10, 1904, while the relator was holding the ¡position of comparison clerk he was removed therefrom by the county clerk. No reason was assigned for his removal nor was he afforded an opportunity to be heard in his own behalf in respect thereto. The position made vacant by the relator’s removal was filled by an appointee of the county clerk, who has continued to hold the position and to receive the salary attached thereto.” Upon these facts the relator’s motion for the issuance of an alternative writ of mandamus was denied, and from the order so entered the relator appeals.</p>

Appeal by the defendant, John Mortimer, 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 September, 1904, denying the defendant’s motion to vacate an order theretofore entered herein directing the issuance of an execution.

<p>Appeal by the defendant, Adolph Wexler, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of New York on the 2Gth. day of February, 1904, affirming a judgment of the City Court of the city of New York in favor of the plaintiff, entered in the office of the clerk of said City Court on the 18th day of December, 1903.</p>

Appeal by the defendant, Joseph Brooks, from so much of an order of the Supreme Court, made at the Hew York. Special Term and entered in the office of the clerk of' the county of Hew York on the 19th day of May, 1904, as grants a stay of all proceedings in an action in which the said Joseph Brooks is plaintiff and David Belasco and the David Belasco Company, the plaintiff herein, are defendants, until the final determination of this action.

Appeal by the plaintiff, Jacob Eckes, from a judgment of the ¡Supreme Court in favor of the defendant Ilenry I. Stetler, entered in the office of the clerk of the county of Hew York on the 25th day of April, 1904, upon the dismissal of the complaint by direction of the court as to the said Henry I. Stetler, upon the opening of plaintiff’s counsel on a trial at the Hew York Trial Term.

<p>Appeal by the relator, the A. J. Tower 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 20th day of June, 1904, denying the relator’s motion to cancel an assessment made by the respondents upon the capital of the relator invested in business in the State of New York for the year 1903.</p>

<p>Appeal by the defendant, Charles F. Dodge, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of April,' 1904, vacating an order entered on the 3d day of December, 1903, setting aside and annulling a decree of divorce theretofore granted herein.</p>

<p>Mortgage — assumption of, by a purchaser of the mortgaged premises—acceptance of interest before it becomes due is prima facie evidence of an extension of the time of payment of the principal — assumption on appeal that every material fact has been found in favor of the respondent — a conclusion of law treated as a finding of fact.</p> <p>Where a mortgagor of real property conveys the mortgaged premises to a. person who assumes and agrees to pay the mortgage, the mortgagor’s liability for the mortgage debt is thereafter that of a surety, and if the mortgagee, with knowledge of this fact, thereafter grants any extension of time for the payment of the mortgage debt, the mortgaged premises being then worth more than the debt and interest, without the mortgagor’s knowledge or consent, the latter is relieved from all liability upon the bond.</p> <p>The acceptance by the mortgagee from the mortgagor’s grantee, after the mortgage becomes due, of an installment of interest a day prior to the time when such installment becomes due, is prima facie evidence of an agreement on the part of the mortgagee to extend the time for the payment of the mortgage until the expiration of the period for which the interest was received, and, if such presumption is not rebutted by facts or circumstances negativing the making of such agreement, the mortgagor is thereby relieved from liability upon the bond.</p> <p>Semble, that the advance payment of interest would not have released the mortgagor from liability on the bond, provided the mortgagee expressly reserved the right at any time to return the surplus of interest or to apply the same upon the principal and enforce payment of the balance.</p> <p>Where the case, on an appeal from a judgment entered after a trial at Special Term, contains all the evidence, which is undisputed, the Appellate Division may, for the purpose of sustaining the judgment, indulge in the assumption that the trial judge found every material fact established by the evidence and essential to sustain the judgment.</p> <p>A conclusion of law may, in such case, for the purpose of sustaining a judgment, be treated as a finding of fact.</p> <p>Hatch, J., dissented.</p>

Certiorari issued out of the Supreme Court and attested on the Uth day of May, 1904, directed to Joseph E. Newburger, Judge of the Court of General Sessions, 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 summary commitment of the relator for a criminal contempt of court by which the relator was adjudged to pay $100 and in default of the payment to be committed to jail for a…

Appeal by Joseph Bird, substituted trustee under the ninth clause of the will of James 0.

Appeal by the defendant, Nathaniel 0. Goodwin, 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 September, 1904, denying the defendant’s motion for a bill of particulars.

Appeal by John Cunneen, Attorney-General of the State of Hew York, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 9th day of May, 1904, denying the appellant’s motion made to vacate an order of reference theretofore entered in the above-entitled action.

Appeal by the defendant, the Star Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 10th day of October, 1904, granting the plaintiff’s motion for a preference and setting the case down for trial upon a day certain during the October term, 1904.

<p>Appeal by the defendants, Eunice Eleanor Huff 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 21st day of September, 1904, granting the plaintiffs’ motion for an order of reference.</p>

<p>Appeal by David B. Siclcels, as receiver of the Harlem River Bank, from an order of the Supreme Court, made at the Hew York Special Term an'd entered in the office of the clerk of the county of Hew York on the 5tli day of July, 1904, authorizing the applicant, Sarah Ziegler, to file her claim against the Harlem River Bank with the receiver of the bank, and also appointing a referee to take proof ®f the claim of the applicant against such bank.</p>

<p>Appeal by the petitioner, Gerardine II. Hickok, from a decree of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 21th day of May, 1904, dismissing the petitioner’s objections to the account of the respondent for want of jurisdiction, and judicially allowing the account as filed, and-also from an order entered in said Surrogate’s Court on the 8th day of June, 1904, denying the petitioner’s motion to resettle said decree.</p>

<p>Appeal by the defendant, Jacob Bardusch, Jr., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 5th day of February, 1904, upon the verdict of a jury for $1,250, and alio from an order entered in said clerk’s office on the 24th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Negligence — locomotor ataxia m/ust be specified as a distinct disease to justify proof ■ of its being the consequence of an injury — to authorize proof of a disease under allegations of a severe shock, it must inevitably result therefrom.</p> <p>The complaint in an action brought to recover damages for personal injuries, sustained by the plaintiff through the alleged negligence of the defendant, alleged that ‘‘she sustained many contusions and bruises of the body and limbs, was made sick and sore, and her nervous system received a severe shock, from all of which she suffered and still suffers great pain and agony, was taken to a hospital, where she still remains; * * * that it will he a long time before she will be able, if indeed she is ever, able to carry on her occupation which is that of a nurse; ” that she will- from time to time require the services of a physician, and “ that the injuries above set forth will be the whole or in part permanent.” No bill of particulars of the injuries was demanded or given.</p> <p>Meld, that as it appeared that locomotor ataxia was a distinct disease which would not ordinarily have resulted from injuries such as the plaintiff received, and was, therefore, not the necessary and immediate result thereof, evidence that the plaintiff was suffering from locomotor ataxia as the result of her injuries, was not competent, because it had not been specially pleaded;</p> <p>That the allegation of the complaint that the plaintiff’s nervous system received a severe shock from which she was still suffering pain and agony did not embrace a disease which resulted from the shock unless such disease would, inevitably, have resulted therefrom.</p> <p>Patterson, J., dissented.</p>

<p>negligence — injury to a boy of six while crossing a street railway track — when the questions of the negligence of the railway company and of the contributory negligence of the boy’s parents are for the jury.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s intestate, a boy six years of age, it appeared that on the afternoon during which Hie accident.occurred, while the father of the intestate was at work, his mother took the intestate and two other children, a boy of eight years and a girl, aged one year, to a park about a block and a half from their home; that on arriving at the park the mother permitted the intestate to accompany Ms elder brother and play with other boys within the park, cautioning them not to go near the East river which is adjacent thereto; that, notwithstanding their mother’s injunction, the intestate and his brother did go to the East river; that the intestate and his brother and other boys when returning from the East river attempted to cross-the defendant’s street railway track; that the other boys crossed the track in safety, hut that the intestate, who was last, was struck by one of the defendant’s horse cars when between the rails.</p> <p>Evidence was given tending to show that when he was about to step on the track, the horse car was twenty feet distant, and that it was ten or twelve feet distant when he was in the middle of the track, and that no effort was made to stop the car until after the boy had been struck. The driver testified that he could stop the car within six or seven feet.</p> <p>Held, that it was improper for the court to nonsuit the plaintiff;</p> <p>That as the intestate was only six years of age, it would be presumed that he was non sui juris, and hence that a finding of contributory negligence could not be based upon his own failure to exercise care;</p> <p>That whether the defendant was guilty of negligence and whether the intestate’s mother was free from contributory negligence, were questions of fact which should have been submitted to the jury.</p> <p>Van Brunt, P. J., dissented.</p>

Appeal by the defendant, the Evening Journal Association, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 30th day of August, 1904, denying the defendant’s motion to set aside the service of the summons and complaint herein.

