Volume 99 — New York Appellate Division Reports

Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 19th day of March, 1904, upon the verdict of a jury for $15,000, and also from an order entered in said clerk’s office on the 21st day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Metropolitan Life Insurance Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chenango on the 8th day of October, 1903, upon the verdict of a jury, 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 defendant, The Ulster and Delaware Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 14th day of March, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 8th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p> <p>The defendant was in the habit of selling, at the office in Kingston only, mileage books for use upon its road. One Leroy E. Parish, the husband of the plaintiff, applied to the local agent at Hobart to send and get him a 500-mile book, and gave him ten dollars with which to pay for it. The book was to be made Out to his wife, and he gave the initials “ H. M.” Parish as her initials. It is provided upon the face of the book that during the months of June, July and August it is good only for the person in whose name it is issued, and shall be taken up and forfeited if presented by any other person. During the other months of the year it is good for use of the family of the person named therein. The agent sent the ten dollars to the office at Kingston, and a book was returned, issued to “ Mr. H. M. Parish.” The agent delivered the book to Leroy E. Parish, and he delivered it to his wife on or about the 20th day of May, 1902.</p> <p>As soon as she received it the plaintiff noticed that it was made out to “ Mr. H. M. Parish,” and she explained it to the conductor to whom she first presented it some time in May ; that it.was intended to be issued to her and not to Mr. Parish, and that she had signed her name at the bottom of it, and that conductor permitted her to ride upon it. Several times afterwards, prior to August sixth, she also rode upon the book. On the last-mentioned date, however, she presented the book to the conductor of a train which she boarded at Hobart and sought to ride thereon. The conductor declined to receive the book as fare, saying it was issued to “ Mr.” Parish and his orders were to enforce the rules of the company; that she must pay her fare - or get off of the train. The plaintiff refused to pay and got off.</p> <p>The next day she wrote to the company, explaining the situation, and on August eighth or ninth she received a letter in reply from the general superintendent, telling her that she should have “ declined to receive ” the book if it was not properly filled out; that conductors have strict instructions to see that passengers comply with the rules printed on the ticket, and that if she held a ticket issued in the name of Mr. H. M. Parish the conductor had no right to honor it for her passage, and also telling her that in order to avoid further trouble she should send the ticket to his office for correction.</p> <p>She never sent the book back for correction nor made any attempt to do so, but on the twenty-third of August she again took a train at Davenport Center, which was run by the same conductor that had previously declined to receive the book. He again declined to receive it, and told her that she must get off or pay her fare. She refused to get off, and the conductor put her' off. It is very clear from the evidence that he used no more force than was necessary to do so. Her own statement shows that. For being put off of the train upon these two occasions the plaintiff has brought an action against the defendant for an assault and battery on the part of its conductor. She recovered a verdict at the Trial Term of $1,000, and from the judgment entered thereon and from an order denying a new trial this appeal is taken.</p>

Appeal by the defendant, David D. Provost, from a judgment of the County Court of Fulton county, entered in the office of the clerk of the county of Fulton on the 17th day of February, 1904, upon an order of said County Court affirming a judgment of the Justice’s Court of the city of Gloversville, 2SF. V., in favor of the plaintiff, entered on the 31st day of July, 1903.

Appeal by the defendant, Elizabeth Owen, from a judgment of the County Court of Chemung county in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 12th day of March, 1904, upon the decision of the court, rendered after a trial before the court without a jury, directing the foreclosure and sale of the premises described in the complaint.

Appeal by Adelbert Rugg and another, judgment debtors, from an order of the county judge of Chenango county, entered in the office of the clerk of the county of Chenango on the 14th day of March, 1904, denying the said judgment debtors’ motion to vacate an order made by said county judge on the 1st day of March, 1904, to examine the First Rational Bank of Earlville by its cashier and to vacate the injunction order therein contained.

Appeal by the plaintiff, Hamilton Doney, as administrator, etc., of Jennie E. Doney, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in tne office of the clerk of the county of Saratoga on the 19th day of January, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Saratoga Trial Term, and also from an order entered in said clerk’s office on the 22d day of January, 1904, denying the plaintiff’s motion for…

Appeal by the plaintiff, William E. Gifford, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Madison on the 15th day of June, 1904, granting among other things the defendant’s motion to bring in certain persons as defendants. William Roberts died in January, 1896. He left him surviving a widow, Fannie L. Roberts, and four children, one of whom is Emma Gifford, the wife of this plaintiff.

Appeal by the defendants, Mary A. Loveland and another, from an order of the Supreme Court, made at the Fulton Special Term and entered in the office of the clerk of the county of Warren on the 2d day of May, 1904, denying the said defendants’ motion to vacate a judgment theretofore entered in the above-entitled action. The action is brought for the foreclosure of a mortgage. The defendants are the widow and son of the mortgagor who died intestate.