<p>Mortgage foreclosure— order directing service of the summons by publication — when the moving affidavits are insufficient — certificate of a sheriff.</p> <p>In an action to foreclose a first mortgage upon real property, service was attempted to be made upon one Watson, the holder of a second mortgage, by publication, the order for such service being made upon the theory that Watson was a resident of Canada and that the plaintiff had been or would be unable, in the exercise of due diligence, to make personal service of the summons upon him. The order was granted upon an affidavit which averred that the affiant had been employed by the plaintiff's attorney in connection with the action and “ that the defendant Higgins informed him that he had known Watson for a number of years and that Watson had lived in Canada all his life; that the defendant Silleck, Jr., who executed the mortgage to Watson, informed him that Watson resided in Hamilton, Ont., Can., and had lived there for about twelve years, and that Watson occasionally came to New York and had business with him, and that Silleck promised to write Watson and notify affiant when he would be in New York so that affiant might serve the summons upon him; that nearly four weeks later affiant called at Silleck’s place of business, and that a person in charge of the place stated that Silleck was not in but had received a letter from Watson which was exhibited to affiant, was dated Hamilton, Ont., Can., and stated that Watson had no occasion to come to New York 1 at present, and did not know when he would come; ’ that affiant left a proposed affidavit of these facts with a request that Silleck verify the same, and a little over a month later called again and saw Silleck, who refused to verify the affidavit unless the action were changed so as to make the defendant Higgins, who executed the bond and mortgage sought to be foreclosed, ‘ principal defendant; ’ that the attorney at whose request the Watson mortgage was recorded informed affiant that he knew Watson, and that Watson resided in Hamilton, Ont., but that he had not transacted any business with him in a number of years, and could not appear for him unless the defendant Silleck. whose ‘ matter ’ it was, would authorize such appearance, and a few days later informed affiant that he could not obtain authority from Silleck to appear for Watson. The order was not applied for until about six weeks after the last inquiry made concerning Watson’s residence or whereabouts.”</p> <p>There was no averment that the summons was ever issued to the sheriff or delivered to any one with directions to serve the same upon Watson, nor did the affidavit contain an allegation on information and belief of Watson’s non-residence, or an averment, based upon this certificate or any other information or proof,- that the affiant believed that Watson was a non-resident of the State, or that the plaintiff had been or would be unable in the exercise of due diligence to serve the summons personally.</p> <p>Held, that the affidavits did not confer jurisdiction on the court to issue the order;</p> <p>That, for aught that appeared, the affiant may have known or had reason to believe from other information obtained that Watson did not reside in Hamilton, Ont., and may have known or had reason to believe that Watson was within the State or was coming to the State, or had entered the State before the order was obtained many weeks later, so that personal service could have been made upon him;</p> <p>That if the affidavits had averred that Watson was a non-resident and resided in Hamilton, Ont., upon information and belief derived from the sources and based upon the grounds stated in the affidavits, and had shown that the summons had been issued to the sheriff and returned unserved by him, there would have been sufficient basis for the issuance of the order;</p> <p>That a certificate of the sheriff that he had used due diligence to find Watson in order to serve him with the summons and complaint, and further stating, ‘ ‘ from the best information I can obtain I learn that he is a resident of and now is in Hamilton, Ontario. Wherefore I return him as not found,” which certificate, although referred to in the order of publication, was not made a part of the affidavits upon which the order was procured or referred to in such affidavits, could not be considered on the application for an order for service by publication.</p> <p>O’Brien and Hatch, JJ., dissented.</p>

Appeal by the defendant, the Press Publishing 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 19th day of August, 1904, denying the defendant’s motion for an order requiring the plaintiff to grant an extension of time to answer in accordance with a written stipulation.

Appeal by the defendant, the Amazonas Company, from an order of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York on the 23d day of June, 1904, placing the action upon the special calendar of Part II for trial, pursuant to rule 5 regulating Trial Terms in the first judicial district.

Appeal by the petitioner, Francis P. B. Sands, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 3d day of August, 1904, vacating an order for the examination of the Electric Boat Company and the Holland Torpedo Boat Company through its president and director, respectively, and for an inspection of their hooks and papers.

Appeal by the defendants, the Rome Metallic.Bedstead Company and others, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of June, 1904, denying the said defendants’ motion to change the place of trial of the action from the county of Hew York to the county of Oneida for the convenience of witnesses.

Appeal by Michael J. Galvin from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 24th day of December, 1903, settling the accounts of Julia E. Roberts, as assignee of the Charlotte Steel and Iron Company, under a general assignment for the benefit of creditors, and directing the distribution of the moneys in her hands. The general assignment was made September 24,1900, to Charles C. Hoge.

Appeal by James E. Kelly, an attorney at law, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 3d day of October, 1904, directing him to pay to Anna Augusta Kenly, or to her attorney, Walter S. Logan, the sum of $233.33.

<p>Appeal by the defendants, Rudolf Einbigler and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered iti the office of the clerk of the county of New York on the 22d day of J une, 1904, upon the decision of the court rendered after a trial at the New York Trial Term, a jury having been waived.</p>

Appeal by the defendant, Stephen W. Dorsey, 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 October, 1902, requiring the defendant to serve a bill of particulars.

Appeal by the plaintiffs, Joseph M. Weber 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 11th day of July, 1904, denying the plaintiffs’ motion for a preliminary injunction.

Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from so much of an order of the Supreme Court, made at the Hew York Special Term, bearing date the lltli day of August, 1904, and entered in the office of the clerk of the county of Hew York, as denies the defendant’s motion to vacate an order bearing date the 19tli day of July, 1904, directing the examination of the defendant as an adverse party.

<p>Appeal by Rebecca S. Mills and others from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 18th day of July, 1904, appointing Solomon B. Livingston a trustee to execute the trust created by the last will and testament of Henry R. Dunham, deceased, for the benefit of the petitioner, Jane Mayne.</p> <p>The testator left two children, Rebecca S. Mills, a daughter, and Henry R. Dunham, Jr., a son, since deceased, whose children assigned their interest in the estate to one of the children of Rebecca S. Mills.</p>

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

Appeal by the plaintiff, Matthew Le Page, 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 19th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.

Appeal by the plaintiff, Joseph Dempsey, as administrator, etc., of Joseph Dempsey, 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 April, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

<p>Ante-nuptial contract— when after the death of the husband and in the absence of issue a trust created thereby will be declared terminated.</p> <p>A deed executed October 3, 1873, between a woman, her intended husband anda trustee, recited that in contemplation of the marriage it was the desire of the parties that certain specified securities belonging to the woman should be placed in trust and settled and secured in such a manner that they should not be subject to the disposal of either the husband or wife " during said marriage,” and that said securities should not become liable for any debts contracted by the husband and that he should have no interest whatever, either in law or in equity, in either the principal or the income of the property.</p> <p>The deed provided that the rents, interest, income and dividends of the property were to be devoted to the exclusive use of the wife, and that on her death the whole property was to be transferred to such person or persons as she might appoint by will, and in default of such direction to her heirs and next of kin. It contained no power of revocation nor any provision for possible issue of the marriage.</p> <p>Held, that the trust created was only intended to continue during coverture, and that the husband having died leaving the wife surviving him, and the marriage having been without issue and no rights of third parties having intervened, the wife was entitled to have the trust declared terminated.</p>

Certiorari issued out of the Supreme Court and attested on the 18th day of January, 1904, directed to William McAdoo, as police commissioner of the city of New York, commanding him to certify and return to the office of the clerk of the county of Kings all and singular his proceedings had in relation to the fine imposed upon the relator for a failure to execute a warrant duly issued to him by a city magistrate.

Appeal by the defendant, The People of the State of New York, from an order of the Surrogate’s Court of the county of Queens, entered in said Surrogate’s Court on the 17th day of March, 1904, appointing a referee to hear and determine the rights of persons interested in a fund in the hands of the State Treasurer.

Appeal by the plaintiffs, William H. Miles, Jr., and another, composing the firm of Miles Brothers & Co., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 17th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.

Appeal by the defendant, James P. McDonald, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 24th day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 22d day of October, 1903, denying the said defendant's motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, The City of New York, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 28th day of February, 1908, upon the decision of the court, rendered after a trial at the Kings County Special Term, dismissing the plaintiff’s complaint.</p>

Appeal by the defendant, the Union Railway Company of New York City, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Westchester on the 29th day of December, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 31st day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, Lowry Somerville, 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 2d day of December, 1903, upon the verdict of a jury for $4,750, and also from an order entered in said clerk’s office oh the 3d day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, John Reilly, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Queens on the 7th day of November, 1902, upon the verdict of a jury, rendered by direction of the court, after a trial at the Queens County Trial Term, dismissing the complaint upon the merits.

<p>Appeal by the defendants, Wilson R. Smith and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Suffolk on the 13th day of September, 1902, upon the decision of the court rendered after a trial at the Suffolk Trial Term, a jury having been waived.</p>

<p>Negligence — a boy of two years and nine months run over by a wagon — admissions by the driver after the injury—admissibility of, on the question of his credibility in an action against his employer — a verdict of §10,500 held motto be excessive.</p> <p>In an action brought to recover damages for personal injuries sustained by the plaintiff, a boy two years and nine months old, while playing in a public street, in consequence of the alleged negligence of the driver of one of the defendant’s wagons, which ran over the boy, the driver, when called as a witness by the defendant, gave testimony, which, if believed, would establish that he was not guilty of negligence.</p> <p>Held, that it was competent for the plaintiff, upon the driver’s cross-examination, to interrogate the driver as to whether, subsequent to the accident, he did not make certain declarations as to how the accident occurred inconsistent with the version testified to by him upon the trial, and, the driver having denied making such declarations, after having the time, place, circumstances and language thereof called to his attention, that the plaintiff was entitled to prove by other witnesses that the driver did make the alleged declarations:</p> <p>That such evidence was competent, not for the purpose of establishing negligence on the part of the defendant, but for the purpose of impeaching the driver’s credibility.</p> <p>Where in such case it appears that, as a result of the injuries sustained by the plaintiff, the plaintiff is suffering from epilepsy, a verdict for §10,500 is not excessive.</p>

Appeal by the defendants, Ezra B. Tuttle and others, composing the firm of S. Tuttle’s Sons & 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 3d day of December, 1903, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 12th day of January, 1904, denying the defendants’ motion for a new trial made upon the minutes.

Appeal by the defendant, The Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 15th day of December, 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 11th day of December, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiffs, Halstead Scudder and another, as executors, etc., of Elizabeth Benham, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Nassau on the 15th day of July, 1903, upon the decision of the court, rendered after a trial at the Suffolk Special Term, dismissing the complaint upon the merits.</p> <p>The restrictive agreement mentioned in the opinion which was executed among others by the plaintiffs’ testatrix, and one of the defendant’s predecessors in title, provided that the parties thereto would “not sell nor permit to be sold spirituous or intoxicating liquors as a beverage upon any land or premises situated at or near Glen Head Depot * * * owned by us severally, or jointly; ” and also that said parties would “ include in any instrument of conveyance * * * of said lands or premises or any part thereof, a covenant and condition that the lands so sold * * * or conveyed by either of us thereby, shall not be used for the manufacture or sale of any spirituous or other intoxicating liquors as a beverage, hereby intending that said covenant and condition shall bind our heirs, personal representatives and assigns.” It was also provided that “ this agreement between the aforementioned undersigned shall be null and void and not binding upon any of the parties in question, in case any one of the above-mentioned property owners shall refuse to agree to its provisions,”</p> <p>At the time said agreement was executed the property of one of the parties to said agreement was subject to a mortgage which was subsequently foreclosed, but the judgment of foreclosure did not mention the restrictive agreement. Said agreement was not mentioned in certain mortgages executed subsequent thereto upon other lands subject to said agreement, which mortgages have also been foreclosed, not was it mentioned in defendant’s chain of title.</p>

<p>Statute of Limitations — application of., to a salary warrant issued by Long Lsland Oity, in an action thereon against the city of New York — an acknowledgment of a debt must be coupled with a promise to pay it.</p> <p>The liability of the city of New York, under sections 4 and 5 of the Greater New York charter (Laws of 1897, chap. 378, as amd. by Laws of 1901, chap. 466), upon a salary warrant issued by Long Island City on December 31, 1895, is identical with that which would have existed against Long Island City if there had been no consolidation.</p> <p>An action begun May 15, 1902, against the city of New York to recover on such a warrant is, consequently, barred by the six years’ Statute of Limitations.</p> <p>An acknowledgment of the existence of a debt, not coupled with a promise to pay the same, will not preclude the debtor from setting up the defense of the Statute of Limitations.</p>

<p>Mcemption from taxation—property used for the purposes of a military school — leasing of the properly by the trustees thereof to the principal of the school for a rent’which is used in the improvement of the buildings and grounds.</p> <p>Where an incorporated academy is conducted both as a day and boarding school and the pupils thereof are required to wear a military uniform and are under military discipline, sleeping rooms, drill rooms, armories and stables, library buildings and buildings occupied by the principal as a residence, recreation grounds and dining rooms, which are a part of the academy foundation and are used in the administration thereof, constitute property used exclusively for educational purposes within the meaning of subdivision 7 of section 4 of the Tax Law (Laws of 1896, chap. 908, as amd. by Laws of 1897, chap. 371), exempting such property from taxation.</p> <p>Subdivision 7 of section 4 of the Tax Law should be applied so as to exempt the entire articulated system of an institution, and not merely the rooms or parts of buildings where tasks are conned or lessons are recited. The criterion is whether the property is exclusively devoted to the use of the academy, in the education which the institution offers to those attendant'upon it, in the sense that education contemplates their mental, moral and physical training, and their proper maintenance while upon the rolls.</p> <p>The fact that the trustees, while reserving all the powers granted to them under their charter, lease the academy for a consideration of $3,000 in excess of the cost of its maintenance, to the principal thereof who conducts it under the supervision and visitation of the trustees, does not establish that the trustees receive pecuniary profit from the academy within the prohibition of subdivision 7 of section 4 of the Tax Law, where it appears that the moneys so received by the trustees are expended by them in improving the academy buildings and grounds.</p>

Appeal by the defendant, Smith Lent, from a judgment of the County Court of Westchester county in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 23d day of November, 1903, reversing a judgment of a justice of the peace of the town of Ossining, and also from an order of said County Court, entered in said clerk’s office on the 30th day of November, 1903, directing a new trial of the action.

<p>Appeal by the defendant, George W. Elder, 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 13th day of April, 1904, awarding the custody of the infant, George W. Elder, Jr., to the relator.</p>

Appeal by the defendant, the Jackson Architectural Don Works, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 5th day of January, 1904, upon the verdict of a jury for $9,000, and also from an order entered in said clerk’s office on the 12th day of January, 1904, denying the said defendant’s motion for a new trial made upon the minutes.

<p>A wife’s inchoate right of dower — it cannot be reached in a judgment creditors action — the right to dower after the husband’s death and before admeasurement is a chose in action.</p> <p>A wife’s inchoate right of dower in real property owned by her husband cannot, during her husband’s lifetime, be reached in a judgment creditor’s action; such inchoate right is not a chose in action, within the provisions of sections 1871 and 1873 of the Code of Civil Procedure.</p> <p>Semble, that the term “chose in action” is properly applied to the wife’s dower right when it becomes consummate by the husband’s death and before it has been admeasured.</p>

<p>Decision — a transcript from a stenographer's minutes, unsigned and undated, is not —a judgment entered thereon may be moated on motion—question of new trial relegated to the Special Term.</p> <p>At the close of a trial before the court without a j ury, the court orally announced its views of the controversy, which statements were recorded by the stenographer in his minutes. The statements were then transcribed and without being entitled, dated or signed, were included in a judgment roll. Judgment was entered without any other decision or findings than this informal and unsigned opinion of the trial court.</p> <p>Held, that the defendant, against whom the judgment was entered, was entitled to have the judgment vacated upon motion;</p> <p>That the order denying the defendant’s motion to vacate the judgment should be reversed, and that upon the question of a new trial the matter should be remitted to the Special Term for such action pursuant to the provisions of section 1010 of the Code of Civil Procedure as might be proper.</p> <p>Hirschberg, P. J., dissented upon the ground that the remedy was by an appeal from the judgment.</p>

<p>Appeal in each of the above-entitled actions by the defendant, The King Line, Limited, 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 23d day of April, 1903, upon the verdict of a jury for $10,000 in the first action and for $8,000 in the second above-entitled action, and also in each action from an order entered in said clerk’s office on the 28th day of April, 1903, denying the defendant’s motion in such action for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Eliza Fairweather, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of May, 1904, granting the defendant’s motion for a reference.