<p>lee cutting on the Hudson river — right of one who has staked out a field to an injunction to prevent a manufacturer on the shore from allowing coal dust, etc., to Mow upon the ice—right of the Legislature to qualify the rights given by chapter 953 of the Laws of 1895, as amended by chapter 354 of the Laws of 1899, and by chapter 749 of the Laws of 1904.</p> <p>An owner of land abutting upon the Hudson river brought an action to enjoin the operation, during the winter season, of a cement manufactory located upon the shore of that river, on the ground that coal dust, cinders and dirt were carried by the wind from the cement plant upon the ice, thereby rendering it unmerchantable. The plaintiff’s rights were claimed to exist under chapter 953 of the Laws of 1895, as amended by chapter 264 of the Laws of 1899. After the plaintiff had obtained an injunction pendente lite in the action, chapter 749 of the Laws of 1904 was passed, which amended the act of 1895 by adding thereto the following provision: “ Nothing contained in this act, however, shall be construed as in any manner affecting, impairing or interfering with the right of any owner, lessee or occupant of lands bordering upon or adjacent, to the Hudson river or Catskill creek to the unrestricted use of the premises owned, leased or occupied by him for any lawful purpose.”</p> <p>Upon an appeal from the order granting the injunction pendente lite, it was Held,, that, assuming that the act of 1895, as amended by the act of 1899, entitled the plaintiff to the injunction sought, such right was defeated by the amendment of 1904;</p> <p>That the action being one in equity and the act of 1904 being a public one, it was the right and duty of the Appellate Division to take cognizance of the amendment of 1904 and to reverse the order granting the injunction pendente lite; That no property right was given so irrevocably by the act of 1895, as amended by the act of 1899, that it could not thereafter be qualified by a subsequent enactment permitting the unrestricted use of other property upon the banks of the Hudson river for a lawful purpose.</p> <p>Appeal by the defendant, the Catskill Cement Company, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 29th day of February, 1904, continuing pendente lite an injunction theretofore granted in the action.</p>

.Appeal by the plaintiff, James G. Byars, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 19th day of March, 1904, upon the dismissal of the complaint by direction of .the court after a trial at the Rensselaer Trial Term, and also from an order made at such Trial Term and entered in said clerk’s office on the 19th day of March, 1904, directing the dismissal of the complaint.

<p>Appeal by the plaintiff, John Wright, from a judgment of the County Court of Delaware county in favor of thff defendant, entered in the office of the clerk of the county of Delaware on the 12th day of May, 1904, upon the verdict of a jury, and also from, an order entered in said clerk’s office on the 12th day of May, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

<p> Alimony “as long as she shall live”—when the payment is secured by a mortgage the obligation survives the husband—when not secured it does not. </p> <p>Where a judgment of absolute divorce granted in favor of a wife provides for the payment to the wife of a certain sum per year as alimony “ so long as she shall live,” and that the payment of such alimony shall be secured by a mortgage upon certain property, the death of the husband, subsequent to the execution of the mortgage, does not terminate the lien of the mortgage nor prevent the wife, in the event of the failure of the deceased husband’s devisee to pay the alimony accruing after the husband’s death, from foreclosing the mortgage.</p> <p>Semble, that, unless a judgment of absolute divorce, providing for the payment of alimony to the wife as long as she shall live, requires the alimony to be secured by a lien upon real property, the provision that it be paid so long as the wife shall live is not operative after the death of the husband.</p> <p>Houghton, J., dissented.</p>

Appeal by the defendant, the Schenectady 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 Schenectady on the 19th day of March, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Isaiah Walker, from an order of the Supreme Court, made at the St. Lawrence Trial Term and entered in the office of the clerk of the county of St. Lawrence on the 2d day of October, 1902, setting aside the verdict of a jury theretofore rendered in favor of the plaintiff and granting a new trial of the action. The defendant is a domestic corporation engaged in the manufacture of paper.

Appeal by the plaintiff, Patrick Crowley, from a judgment of the Court of Claims in favor of the defendant, entered in the office of the clerk of the Court of Claims on the 20th day of January 1904, dismissing the plaintiff’s claim.