<p> Receiving and registering a money bet on the result of a horse race—placards taken from the poolroom at the time of the arrest, but at a date subsequent to the commission of the offense, are incompetent. </p> <p>Upon the trial of an indictment charging the defendant with the crime of receiving, registering and recording a money bet upon the result of a horse race contrary to the provisions of section 351 of the Penal Code, the chief witness for the prosecution testified that the offense was committed in a certain poolroom April 20, 1903, and that there were placards on the wall of the poolroom stating the names of the horses that were to compete in certain races.</p> <p>There were admitted in evidence, over the defendant’s objection, placards which were taken from the defendant in the poolroom in question at the time of his arrest on May 1, 1903. These placards were not shown to be similar in character to the placards which were alleged to have been on the wall of the poolroom when the defendant committed the offense charged in the indictment nor was any explanatory proof thereof given.</p> <p>The defendant, who was a witness in his own behalf, admitted that the alleged ’ poolroom was a betting place, but denied that he had ever participated in any betting transaction therein, and swore positively that he was not connected therewith. ,</p> <p>The court, after referring to the defendant’s testimony in the course of the charge, said: “ A few days after that this defendant was arrested in this place, and certain things (the placards) found upon him were introduced in' evidence because of the fact that he denied having any connection with this place whatever.”</p> <p>Held, that the placards were inadmissible and that, while in the absence of explanatory proof they did not constitute intelligible evidence of any kind, their admission did not constitute a harmless error because the court treated them as competent and important evidence on the question of the defendant’s credibility.</p>

Appeal by the defendant, Edward Ellsworth, from an order of the County Court of Orange county, entered in the office of the clerk of the county of Orange on the 11th day of January, 1904, confirming the report of commissioners of appraisal appointed in a condemnation proceeding, with notice of an intention to bring up for review upon such appeal a judgment entered on the 29th day of August, 1903, appointing such commissioners of appraisal.

Appeal by the defendant, The Bush Company, Limited, 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 11th day of July, 1904, denying the defendant’s motion to compel the plaintiff to give security for costs.

Appeal by the plaintiff, the New York Mutual Savings and Loan Association, 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 Westchester on the Yth day of July, 1904, denying the plaintiff’s motion for a new taxation of the defendant’s bill of costs so as to disallow an item of $500 for referee’s fees as taxed therein.

Appeal by the plaintiff, Louis Traver, an infant, by Jennie Benson, his guardian ad litem, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of August, 1904, requiring the plaintiff to file security for costs, and also from an order entered in said clerk’s office on the 19th day of August, 1904, denying the plaintiff’s motion for leave to prosecute this action as a poor…

Appeal by the defendant, Anna M. Smith, 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 23d day of September, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by Henry Fernberger, as executor, etc., of Herrmami Weiller, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 19th day of August, 1904, reviving and continuing against him the above-entitled action brought against the said Herrmann Weiller, deceased, in his lifetime.

Appeal by the defendants, the Brooklyn Union Elevated Railroad Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Kings on the 23d day of February, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term.

Appeal by Augusta D. Armfield, individually, and as the person named as executrix of and trustee under a paper purporting to be the last will and testament of William W. Armfield, deceased, one of the defendants in the above-entitled action, as revived, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the cleric of the county of Kings on the 26th day of May, 1904, denying the said defendant’s motion for an order directing…

<p>Appeal by the plaintiff, Anastasia Moran, 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 31st day of December, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, the jury having previously rendered a verdict in favor of the plaintiff for $1,500.</p>

Appeal by the plaintiff, Hamilton J. Davis, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 24th day of March, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term, sustaining the defendant’s demurrer to the plaintiff’s complaint on the ground that it does not set forth facts sufficient to constitute a cause of action.

Appeal by the plaintiff, George Meinliardt, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the. defendant, entered on the 27th day of January, 1904.

Appeal by the defendant, William McAdoo, as police commissioner of the city of New York, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the lltli day of July, 1904, granting an alternative' writ of mandamus directing the defendant to reinstate the relator as complaint clerk of the police department of the city of New York of the bureau of records and complaints thereof.

Appeal by the plaintiff, Edward P. Day, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 11th day of May, 1904, directing certain portions of the amended complaint to be made more definite and certain.

Appeal by the plaintiff, Laura B. Bruns, 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 7th day of June,, 1904, granting the defendant’s motion for leave to serve an amended answer to the plaintiff’s complaint.

Appeal by the defendant, Edward D. Candee, as receiver of the Anglo-American Savings and Loan Association 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 Kings on the 8th day of January, 1904, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, Bernard H. Repelow, from a judgment of the Municipal Court of the city of Hew York, borough of Queens, in favor of the defendant, entered on the 12th day of July, 1904.

<p>Appeal by the plaintiffs, Ernest Johnson and Theodore Johnson, doing business under the firm name of Johnson Brothers, from a judgment of the Municipal Court of the city of New Yorjc, borough of Brooklyn, in favor of the defendants, entered on the 12th day of July, 1904, dismissing the complaint without prejudice to a new action.</p>

Appeal by the plaintiff, Plenry Spring, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 23d day of April, 1904, after a trial before the court without a jury.

Appeal by the plaintiff, Harry Mendoza, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the defendant, entered on the 6th day of June, 1904, sustaining a demurrer to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

<p>Attorney and client — action to determine the extent of and to enforce an attorney’s lien, when maintainable — what services afford a basis therefor—the lien extends to any balance due the attorney — the statutory -provision is not exclusive — when a party contracting with the client is not a necessary party to the action.</p> <p>An attorney, who, under the employment of a contractor who had entered into an agreement with the State of Iowa for the erection of a monument, has rendered services to the contractor out of court, may, without joining the State of Iowa as a party defendant, maintain an action against the contractor to determine the extent of, and to enforce payment of, his lien on the papers of the contractor in his possession and on moneys to become due to the contractor upon the complete performance of the contract.</p> <p>It is not material that the attorney did not commence any action or special proceeding for the contractor, as the existence of an attorney’s lien is not dependent upon the commencement of an action or special proceeding.</p> <p>The statutory lien given to an attorney hy section 66 of the Code of Civil Procedure is not exclusive hut cumulative; the power to ascertain and enforce an attorney’s lieu had been exercised by courts of equity prior to the enactment of the Code provisions.</p> <p>The lien of an attorney upon the papers of his client attaches, not only for costs and charges in the particular suit, but for any general balance in other professional business.</p>

Appeal by the defendant, The Lackawanna Iron and Steel Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of February, 1904, upon the verdict of a jury for $1,700, and also from an order entered in said clerk’s office on the 5th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 21st day of March, 1904, denying the defendant’s motion, made upon the minutes, to set aside the verdict of a jury in favor of the plaintiff for $4,000, and for a new trial of the action.

<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 plaintiffs, entered in the office of the clerk of the county of Erie on the 2d day of January, 1904, upon the verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 28th day of July, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The action was commenced on the 30th day of July, 1903, to recover the damages sustained by the next of kin of James Coleman, deceased, because of his death which occurred on the 20th day of May, 1902, resulting from being struck by the engine of a passengt r train of the defendant while crossing Thompson street in the city of North Tonawanda, N. Y., alleged to have been caused solely by the defendant’s negligence.</p>

<p>Appeal by the defendant, Charles E. Dickinson, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Niagara on the 17th day of February, 1904, denying the defendant’s motion for a new trial made upon the ground that two of the jurors before whom the case was tried were guilty of misconduct during the trial which was prejudicial to the defendant.</p> <p>The action was commenced on the 15th day of February, 1902, to recover $5,339.79, with interest thereon from January 1, 1902, the balance which the plaintiff claimed was due and owing to it from the defendant for furnishing and erecting the structural steel and iron required in the reconstruction of a certain factory building in the city of Lockport, N. Y., under a contract by which the plaintiff obligated itself to complete the work specified on or before the expiration of fourteen weeks from July 27,1901, the date of the contract.</p> <p>The plaintiff alleged that it furnished the material and did the work called for by the contract, admitted that it was not completed within the time specified, but alleged that such result was caused solely through the fault of the defendant, and that except for such fault it would have fully complied with the terms, of the agreement. The defendant, by his answer, admitted the making of the contract and its terms substantially as alleged in the complaint, denied that the failure of the plaintiff to complete the work within the prescribed time was caused by any fault or omission on his part, and alleged that through the neglect and fault of the plaintiff in that regard he sustained damage in the sum of $3,000, which he duly pleaded as a counterclaim.</p> <p>The issues thus framed came on for trial before the court and a jury. About noon of the third day of the trial the plaintiff closed its evidence and rested, defendant’s counsel commenced his opening address to the jury, and while detailing the manner in which certain parts of the building were constructed, was interrupted by one of the jurors, who stated in substance that he knew what the construction was; that he had visited the building that morning and examined it. At the close of the opening the court, upon its own motion, called the juror to the witness stand and he testified that on the morning of that day he and another juror visited the premises and made a thorough examination of the structure, which at the time, concededly, was not in the same condition as when the plaintiff finished the work. The other juror was also examined by the court and testified substantially as did the first one examined. Both stated that their purpose in inspecting the building was to enable them to understand and appreciate the evidence given by the respective parties, and that they were entirely impartial as between them. The court thereupon suggested to plaintiff’s counsel that if a motion was made for an inspection of the premises by the entire jury it would be granted. Such motion was made, and notwithstanding defendant’s objections, the entire jury was put in the custody of officers and directed to inspect the building. Permission was given to counsel to accompany the jury, but defendant’s counsel stated that they would take no part in it. The jury accompanied by the officers did inspect the building and upon their return into court defendant’s counsel objected to any further proceedings being taken in the case upon the ground of the misconduct of the jurors. The objection was overruled, an exception duly taken and the trial proceeded.</p> <p>In his charge the court said : “ The Court has permitted you to go down and look over these premises. That, of course, was not for the purpose of permitting any observation that you made there to interfere with any of the evidence given in this case, because you are bound by the evidence given here. The sole purpose of permitting this inspection was, in the language of the Court of Appeals of this State, to enable the jurors to more accurately understand and more fully appreciate the testimony of the witnesses given upon this trial. And, of course, the view which you made of these premises will be limited strictly to the purposes stated, namely, to enable you to understand and appreciate the testimony given by the witnesses here.”</p> <p>The jury rendered a verdict in favor of the plaintiff for $4,791.66, and judgment was thereupon entered against the defendant for that amount, besides costs.</p>

Appeal by the defendant, The Buffalo Union Furnace Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 10th day of February, 1904, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 18th day of February, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Skidence of personal transactions and, communications with a testator since deceased — incompetent, although the witness, a party in interest, took no pa/rt in them.</p> <p>In an action brought under section 3653a of the Code of Civil Procedure to set aside the probate of a will which disinherited the testator’s children, on the ground that in making such will the testator was controlled by the insane delusion that his wife was unfaithful and his children illegitimate, it appeared that the testator and his wife had been living apart since 1883, at which time, by a separation agreement entered into between the parties, the wife released all her interest in the testator’s property, and by which the testator conveyed to the wife and to three of their children a farm upon which the family resided. This conveyance was effected by a deed from the testator and his wife to one Hogan, who in turn deeded the premises to the wife and children. At the same time the wife gave to Hogan a mortgage upon the premises to secure the payment of $1,000.</p> <p>Upon the trial the plaintiff, who was the testator’s oldest son, was asked: “ Q. Shortly before you left the farm and came to Auburn with your father state what you saw your father do there at the farm which attracted your attention and which you took no part in and had nothing to do with yourself?” The witness stated: “Well, I saw him go around and break most of the machinery that was left on the farm, and I saw him take a corn knife and cut a calf with it underneath the belly. * * Then I saw him roll a big rock up and throw it in the cistern to spring the bottom of it so it would leak, and then when he came away from the house the last thing he did was to get a small fire shovel and take some coals out of the stove and put them on the carpet and then put a rug that laid on the floor on top of the coals, and left them that way, the coals of fire.”</p> <p>The witness further said: “ He (the deceased) acted excited and nervous like and looked wild so that I was afraid of him.” “ I saw him take it (a revolver) out and he says to my mother, ‘Do you want me to divide it with you?’ and he stepped around in front of her and he shot and shot by her and shot out the door; she was standing between him and the door; he shot twice. He pointed the revolver towards her on both occasions. My father did not say a word to me on that occasion, nor I to him. He said nothing to either of the other children on that occasion; they were not there. Mother then left and went to her sister in Waterloo. She didn’t take the children with her at the time. They went to her after. Mother went away immediately without the children.”</p> <p>The witness further stated that at the time his father was “very excited and nervous, and he had a wild look and kind of a grin on his face, and kept making motions all the time before he took the revolver out of his pocket and in the room where he kept his drawer locked up, bed room, then he came out and commenced sticking his hand in his pocket and pulled it out, and then at last he put his hand in his pocket and pulled the revolver out; acted as if he was going to do it, and was kind of afraid to do it or something.”</p> <p>The witness was also asked the following question: “Did you ever see your father and the little boy, Eugene, together; hear anything between them in which you had nothing to do and took no part whatever? ”</p> <p>He testified in answer thereto: “ I did; Eugene was a little fellow, probably three years old, and he wanted something from his father, and I can’t just remember what it was, and his father told him to go away, that he was no boy of his, so he got that idea in his head that his father thought he wasn’t his boy, or something; he used to follow him around quite often and he would say, ‘Pa, I is your boy,’ he would say ‘ go away from me, you ain’t; no, you’re not mine.' He would say, ‘Well, I is, just the same,’ and used to follow him around quite often that way and then cry about it, the young one would, and go in to his mother and say, ‘Pa says I ain’t his boy.’ ”</p> <p>The witness was also permitted to testify that he never saw his father caress or take upon his lap either the little hoy Eugene or his sister Mary.</p> <p>A daughter of the testator, when asked whether she observed anything on her father’s part that attracted her attention, was permitted to testify: “ Why, of course, it was such a common occurrence, I noticed him excited and my mother afraid of him; she was crying; of course, I was quite young and I don’t remember any particular incident; I remember an instance when he came from the field to the house and went through the house; I have seen him do that and he was very excited all the time, specially—J never saw him only (when) some men came to the well for a drink, or some agent came to the door, on some occasion like that; he would come to the house and get excited, but he never said anything in particular to my mother; but he always went through those motions and grinning at her. I can’t say I really ever heard him accuse her.”</p> <p>Held, that the testimony was incompetent under section 839 of the Code of Civil Procedure;</p> <p>That the widow was also incompetent, under that section of the Code, to testify that when she executed the mortgage to Hogan, which was part of the transaction which resulted in the separation agreement, she did not receive the $1,000 which the mortgage was given to secure, nor any part of it.</p>

<p>Statute governing actions for “personal injuries” brought against municipalities having 50,000 inhabitants or over — thewords “personal injuries” include injuries whichresult in death—the words “ after such cause of action shall have accrued” refer to the death — Statute of Limitations.</p> <p>The words “personal injuries,” used in section 1 of chapter 572 of the Laws of 1886, which provides, “No action against * * * any city in this State having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence * * * of said corporation, shall be maintained, unless the same shall be commenced within one year after the cause of action therefor shall have accrued, nor unless notice of the intention to commence such action and of the time and place at which the injuries were received shall have been filed with the counsel to the corporation or other proper law officer thereof within six months after such cause of action shall have accrued,” include injuries resulting in death; the statute applies to an action against a municipality having 50,000 inhabitants or over,' brought by an administrator, pursuant to section 1902 of the Code of Civil Procedure, to recover damages resulting from the death of his intestate.</p> <p>With respect to such an action the one-year limitation prescribed in the statute of 1886 supersedes the two-year limitation prescribed by section 1902 of the Code of Civil Procedure.</p> <p>The words, “after such cause of action shall have accrued,” contained in the act of 1886, refer to the time of the intestate’s death and not to the time when the letters of administration were issued.</p>

Appeal by the relators, the IT. S. Standard Voting Machine Company and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the cleric of the county of Ontario on the 30tli day of July, 1904, denying the relators’ application for a peremptory writ of mandamus.

<p>Town auditors — appeal from an audit thereof to the board of supervisors — notice thereof need not be given to the claimant — technical rules are not applicable thereto—proofs regarding a number of claims may be taken together — a bill containing many illegal items inserted in bad faith may be rejected in toto.</p> <p>Section. 163 of the Town Law (Laws of 1890, chap. 569), providing for an appeal to the board of supervisors of a county from, the determination of a board of town auditors allowing a claim filed against the town, which requires the service of a written notice of appeal on the town clerk and on the clerk of the board of supervisors, is not unconstitutional because it neglects to require the service of a notice of appeal on the claimant.</p> <p>Upon such an appeal the board of supervisors is not required to summon the claimant to appear personally and to explain the items of his account.</p> <p>In the investigation of the claim on the appeal the board of supervisors is not limited by any technical rules.</p> <p>Where there are a large number of claims of like character and dependent upon the same state of facts being investigated by the board of supervisors, the fact that tire boafd elected to hear all the proof which shed any light upon any of the claims, and did not take up and dispose of each claim separately, is not an irregularity.</p> <p>If the claimant, whose bill contained a large number of illegal items, acted in bad faith in presenting such bill, the board of supervisors may properly reject the entire claim, and is not bound to sift out the illegal items in order to uphold the remaining legal items.</p>

Appeal by the plaintiff, Daniel D. Dennison, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 29th day of January, 1904, upon a nonsuit granted by the court at the close of the plaintiff’s case after a trial at the Onondaga Trial Term, and also (as stated in the notice of appeal*) from an order made on the trial of the action directing the dismissal of the complaint.

<p>Appeal by the plaintiff, Susan G-. Erwin, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Steuben on the 10th day of July, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Steuben Trial Term.</p>

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the County Court of Ontario county in favor of the plaintiff, entered in the office of the clerk of the county of Ontario on the 25th day of November, 1903 upon the verdict of a jury for $1,525, and also from an order entered in said clerk’s office on the 25th day of November, 1903, denying the defendant’s motion for a new trial made upon the minutes.