<p>Appeal by the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Columbia Special Term and entered in the office of the clerk of the county of Columbia on the 10th day of June, 1904, appointing James Callahan committee of the person and estate of Charles F. Callahan, an incompetent person, and substituting the said committee as plaintiff in this action.</p> <p>On the 13th day of December, 1902, Charles F. Callahan, who was then about fifteen years of age, was in the employ of the defendant. He fell into a pit in one of the defendant’s roundhouses and was injured. It is alleged that the injury was caused by the negligence of the defendant. On the 12th day of November, 1903, he was committed to the Hudson River State Hospital by an order of the Columbia county judge upon the certificate of two medical examiners in lunacy. On the 10th day of December, 1903, at Special Term, on the petition of said Charles F. Callahan, J ames Callahan, the father of said Charles F. Callahan, was appointed guardian ad Utern of said Charles F. Callahan for the purposes of this action. This action was commenced in the name of Charles F. Callahan, an infant, by James Callahan, his guardian ad litem, on the 11th day of December, 1903. On the 31st day of March, 1904, the defendant served its amended answer, in which it alleged, among other things, that the plaintiff had no legal capacity to sue, for the reason that prior to the granting of the order appointing J ames Callahan a guardian ad litem, and prior to the commencement of the action, plaintiff was adjudged insane.</p> <p>On the 23d day of April, 1904, on the application of the superintendent of said hospital, the Special Term appointed said James Callahan committee of the person and estate of said Charles F. Callahan. On an affidavit setting forth said facts a motion was made at Special Term for an order joining said James Callahan as committee of the person and estate of said Charles. F. Callahan, an incompetent person, with said James Callahan as guardian ad litem of said Charles F. Callahan, an infant, as parties plaintiff in the action and for time thereafter to amend the plaintiff’s pleading accordingly. The court granted an order “ That for the purposes of this action the appointment of the said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, be made nune pro tune as of the time of the commencement of this action ; and it is further ordered that James Callahan, as committee of the person and estate of Charles F. Callahan, an incompetent person, be substituted as plaintiff in the above-entitled action, and that as thus amended the said action be continued and maintained in the name of said James Callahan as committee of the person and estate of Charles F. Callahan, an incompetent person, plaintiff; and that said plaintiff may have twenty days’ additional time from the 4th day of June, 1904, wherein to make and serve an amended complaint herein or otherwise to proceed herein as he may be advised.” ■ From such order this appeal is taken.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 7th day of May, 1901, directed to Erastus C. Knight, as Comptroller of the State of New York, directing him to certify and return to the office of the clerk of the county of Albany all and singular his proceedings had in relation to the assessment of a franchise tax against the relator for the years ending October 31, 1898, and October 31, 1899, and in relatioh to the revision and readjustment of the same.</p>

Appeal by the plaintiff, Sara Belle G-riffen, from an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Tompkins on the 29th day of August, 1904, modifying and limiting an order theretofore entered in the action for the examination of the defendant before trial.

Appeal by the defendant, The Fidelity Fire Insurance Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Chemung on the 31st day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 11th day of April, 1903, denying the defendant’s motion for a new trial made upon a case containing exceptions.

<p>Appeal by the defendant, the Catholic Relief and Beneficiary Association, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Albany on the 19th day of January, 1904, upon the verdict of a jury, and also from an order denying the defendant’s motion for a new trial made upon the minutes. The record, however, does not contain this order.</p>

<p>Gift of a savings bank deposit book causa, mortis — what cure the essential elements thereof— where the bank pays with knowledge of a /depositor’s death, it is not protected, by a rule that “ all payments made to persons producing the pass book” are good.</p> <p>In an action brought by the administrator of De Witt Ames against the Elmira Savings Bank to recover moneys which had been deposited in the bank by Ames and which the bank had paid over to Margaret Peckham subsequent to the death of Ames, it appeared that on April 7,1902, Ames was ill with typhoid fever; that he was being nursed by the said Margaret Peckham to whom he was engaged to be married in the then near future; that, apprehending that he would not recover from his illness, he executed an instrument attested by two disinterested witnesses directing the bank to “let Mrs. Margaret Peckham sign the signature book and change my account so that she or myself can draw the money on deposit in your bank.”</p> <p>He delivered the instrument, together with the pass book, to the said Margaret Peckham, declaring to the subscribing witnesses at the time that if anything happened to him he wanted Margaret Peckham to have the money which he had in the bank. The said Margaret Peckham, on the same day, delivered the instru - ment and pass book to the defendant bank and signed the signature book of the defendant with the word “or” between Ames’ name and her own. The defendant changed the pass book and its ledger to read, “De Witt Ames or Mrs. Margaret Peckham, Or.”</p> <p>At the time of the execution and delivery of the instrument of April 7, 1902, the pass book was in a drawer of a desk belonging to the said Margaret Peckham in which drawer De Witt Ames kept his papers and to which both Ames and Margaret Peckham had keys and access. After the transaction with the said bank, the said Margaret Peckham replaced the pass book in the drawer, where it remained until after the death of Ames, which occurred on April 17, 1902. Subsequent to Ames’ death, the bank, with knowledge thereof, paid the amount of the deposit to Margaret Peckham upon the delivery of the pass book to it.</p> <p>A rule of the bank provided that “ all payments made to persons producing the pass book shall be deemed good and valid payments to the depositors respectively, and shall discharge the Bank from any further liability.”</p> <p>Held, that the bank having had notice of Ames’ death, the rule quoted did not protect it from liability to Ames’ administrator if the deposit actually belonged to the estate of Ames;</p> <p>That such moneys did not belong to the estate of Ames, for the reason that it appeared that Ames had made to Margaret Peckham a valid gift causa mortis of the moneys on deposit;</p> <p>That the essential elements of such a gift are, that it must have been made in contemplation of the donor’s impending death, by a clearly expressed intention to give in prcesenti; the subject-matter of the gift must have been delivered and the donor must have died from the existing ailment or peril without revocation of the gift.</p> <p>Parker, P. J., dissented.</p>

Appeal by Josephine H. Dunning from so much of a decree of the Surrogate’s Court of the county of Chenango, entered in said Surrogate’s Court on the 31st day of March, 1902, as adjudges a certain note for $2,275 held by Louis P. Blair to be a legal and valid claim against the estate of Phebe A. Hiller, deceased.