<p>Negligence—flooding of agricultural land with salt water which destroys willows— the measure of damages is the decrease in the value of the land, not the value of the annual crops destroyed—injury to the roots, when considered.</p> <p>In an action brought to recover damages resulting from the flooding, in 1897, of the plaintiff's land with salt water from the defendant’s manufactory, it appeared that the plaintiff’s land was planted with willow roots and that such roots live in the ground for many years and that a crop grows and is harvested therefrom every year. The referee found, respecting the value of the willows lost and destroyed in 1897, as follows: One and forty-seven one-hundredths acres, producing four tons per acre, in all five and eighty-eight one-hundredths tons, at §18 per ton, §105.84; loss on same in year 1898, at §20 per ton, §117.60; loss on same in year 1899, at §20 per ton, §117.60; loss on same in year 1900, at §27.50 per ton, $161.70; loss on same in year 1901, at §20 per ton, §117.60; in all, §620.84.</p> <p>Held, that the damages were estimated on an erroneous theory;</p> <p>That if the willows were actually destroyed, roots and all, in 1897, the measure of the plaintiff’s damages was the difference in the value of the land with and without the roots and that no damages could be awarded for the loss of the several yearly crops;</p> <p>That, if the flooding in 1897 injured the willow roots, so that there was no crop of value that year, and in 1898 the roots still had some life, but the crop of that year was of no value, and so on to the subsequent years, the condition of the roots all along having been the result of the'flood of 1897, and they finally dying outright, still the damages were to the land, to the roots, and not alone to the crop for any one or more years, and should have been considered and proved as such;</p> <p>That, if an attempt were made to recover the value of the willows separate from the land, it would be the value of the willow roots as well as the value of the crop for 1897, and that, when that value was once ascertained, no further recovery could be had.</p>

Appeal by the defendant, William E. Owen, from a final judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 19th day of April, 1900, pursuant to an interlocutory judgment entered in said clerk’s office on the 20th day of January, 1900, upon the decision of the court rendered after a trial at the Erie Special Term, and confirming the report and supplemental report of a referee in and by said interlocutory…

Appeal by the defendants, John F. Heaney 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 Genesee on the 1st day of February, 1904, upon the report of a referee.

Appeal by the defendants, Louise S. Sterling, as administratrix, etc., of William H. Sterling, deceased, 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 Herkimer on the 31st day of January, 1902, upon the decision of the court rendered after a trial at the Herkimer Special Term, also from an order entered in said clerk’s office on the 27th day of January, 1902, amending the plaintiff’s complaint,…

Appeal by the defendant, James C. Fargo, as president of the American Express Company, an association consisting of seven or more persons, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 15th day of July, 1903, upon an order entered in said clerk’s office on the 15th day of July, 1903, affirming a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff, entered on the 30th…

Appeal by the plaintiff, George F. Green, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Niagara on the 22d day of January, 1904, upon the report of a referee dismissing the plaintiff’s complaint.

Appeal by The People of the State of New York from an order of the county judge of Erie county, entered in the office of the clerk of the county of Erie on the 27th day of May, 1904, discharging the said John Cronin from custody.

Appeal by the defendant, Charles H. Gaffey, from a judgment of the County Court of Onondaga county, entered in the office of the clerk of the county of Onondaga on the 3d day of May, 1904, convicting the defendant of the crime of forgery in the second degree, and also from an order entered in said clerk’s office on the 3d day of May, 1904, denying the defendant’s motion for a new trial.

Appeal by the plaintiff, Mary R. Cody, as executrix, etc., of James A. Carey, deceased, 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 1st day of November, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 31st day of October, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Elizabeth Gowland, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Cayuga on the 31st day of December, 1903, upon the decision of the court, rendered after a trial at the Cayuga Special Term, reforming and directing performance by defendant of a contract for the sale of real estate.

Cross-appeals by the plaintiff, Matilda J. Maekenna, and by the defendant, The Fidelity Trust Company of Buffalo, N. Y., from a judgment of the Supreme Court, entered in the office of the clerk of the county of Niagara on the 16th day of March, 1903, upon the decision of the court rendered after a trial at the Niagara Special Term, with notice of an intention on the part of the plaintiff to bring up for review upon such appeal an order of reference entered in said clerk’s…

Appeal by the plaintiff, Elizabeth Roberts, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 24th day of December, 1903, upon the decision of the court, rendered after a trial at the Monroe Special Term, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 24th day of December, 1903, denying the plaintiff’s motion for a new trial upon exceptions…

Appeal by the defendants, Alice I. Weeks and another, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 19th day of August, 1902, upon the decision of the court directing a judgment of foreclosure and sale, with notice of an intention to bring up for review an order entered in said clerk’s office on the 13th day of June, 1902, denying the defendants’ application for an order…

Appeal by Andrew R. Ketcliam, a devisee and legatee of Cornelius Ketcliam, deceased, from a decree of the Surrogate’s Court of Monroe county, entered in said Surrogate’s Court on the 27th day of April, 1904, judicially settling the accounts of Chauncey P. Goss, as executor, etc., of Cornelius Ketcham, deceased.

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

Appeal by the plaintiffs, Clarence O. Bigelow and others, as and constituting the State Board of Pharmacy, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Jefferson on the 14th day of March, 1904, upon the decision of the court, rendered after a trial at the Oneida Special Term, overruling the plaintiffs’ demurrer to the second defense to the third cause of action contained in the defendant’s…

Appeal by the relator, John H. Burns, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of June, 1904, denying the relator’s application for a peremptory writ of mandamus, and also denying his application thereupon made for an alternative writ of mandamus.

<p>Appeal by the defendants, Eleazer W. Edwards and another, from a judgment of the County Court of the county of Onondaga, entered in the office of the clerk of the county of Onondaga on the 17th day of February, 1904, affirming a judgment of the Municipal Court of the city of Syracuse in favor of the plaintiff, entered in the office of the clerk of said court on the 25th day of November, 1903.</p>

Appeal by the plaintiff, Meyer Lichtenstein, from, an order of the Supreme Court, made at the Erie Trial Term and entered in the office of the clerk of the county of Erie on the 17th day of December, 1903, as modified by an order made at the Erie Special Term and entered in said clerk’s office on the 23d day of December, 1903, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff and granting a new trial of the action.

<p>Bailroad—consent by a municipality to the use of its streets—what constitutes a contract between the municipality and the railroad company as to the latter’s obligation to keep the streets in repair — a law impairing its obligations is unconstitutional — construction of the provisions of the Bailroad Law relating thereto — what is not a waiver of such contract rights by the railroad company.</p> <p>The ordinances or resolutions of the common council of a city consenting to the use of its streets by a railroad corporation, when accepted by the corporation, constitute a contract.</p> <p>An ordinance passed by the common council of the city of Rochester January 12, 1869, in reference to the Rochester City and Brighton Railroad Company provided as follows: “ Said company shall, as soon after the adoption of this ordinance as the condition of the streets through which their track is laid will permit, put the surface of said streets inside the rails and for one foot outside thereof,' in good and thorough repair under the direction of the committee on streets and bridges of the common council, and shall thereafter keep said streets in good repair inside its tracks or between the rails of their track, only during the term of five years, and whenever it becomes necessary to improve by ordinance or otherwise, any of the streets through which their track is laid, with a new or permanent improvement, said company shall not be required to make any part or portion thereof, nor bear any part or portion of the expense of making the same, during the term of five years from the adoption of this ordinance.”</p> <p>By chapter 34 of the Laws of 1869 it was enacted: “§ 5. Said company shall put, keep and maintain the surface of the streets inside the rails of its tracks in good and thorough repair, under the direction of the committee on streets and bridges of the common council of said city of Rochester; but whenever any of said streets are by ordinance or otherwise permanently improved, said company shall not be required to make any part or portion of such improvement, or bear any part of the expense thereof, but it shall make its rails in such street or streets conform to the grade thereof.”</p> <p>Meld, that the city ordinance and the act of the Legislature constituted a contract between the city and the railroad company, from the provisions of which neither was at liberty to depart without the consent of the other, and that such contract could not be impaired by subsequent legislation;</p> <p>That from the time of the passage of the ordinance of 1869 to May 6,1884, the date of the enactment of chapter 252 of the Laws of 1884, providing for the construction, extension, maintenance and operation of street surface railroads, the Rochester City and Brighton Railroad Company was not required to make or bear the expense of any part or portion of any permanent improvement of the streets in which its tracks had been laid or any extensions thereof prior to May 6, 1884;</p> <p>That section 9 of chapter 253 of the Laws of 1884, relating to street surface railroads, which provides: “ § 9. Every such corporation incorporated under, or constructing, extending or operating a.railroad constructed or extended under the provisions of this act, within the incorporated cities and villages of this State, shall also whenever, and as required, and under the supervision of the proper local authorities have and keep in permanent repair the portion of every street and avenue between its tracks, the rails of its tracks and a space two feet in width outside and adjoining the outside rails of its track or tracks so long as it shall continue to use such tracks so constructed under the provisions of this act,” did not apply to the existing lines of a street railroad corporation organized previous to the enactment of that statute, but only to extensions of such existing lines thereafter constructed;</p> <p>That, assuming that section 9 was intended to apply to the entire railroad of any existing street surface railroad company extending its lines under the provisions of the act of 1884, the section was unconstitutional with respect to the Rochester City and Brighton Railroad Company, in that it violated the existing contract, embodied in the ordinance of 1869, between the city of Rochester and the Rochester City and Brighton Railroad Company;</p> <p>That the railroad company did not waive the right secured to it by the ordinance of 1869 to be exempt from the payment of any part of the cost of laying new pavements in streets in which its railroad had been laid prior to the enactment of the statute of 1884, by assenting to the terms and conditions upon which the city, in December, 1894, confirmed the location of the railroad company’s tracks, one of which conditions was that the railroad company should comply with article 4 of the General Railroad Law (Laws of 1890, chap. 565), which is a codification of chapter 252 of the Laws of 1884;</p> <p>That the special acts passed in 1899 and 1901, by which the Legislature assumed to authorize the city of Rochester to assess upon the Rochester Railway Company a portion of the expense of laying new pavements in streets in which its predecessor, the Rochester City and Brighton Railroad Company, had obtained its franchise and constructed its road prior to the enactment of chapter 852 of the Laws of 1884, were void in that they impaired the contract between the railroad company and the city embodied in the ordinance of 1869.</p>

<p>Appeal by the Comptroller of the State of New York from an. order of the Surrogate’s Court of the county of Steuben, entered in said Surrogate’s Court on the 7th day of April, 1904, affirming an order of said Surrogate’s Court entered on the 11th day of January, 1904, fixing a tax upon the transfer of the property of the estate of John W. Davis, deceased, under the Taxable Transfer Act.</p> <p>The appraiser appointed by the Surrogate’s Court of Steuben county to appraise the property and to fix and determine the value of the transfer tax chargeable on the estate of John W. Davis, deceased, fixed the market value of the real and personal property which passed to Jennie F. Lyon by the will of said decedent at $27,480.70, and reported that she was liable to pay a tax thereon at the rate of five per cent. The report has been modified by the decree of the Surrogate’s Court by striking out the tax upon the real property and reducing to one per cent that to be imposed upon the personal property bequeathed to her.</p>

<p>Negligence—a railroad company permitting people to cross its tracks at a place not a public crossing must give warning of the approach of its trains—when a pedestrian is negligent in crossing the tracks when, a train is within his view — obscuration of the view with smoke — noise of another approaching train.</p> <p>A railroad company, which, each day for many years, has, without protest or hindrance, permitted hundreds of pedestrians to cross its tracks at a point which is not a regular public crossing, is required to give some warning of the approach of its trains for the benefit of the pedestrians thus crossing its tracks.</p> <p>Where, in an action brought to recover damages resulting from the death of the plaintiff’s intestate, who was struck and killed while he was crossing the defendant's railroad tracks by an east-bound train, which had given no signal of its approach, it appears that the deceased was very familiar with the surroundings and that for a distance of thirty-six feet along the course taken by him he had an uninterrupted view to the westward of five or six hundred feet, a judgment entered upon a verdict in favor of the plaintiff should be reversed, notwithstanding that there was evidence tending to show that the noise of the east-bound train was drowned by a passing west-bound train, and that the view of the east-bound train was obscured by steam and smoke from the west-bound train. These circumstances only increased the degree of diligence which the deceased was called upon to exercise before crossing the east-bound track.</p>

<p> Action to set aside an assessment to the D. B. 8. Brown estate—waiver of the defeat by acquiescence for years in such assessment and by not presenting the objection to the name when others were made on grievance day—what objection does not raise the question. </p> <p>In an action brought to set aside a sewer assessment levied upon lands which the plaintiffs had acquired under the will of their father, Dyer D. S. Brown, because such assessment had been made to the D. D. S. Brown estate, instead of to the owners or occupants thereof, it appeared that for many years the premises had been assessed to the D. D. S. Brown estate and that on one occasion one of the plaintiffs, when informed that it was assessed to the estate, told the assessors to leave it so assessed; that on the grievance day appointed for the hearing of objections to the sewer assessment the plaintiffs, one of whom was a lawyer and one a civil engineer, filed a number of written objections to the assessment, which, however, did not include the objection that the assessment was levied against the D. D. S. Brown estate.</p> <p>Held, that the assessment to the D. D. S. Brown estate instead of to the owners or occupants of the estate was defective, but that, even conceding that such defect was jurisdictional, the plaintiffs had power to waive the same;</p> <p>That their conduct in acquiescing for many years in the assessment of the land to the estate of their father and in not making the form of the assessment one of the objections urged by them on grievance day amounted to such a waiver, especially as the assessors could have corrected the defect had it been pointed out on grievance day;</p> <p>That the following written objection presented by the plaintiffs on grievance day, to wit: “ That the present assessments and all proceedings relating thereto are illegal and void,” was not sufficient to raise the question as to the form of the assessment.</p> <p>McLennan, P. J., and Hiscock, J., dissented.</p>

Appeal by the petitioners, Augustus B. Kellogg and another, as executors, etc., of Edwin L. Burdick, deceased, from an order of the Surrogate’s Court of the county of Erie, entered in said Surrogate’s Court on the 25th day of November, 1903, construing the 4th clause of the last will and testament of said deceased.

<p>Agreement to give a pass while a railroad company uses certain easements — its b'each gives a cause of action for damages, not for the ejectment of the railroad company from the easements—when a complaint alleging such a breach is demurrable.</p> <p>A provision in a conveyance to a railroad company of certain easements and privileges, by which the railroad company, as part of the consideration for the grant, agrees to provide “ a Family Pass for the party of the first part, her husband and her daughter to ride over the whole line of its said road ” as long as it retains possession of the easements and privileges granted, is a personal covenant and not a condition or limitation on the railroad company’s title to the easements and privileges conveyed to it.</p> <p>Consequently, in the event of the breach of this provision of the conveyance by the railroad company, the grantor is not entitled to a judgment ejecting the railroad company from the easements and privileges granted, but only to recover the damages which she has sustained by reason of the breach.</p> <p>The complaint in an action, brought by the grantor against the railroad company, set up the breach of the agreement and demanded that the railroad company be ejected from the enjoyment of the easements and privileges granted, and that the plaintiff be awarded the sum of $500 as damages for the withholding of such easements and privileges and that she be awarded such other and further relief as might be just and equitable. The complaint did not allege that the plaintiff had suffered any damages from the failure of the defendant to furnish the family pass provided for in the agreement.</p> <p>Held, that a demurrer interposed to the complaint on the ground that it did not state facts sufficient to constitute a cause of action should be sustained;</p> <p>That such a demurrer should not be overruled upon the theory that nominal damages would be presumed to result from the breach of the agreement set forth in the complaint, and hence that the complaint, although not framed upon that theory, stated a good cause of action to recover such damages.</p> <p>Houghton, J., dissented.</p>

<p>Appeal by the plaintiff, the Hudson River Power Transmission Company, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 4th day of April, 1904, upon the decision of the court, rendered after a trial at the Saratoga Special Term, overruling the plaintiff’s demurrer to certain counterclaims and defenses contained in the defendant’s answer.</p> <p>The plaintiff, “ the Hudson River Power Company,” brings this action against the defendant, “ the United Traction Company,” to recover damages for a breach of contract entered into and bearing date August 1, 1901. The defendant interposed a long answer, consisting of twelve separate defenses. To the 9th, 10th, 11th and 12th of such defenses the plaintiff demurred separately, substantially on the ground that it was insufficient in law upon the face thereof. Upon the trial of such demurrers the defendant attacked the plaintiff’s complaint upon the ground that it. did not state a cause of action. The trial judge so held, and, therefore, overruled the demurrers. From the interlocutory judgment entered thereon this appeal is taken.</p>

<p>Negligence — driving off of a bridge, nine feet between abutments, having no side railing.</p> <p>In an action brought to recover damages for personal injuries, it appeared that the plaintiff was riding in a buggy, as the guest of the driver thereof, along a highway in the defendant town on a very dark night; that, while crossing a bridge in said highway, the horse and buggy went off the side of the bridge and that the plaintiff was injured.</p> <p>The bridge was nine feet between the abutments, and the planks thereof were from twelve to fourteen feet in length. Such bridge had no side railings, but the rail fence, which approached it from either side, extended upon the bridge for a distance of about a foot and a half or two feet. The town had in it two hundred miles of highways and between three and four hundred bridges upon which there were three planks or more, and as many more smaller bridges. The highway in the vicinity of the bridge in question was substantially straight and was well defined, there being large rocks and stones at the side thereof which would warn a traveler if he should depart therefrom in the night time.</p> <p>Held, that a judgment entered upon a verdict in favor of the plaintiff should be reversed, as, under the circumstances, no negligence on the part of the highway commissioner could be predicated upon the failure to place guard rails at the side of the bridge in question.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 9th day of April, 1904, directed to Charles I. Webster, commissioner of public safety of the city of Troy, N. Y., requiring him to certify and return to the office of the clerk of the county of Rensselaer all and singular his proceedings had in dismissing the relator from the position of chief of police of the city of Troy.</p>

Certiorari issued out of the Supreme Court and attested on the 28th day of May, 1903, directed to Nathan L. Miller, as Comptroller of the State of New York, requiring him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in refusing to resettle a tax imposed upon the relator as a license tax, and also one imposed upon the relator for carrying on-business within the State of New York.