<p>Certiorari issued out of the Supreme Court and attested on the 12th day of March, 1901, directed to The Board of Railroad Commissioners of the State of New York and George W. Dunn and others, as Railroad Commissioners of the State of New York, and constituting the Board of Railroad Commissioners of the State of ¡New York, commanding them to certify and return to the office of the clerk of the county of Albany all and singular their proceedings had in granting The Ithaca-Cortland Traction Company a certificate that public convenience and a necessity require the construction of a railroad to be operated by electricity between the cities of Ithaca and Cortland.</p>

<p>Appeal by the relator, Elijah Lazarus, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Chemung on the 22d day of June, 1904, denying the relator’s application for a peremptory writ of mandamus.</p>

Appeal by the defendant, The Town of Kinderhook, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 4th day of March, 1904, upon the decision of the court rendered after a trial at the Columbia Special Term overruling the said defendant’s demurrer to the plaintiff’s complaint.

Appeal by the defendant, The Provident Life and Trust Company of Philadelphia, Penn., from a judgment of the Supreme Court in favor' of the plaintiff, entered in the office of the clerk of the county of Ulster on the 15th day of April, 1904, upon the verdict of a jury,-and also from an order entered in said clerk’s office on the 20th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal.by the defendant, Robert H. Keller and by Idene Dayton Denison, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Rensselaer on the 2d day of May, 1904, granting the plaintiff’s motion to make Idene Dayton Denison a party defendant, and for leave to serve a supplemental summons and an amended complaint.

<p>Highway Load, § 10 — authority of the town board to authorize the rebuilding of an unsafe bridge — meaning of the words “or become unsafe” — a commissioner of highways is not a general agent of the town.</p> <p>Section 10 of the Highway Law (Laws of 1890, chap. 568, as amd. by Laws of 1899, chap. 84), which provides, “If any highway or bridge shall at any time be damaged or destroyed by the elements or otherwise or become unsafe, the commissioner of highways of the town in which such highway or bridge may be, may cause the same to be immediately repaired or rebuilt if consented to by the town board,” does not empower the highway commissioner of a town, upon determining that a highway bridge has become unsafe from natural wear and decay, to make, with the approval of the town board, a contract for the rebuilding of such bridge at a cost exceeding the moneys appropriated for " highway purposes.</p> <p>The phrase “or become unsafe,” used in that section, means an unsafe condition arising from extraordinary causes.</p> <p>A commissioner of highways is not a general agent of a town, and has no author-. ity to make contracts in its behalf unless specially authorized by statute.</p> <p>Parker, P. J., dissented.</p>

Appeal by the plaintiff, James E. Kent, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Broome on the 18th day of May, 1904, upon the decision of the court rendered after a trial at the Broome Special Term dismissing the complaint upon the merits.

<p>Demurrei'—what is admitted, thereby—complaint liberally construed in favor of the pleader — liability of a corporation for negligence and for a failure to employ competent agents.</p> <p>A demurrer to a complaint admits every allegation of fact contained therein, whether such allegation be expressly or only impliedly or argumentatively averred.</p> <p>The complaint should be liberally construed in favor of the pleader, and if the allegations requisite to constitute a cause of action can be fairly gathered therefrom, it will be good as against the demurrer, even though it be indefinite; in which case the remedy is by a motion to make it more definite and certain.</p> <p>A corporation, whether a membership or stock corporation, is liable for its own acts of negligence, including the failure to perform the duty which is incumbent upon it to exercise reasonable care to employ competent and skillful agents, employees and contractors to perform its various services.</p>

Appeal by the plaintiff, the Consolidation National Bank, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 23d day of January, 1904, upon the decision of the court, rendered after a trial at the Broome Trial Term (the jury having been discharged), dismissing the complaint upon the merits.

Appeal by the defendant, the Metropolitan Street Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of April, 1904, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 14th day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Notice of claim, for personal injuries against the city of New York—it should be filed in the cospoi’ation counsel’s office — motion to a/mend the complaint, after a dismissal at the trial, with stay to allow such motion to be made — terms imposed.</p> <p>The notice, required by chapter 573 of the Laws of 1886 to be filed, before an an action to recover for personal injuries negligently inflicted may be brought against any city having fifty thousand inhabitants or over, must, in the case of the city of New York, be filed in the corporation counsel’s office.</p> <p>The complaint in such an action alleged that the notice in question was served upon the comptroller of the city of New York, but did not allege that it was filed in the office of the corporation counsel. Upon the trial the complaint was dismissed because of the absence of this allegation, but the entry of judgment was suspended in order to allow the plaintiff to move at Special Term for permission to amend his complaint by inserting such allegation. The plaintiff made the motion, which was denied, and judgment was thereupon rendered against the plaintiff.</p> <p>Held, that the plaintiff’s motion to amend the complaint should have been granted 'and that an order should be made vacating the judgment and granting leave to serve an amended complaint upon condition that the plaintiff would pay to the defendant the expense of the entry of the judgment, the costs and disbursements of the trial and ten dollars costs of the motion.</p> <p>Van Brunt, P. J., dissented.</p>