<p>Appeal by the defendant, the Prudential Insurance Company of America, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Warren on the 11th day of June, 1903, upon the verdict of a jury, and also from an order bearing date the 4th day of June, 1903, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>Upon the 9th day of December, 1901, the defendant insured the life of one Achsah Pierce for the sum of $235, with a provision in the policy that if she died within the first year the liability should only be one-half of that amount. This plaintiff sues as her executor upon said policy. On the seventh day of December the said Achsah Pierce made an application to the defendant for the insurance, in which she warranted as true the answers to the questions asked in the application. In that application she stated that the present condition of her health was good ; that she was never seriously sick; that no physical or mental defect or infirmity existed, and that she liad never suffered from cancer. At" the close of the evidence the defendant moved to dismiss the complaint upon the ground that it appeared from the uncontradicted evidence that she was not in good health at the time of the application for the policy, and that at that time she was suffering from a cancer. This motion the court denied. The case was thereafter submitted to the jury which returned a verdict for the plaintiff, upon which judgment was entered. From the judgment so entered and the order denying a motion for a new trial the defendant here appeals.</p>

<p> Action by a parent to recover damages because of liquor sold to her son under eighteen years of age—what complaint does not state a cause of action at common law or under the Liquor Tax Law. </p> <p>The complaint in an action alleged that the plaintiff was the mother of a boy under eighteen years of age and that the defendant was a dealer in intoxicating liquors; “ that within two years next prior to the commencement of this action defendant did wrongfully and unlawfully sell to, give to and permit her said son to have, and to drink and carry away with him in bottles and otherwise, on and from the said premises of defendant intoxicating liquors, whiskey, wine and beer. That said sales and gifts of said intoxicants to said minor were at different times, including sales and gifts on Sundays, during said period. That said son lived at home during this period and plaintiff was injured by loss of his services, occasioned by said son spending his time and earnings and forming bad habits in and about the defendant’s said premises buying and receiving said intoxicants from defendant to plaintiff’s damage in the sum of One Thousand Dollars.”</p> <p>The plaintiff also alleged that whatever cause of action the father of said infant may have had against the defendant because of the facts alleged had been duly assigned to her. She did not allege that she had sustained any damage by reason of the intoxication of her son.</p> <p>Held, that the facts stated in the complaint were not sufficient to constitute a cause of action under section 39 of the Liquor Tax Law (Laws of 1896, chap. 112) authorizing the recovery of damages in a civil action for the selling or giving away of intoxicating liquors under the circumstances mentioned in such section;</p> <p>That the complaint did not state a cause of action under section 30 of the Liquor Tax Law (as amd. by chap. 312 of the Laws of 1897) which prohibits the sale or gift of liquors to a person under the age of eighteen years, as the violation of that section docs not render the offender liable to an action of the nature of the one at bar, but subjects him to civil penalties and criminal punishments which can only be recovered or imposed in the manner provided by the statute;</p> <p>That the complaint did not state a cause of action at common law, as the basis of such an action would be the loss of the infant’s services, and it was not alleged that the defendant’s acts had ever prevented the son from performing such services as the plaintiff or his father were entitled to require from him.</p>

Appeal by the plaintiff, Patrick J. McArdle, from a judgment of the Supreme Court in favor of tlie defendant, the German Alliance Insurance Company, entered in the office of the clerk of the county of Albany on the 11th day of April, 1901, upon the decision of the court, rendered after a trial at the Albany Trial Term, the case having been taken from the jury, dismissing the complaint as to the said insurance company.

<p>Appeal by the plaintiff, Miles T. Cassada, from a judgment of the Supreme Court in favor of the defendant Ludwig Stabel, entered in the office of the clerk of the county of Chemung on the 2d day of November, 1903, upon the decision of the court, rendered after a trial at the Chemung Special Term, dismissing the plaintiff’s complaint upon the merits.</p> <p>On the 22d day of November, 1899, the plaintiff in consideration of $500 sold and conveyed to the defendant Ludwig Stabel a house and lot by a deed which included a covenant for quiet and peaceable possession. Said defendant paid $50 on account of said purchase price and on the same day executed and delivered to the plaintiff a mortgage on said real property for $450 to secure to the plaintiff the balance of said purchase price, which mortgage was conditioned to pay $450 in yearly payments of $50 each, together with the interest. Said defendant entered into the possession of said real property and thereafter paid the interest and $50 of principal which became due and payable November 22, 1900, and also the interest and $50 of principal which became due and payable November 22,1901, as provided by the terms of the mort gage. On the 15th day of September, 1902, the defendant Ludwig Stabel went to live in an adjoining city, and on the eighteenth day of September his wife, the defendant Maggie Stabel, and the other members of his family moved from the house on said real property to join the defendant Ludwig Stabel in said city. On September seventeenth the plaintiff asked for the keys of the house and was told by the defendant’s daughter that her father wanted to keep the place and that he would not give up the keys. The house was securely fastened before the defendants left it and the keys were taken away with them. There were two doors, one of which was locked and the other door and the windows were nailed. There was nothing then due the plaintiff on said mortgage. After the defend - ants left the house the plaintiff procured a ladder and entered the house from an upper window and removed the lock from the front door and placed a new lock thereon with which he locked the house and retained the key. Ludwig Stabel soon thereafter had an opportunity to rent the house, but did not do so, because he was unable to get into the house. Thereafter, and about March 9,1903, the plaintiff entered into a contract with one Bowman by which he agreed to sell and convey to the said Bowman the said house and lot in consideration of $500 to be paid as in said contract provided and upon payment of which the plaintiff agreed to convey said real property to Bowman by a good and sufficient deed free from incumbrances. Upon the execution and delivery of said contract the plaintiff delivered to said Bowman the possession of said real property and he has ever since retained the possession thereof. On the twenty-eighth day of April thereafter this action was commenced to foreclose said mortgage by reason of the defendant’s having failed and omitted to pay the sum of fifty dollars of principal which became due and payable on the 22d day of November, 1902, and twenty-one dollars interest which became due and payable on said day. The defendant Ludwig Stabel answered the plaintiff’s complaint alleging a breach of the plaintiff’s said covenant of quiet and peaceable possession by reason of the plaintiff’s having evicted him from said real property and also that by reason of such eviction there was a failure of consideration of said mortgage, and as a counterclaim said defendant sought to recover from the plaintiff the amount paid by him on account of the purchase price of said real property with interest and for certain permanent improvements made by him to said real property, and with the answer said defendant offered to deliver to the plaintiff a quitclaim deed of said real property properly executed by the defendants to the plaintiff. On the trial said deed was produced and tendered to the plaintiff and the same now remains in court subject to the plaintiff’s direction. The court found the facts substantially as above stated including a finding as follows: “ That on or about the said 15th day of October, 1902, the plaintiff broke and entered into the said premises and ousted the defendants therefrom and has since deprived them of the use and enjoyment thereof.”</p> <p>■ As conclusions of law the court found “ That the entry by the plaintiff and his subsequent acts were of themselves equivalent to an actual eviction of the defendant by an action at law founded upon a title paramount to that which the plaintiff conveyed to the defendant Ludwig Stabel, and constituted a breach of the covenant for quiet and peaceable possession contained in the deed.”</p> <p>“ That the eviction is a complete defense herein to any recovery upon the bond or mortgage mentioned and described in the complaint,”</p> <p>The court also found that the defendant was entitled to recover of the plaintiff the amount of the principal paid by him on account of the purchase price of said premises. From the judgment entered upon the decision of the court this appeal is taken.</p>

Appeal by the plaintiff, Andrew M. Rollins, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 19th day of April, 1904, upon the decision of the court, rendered after a trial at the Saratoga Trial Term, a jury having been waived, dismissing the complaint upon the merits.