<p>Statute of Frauds — whai is an original promise by an owner of a building to pay a sub-eonto'actor for work already done and, work to be done on the building.</p> <p>Where, after the abandonment of a building contract by the principal contractor, the owner of the building makes an oral agreement with a person to whom the principal contractor had sublet the iron work required by the contract, and who, prior to the abandonment, had furnished a portion of such iron work, that, if such sub-contractor would finish such iron work, the owner would pay him for all the iron work, such promise is an original promise, founded upon a valid consideration moving to the owner, and entitles the sub-contractor to recover from the owner, not only for the work done and materials furnished subsequent to the making of the new promise, but for that which had been done and furnished prior thereto.</p>

Appeal by the defendant, the Degnon-McLean Contracting Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 18th day of March, 1904, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 28th day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendants, Josephine G. Robinson 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 Few York on the 18th day of February, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the Few York Trial Term, and also from an order entered in said clerk’s office on the 17th day of February, 1904, denying the defendants’ motion for a new trial made upon the…

Appeal by the plaintiff, Cornelia B. Page, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 26th day of February, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, ..dismissing the complaint upon the merits.

Appeal by the defendant, Robert B. Reilly, 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 10th day of February, 1904, upon the report of a referee.

Appeal by the defendant, the Central Railroad Company of New Jersey, 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 26th day of February, 1904, upon the verdict of a jury rendered by direction of the court for $656.86, and also from an order entered in said clerk’s office on the 3d day of March, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, the Crucible Steel 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 New York on the 7th day of January, 1904, upon the verdict of a jury for $12,000, and also from an order entered in said clerk’s office on the 11th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the plaintiff, Julius Oehme, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 30th day of March, 1904, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.</p>

Appeal by the defendants, The City of New York and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of New York on the 29th day of January, 1904, upon the verdict of a jury for §22,000, and also from two ordei'S entered in said clerk’s office on the 28th day of January, 1904, and 29th day of January, 1904, respectively, denying said defendants’ motions for a new trial made upon the minutes.

<p>Action by a vendor to enforce at law an executory contract for the sale of land, — measure of damages — action for specific performance — what must be alleged — the demand, for judgment is not conclusive — amendment on the trial.</p> <p>■ In an action at law brought by the vendor in a contract for the sale of real estate to recover damages for the vendee’s refusal to take title, the measure of damages is not the purchase price specified in the contract, but the difference between the actual value of the land and the purchase price.</p> <p>In such a case the vendor is not entitled to specific performance of the contract, unless she alleges and proves that she was not only ready and willing to perform the contract on her part, but that she had the ability to perform.</p> <p>The fact that a complaint in an action demands judgment for a sum of money only is not necessarily controlling against the plaintiff’s right to maintain .the action in equity, if the complaint sets out facts entitling the plaintiff to equitable relief.</p> <p>Where, near the conclusion of a jury trial, the plaintiff’s counsel makes a motion to be allowed to amend the complaint so as to present an issue not suggested in the original pleadings, and one which the defendant, according to his attorney, was not prepared to try, the court may properly deny the motion to amend, particularly where the plaintiff’s counsel refuses to adopt the court’s suggestion that he withdraw a juror and make his motion to amend at the Special Term.</p>

<p>Action on a bond given to secure the faithful performance of a contract — construction of a provision therein giving the contractor the right to use a certain piece of land — the surety is not relieved from liability because the employer, instead of paying the contractor in cash, satisfied debts due from, the contractor, nor because the employer, when reletting the work, after the contracts default, elected to do a portion of the work involved in the contract—when interest is allowable where the damages are unliquidated.</p> <p>Upon the trial of an action, it appeared that the plaintiff made a contract with the firm of Price & Garrison by which that firm agreed to furnish 9,941 cubic yards of cut granite and that the defendant became surety upon an undertaking given to the plaintiff to secure the faithful performance of the contract by Price & Garrison; that Price & Garrison furnished only 110 cubic yards of the granite and that the plaintiff, after affording the defendant an opportunity to complete the contract, solicited bids for the performance of the work; that it submitted such bids to the defendant and invited suggestions from it in regard thereto, but that the defendant declined to make any suggestions; that the plaintiff thereupon let the contract to one Foster, who was the lowest bidder, and thereafter requested the defendant to pay the difference between the amount paid to Foster and the amount which it would have had to pay to Price & Garrison had the latter performed the contract.</p> <p>The contract with Foster contained a provision that, if the plaintiff would pay certain expenses and perform certain work which Price & Garrison had agreed to do, he would deduct two dollars per cubic yard from the contract price; that the plaintiff paid the expenses and did the work at an expense exceeding two dollars a yard and obtained the rebate.</p> <p>It further appeared that the contract with Price & Garrison provided that the plaintiff should allow them for storage purposes the use of certain premises during the performance of the contract, and that Price & Garrison did not use all of such premises, although it did appear that they never had occasion to use all of the premises or any more of the premises than they did use. It also appeared that the contract provided that payments for the stone delivered by Price & Garrison under the contract should be made on the twentieth of each month for all stone accepted up to the seventh of that month; that the plaintiff did not pay Price & Garrison in cash for the stone delivered under the contract, but, at their request, paid certain bills owed by them aggregating more than the contract price of the stone delivered.</p> <p>Held, that the surety was not relieved from liability by the fact that Price & Garrison did not use all of the premises specified in the contract, as they were not entitled to use all of such premises unless it was necessary for them to do so;</p> <p>That the failure of the plaintiff to pay Price & Garrison in cash did not constitute a defense to the action, it appearing that the method of payment adopted did not operate to the injury or prejudice of the defendant;</p> <p>That the plaintiff having incurred, under the contract with Foster, an expense in excess of two dollars per cubic yard in doing work which Price & Garrison were required to do under the contract, it was entitled to have such expense considered in determining the damages which it had sustained from the breach of Price & Garrison’s contract;</p> <p>That as the defendant knew the terms of the contract with Price & Garrison • and knew, or could have ascertained, the terms of the Foster contract, and could, consequently, by a simple computation, have determined the amount to which the plaintiff was entitled at the time the latter made its demand upon the defendant, the plaintiff was entitled to interest upon the amount of the damages recovered by it, even though such damages were, in a sense, unliquidated.</p>

Appeal by the plaintiff, Pedro A. Merino, as surviving partner of Pedro N. Merino & Sons, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 25th day of November, 1903, upon the report of a referee, disallowing in full a disputed claim against the estate of the defendant’s testator.

Appeal by the plaintiff, Thomas Gleason, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 7th day of March, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.

<p>Foreign corporation — an appointment may Toe made in the State of New York of a receiver of its assets as distinguished, from, the corporation itself.</p> <p>The complaint in an action averred that the defendant was a foreign corporation, organized and existing under the laws of the State of Hew Jersey, and that the plaintiff was a stockholder thereof; that the defendant’s hoard of directors had abdicated their functions and handed over the entire control of the. corporation to Ernest C. Mueller, one oí the directors of the defendant, and that he was engaged in dissolving, liquidating, disposing of and winding up the business of the defendant without the authority of the stockholders or the directors, and in violation of the laws of the State of New Jersey and of this State; that the proceedings which had been taken in New Jersey to this end were unlawful; that its principal place of business was within this State, as were also all of its assets and books; that various persons were indebted to the defendant in various amounts; that said Mueller had unlawfully paid from the proceeds of the assets of the corporation $7,500 to the firm of Strobel, Wilkin & Co.; that the debts and liabilities of the defendant were upwards of $10,000 over and above all of its assets; that in order to preserve the property of the corporation from being unlawfully distributed and wasted it was necessary that a receiver in this State should be appointed of defendant’s property and assets. It demanded judgment for the appointment of a receiver and an injunction restraining any interference with such receiver or the property of the corporation until the final termination of the action.</p> <p>Held, that the complaint stated a cause of action of which the court had jurisdiction;</p> <p>That the courts of the State of New York have jurisdiction to appoint a receiver of the property and assets of a foreign corporation in order to preserve them from unlawful disposition and waste, although they have not jurisdiction to appoint a receiver of the foreign corporation itself.</p>

Appeal by the defendant, Michael Zachmann, 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 20th day of January, 1904, 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 20th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, the Eppens, Smith & Wiemann Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 2d day of May, 190-1, 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 28th day of April, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Oscar Hammerstein, 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 22d day of December, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by the defendant, John Lackner, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of September, 1904, enjoining the defendant during the pendency of the action “ from selling or delivering goods of his manufacture, or in any way attempting to sell, or deliver such goods to any persons, firms or corporations, other than the plaintiff, or from doing any other acts that…

Appeal by the defendants, Edward N. Tailer, sole surviving executor and trustee under the last will and testament of Thomas Suffern, deceased, and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of November, 1904, granting the plaintiff’s motion for leave to serve an amended complaint.

Appeal by the plaintiff, James Talcott, 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 8th day of July, 1904, denying the plaintiff’s motion to review the taxation and retaxation of the defendant’s costs theretofore had in the action, and for a retaxation of the defendant’s costs.

Appeal by the defendant, Charles H. Fowler, 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 30th day of July, 1904, denying the defendant’s motion to compel the plaintiffs to accept his unverified answer and to set aside any judgment that may have been entered against him in the above-entitled action.

<p>Offer of judgment and acceptance thereof— it constitutes a contract — its effect is determined by the then condition of the pleadings — the court may not depart therefrom in entering judgment.</p> <p>An offer of judgment and the acceptance thereof constitute a contract between the parties, and are to be construed and the effect thereof determined in the light of the condition of the pleadings at the time the offer is made.</p> <p>The vendee in a contract for the sale of land brought an action to compel the vendors to specifically perform the contract by conveying to him a title free from an apparent incumbrance, which was placed upon the property after the contract was made, hut of which the plaintiff had no knowledge until after the day fixed for the performance thereof. The vendors interposed an answer, alleging that the original contract had been modified from time to time, and that one of such modifications was that the plaintiff had agreed to the forfeiture of certain payments made by him on account of the purchase price, and that he had waived all objections to title and agreed to pay interest on the unpaid purchase price, he to be allowed certain rents in reduction. The plaintiff served a reply, alleging that the waiver referred to had no reference to the objection to the title mentioned in the complaint.</p> <p>Thereafter the defendants served an offer “ to allow j udgment to be taken against them in favor of plaintiff, requiring defendants to specifically perform their contract with the plaintiff referred to in the amended complaint herein, by conveying to the plaintiff a good marketable title to the premises in said contract described free from all adverse claims referred to in said complaint, together with costs.”</p> <p>The plaintiff served a written acceptance of the offer of judgment but did not act thereon. The defendants thereupon applied to the court to have judgment entered, and upon affidavits and the construction of contracts and stipulations, the court directed judgment to be entered requiring the defendants to specifically perform the contract and make a conveyance free, from incumbrances, except as stated therein, and providing that the conveyance shall be made, further, upon the plaintiff paying to the defendants the balance remaining due under the contract of $135,000 with interest at five per cent per annum from the 4th day of May, 1903, until the closing of the title; the rents of said premises to be adjusted, apportioned and allowed up to the day of closing of the title, and the purchaser to assume the risk of fire to the premises from the 4th day of May, 1903. In default of the closing of said contract by the plaintiff and the payment and adjustment of the rents and interest thereon, as therein provided, it was adjudged that plaintiff forfeit all money paid by him on account of the purchase price of said premises, the same to be and remain the property of the defendants herein and be barred and foreclosed of any and all interest in and to said premises.</p> <p>Held, that the rights of the parties under the offer were fixed by the condition of the pleadings on the day on which it was made, and that it was not permissible for the court to make further inquiry into the relations existing between the parties;</p> <p>That the court could have entered a judgment directing that the contract be specifically performed by conveying to the plaintiff a good marketable title to the premises free from all adverse claims mentioned in the complaint, together with costs, and fixing a time for the delivery of the deed and the payment of the purchase price, but that it was not competent for the court to charge the plaintiff with interest on the unpaid purchase money nor to declare a forfeiture of the payment made by the plaintiff on account of the purchase price if he failed to comply with the judgment.</p>

Appeal by the defendants, Frank A. O’Donnel and others, commissioners of taxes and assessments of the city 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 15th day of June, 1904, granting the relator’s motion for an alternative writ of mandamus.

<p>Appeal by the plaintiff, Rachel E. Oatman, 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 Hay, 1904, directing the plaintiff to furnish a bill of particulars.</p>

<p>Appeal by the St. Paul Hotel 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 29th day of September, 1904, directing the said company to surrender possession of certain mortgaged premises or to pay occupation rental to the respondent, theretofore appointed in the above-entitled action receiver of such mortgaged premises.</p> <p>This action was brought to foreclose a mortgage upon property on the southeast corner of Sixtieth street and Columbus avenue, a portion whereof is occupied by the St. Paul Hotel Company for the purposes of a hotel. Upon motion a receiver was appointed of the rents, issues and profits. The St. Paul Hotel Company holds by assignment a lease of a part of the premises, which lease was made and delivered after the execution and record of the mortgage in suit. After his appointment the receiver demanded from the hotel company rent of the premises, and upon its refusal obtained an order to show cause why the hotel company should not attorn and pay to him rent for the value of the use and occupation of the premises. The hotel company refused to pay upon the ground that, in and by the lease or agreement between it and the landlords, the latter were obligated to furnish and supply certain things needed in the rooms and agreed that the building should be completely furnished for hotel purposes not later than January 1, 1904; that the landlords failed to comply with the terms of the agreement in the lease and that by reason thereof the hotel company was unable to rent the rooms and was damaged in the sum of $20,000. These damages the hotel company insisted it had a right to offset against the landlords and against the receiver, and refused to pay to either the rent reserved under the lease or any rental for the occupation of the property. Upon the return of the order to show cause the court at Special Term granted the receiver’s motion compelling the hotel company to surrender possession unless before a day fixed it paid to the receiver an occupation rental of said premises at the rate of $2,500 per month from the day it received notice from the receiver of his appointment. From this order the hotel company appeals.</p>

Appeal by the defendant Luke A. Burke 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 22d day of September, 1904, directing the said defendant to serve upon the plaintiff a bill of particulars.

<p>Appeal by the plaintiff, William Staclcpole, as administrator, etc., of Timothy Stackpole, deceased, from a judgment of the Supreme Court iu favor of the defendant, entered in the office of the clerk of the county of New York on the 23d day of June, 1903, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term.</p>

<p>Appeal by the plaintiffs, Mary Jones, individually and as administratrix, etc., of Evan Jones, deceased, and others, from an order of the Supreme Oourt, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of April, 1904, allowing certain of the defendants to serve a supplemental answer.</p>

Appeal by the defendant, John C. Osgood, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 26th day of August, 1904, striking out certain allegations of the defendant’s amended answer as irrelevant and improper.

Appeal by the defendant, John G. Swigert, 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 21st day of September, 1904, denying the defendant’s motion to change the place of trial of the action from the county of Hew York to the county of Hiagara.

Appeal by the defendants, Thomas L. Eeitner and others, as commissioners of taxes and assessments of the city of New York, from portions of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of September, 1904, setting aside an assessment of $80,000 upon the wires and connections of the relator situated upon private property.

Appeal by the defendants, Samuel R. Lawrence and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6th day of May, 1904, upon the report of a referee, directing a partition and sale of certain real property.

<p>Appeal by the plaintiff, Florence Thayer Smith, from an order of the Supreme Court, made at the Hew Fork Special Term and entered in the office of the clerk of the county of Hew York on the 22d day of June, 1904, denying the plaintiff’s motion for leave to serve an amended and supplemental complaint.</p>

<p>Appeal by the plaintiffs, Solomon Steinfeld and another, trading under the name and style of The National Shirt Waist 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 17th day of October, 1904, denying the plaintiffs’ motion for an injunction pendente lite.</p>

Appeal by the defendant, Robert Grier Monroe, commissioner of water supply, gas and electricity of the city of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 5th day of October, 1903, granting the relator’s motion for a peremptory writ of mandamus.

<p>Appeal by the defendant, William M. Hoes, public administrator of the county of Hew York, as administrator, etc., of Frederick Domeyer, deceased, 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 8th day of July, 1904, modifying the report of a referee by striking therefrom any provisions for costs and disbursements, except disbursements for referee’s and stenographer’s fees.</p>

Appeal by the plaintiff, Henry 0. Lee, 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 September, 1904, denying the plaintiff’s motion to set aside certain stipulations, and granting the motion of the defendant A. Yan Arsdale Winans to compel the plaintiff to exhibit for inspection the contract sued on.

<p>Appeal by Cornelia Stewart Merillon, as substituted trustee under the will of Robert T. Clinch, deceased, from so much of an order of the Surrogate’s Court of the county of New York, entered in said Surrogate’s Court on the 11th day of July, 1904, as affirms an order entered in this proceeding on the 20th day of April, 1903, assessing a transfer tax upon the estate of said deceased.</p>

<p>Venue— Orange county in the summons and New York county in the complaint— what proceedings on the part of the defendant in Orange county preclude his claiming that the venue was in New York county —action to recover penalties for an unauthorized me and possession of milk cans— Code Civil Procedure, § 983.</p> <p>An action, brought pursuant to section 29 of chapter 376 of the Laws of 1896 to recover penalties for an unauthorized use and possession of milk’ cans, was commenced by the service of a copy of the summons, which stated that trial was desired in Orange county. The defendants served a notice of appearance, which did not name any county. A copy of the complaint was then served, which was entitled Supreme Court, county of New York. The day following the service of the complaint the defendants’ attorney served an affidavit and order requiring the plaintiff to give security for costs, both of which were entitled Supreme Court, Orange county. The plaintiff having failed to comply with an order requiring that security be given, a motion was made to dismiss the complaint, and the affidavit used for that purpose, as well as the notice of motion, was entitled Supreme Court, Orange county. Such motion, which was made returnable at a Special Term held in the second judicial district, resulted in an order excusing the plaintiff’s failure to serve the undertaking for costs on certain terms.</p> <p>In compliance with the order the plaintiff filed an undertaking for costs with the clerk of Orange county, and served a copy, with notice of filing, upon the defendants’ attorney, which was entitled Supreme Court, Orange county. The defendants’ attorney then served a notice of exception to the sureties upon the undertaking which was entitled Supreme Court without naming any county. The plaintiff then served a notice of justification which stated the venue as Orange county and that the sureties would justify before the county judge of that county. The sureties did so justify and the undertaking was approved and filed with the clerk of Orange county. Thereafter the defendants served an answer entitled Supreme Court without naming any county.</p> <p>Upon an appeal from an order made at the New York Special Term requiring the plaintiff to accept a notice of trial for New York county, and fixing that county as the place of trial, it was</p> <p>Held, that the rule, that where there is a difference between the summons and complaint as to the place of trial, the complaint controls, is subject to the exception that, where it appears that the statement of a different place of trial in the complaint from that named in the summons was due to the inadvertence of the plaintiff’s attorney, the place of trial is not changed to the county named in the complaint provided the plaintiff’s attorney moves promptly in the matter to correct the error, so as not to permit his adversary to presume that the change was intentional;</p> <p>That the case at bar fell within the exception to the above rule, and that it was not necessary for the plaintiff, after the steps taken by the defendants, to take any steps to correct the error which had been made by his attorney’s inadvertence in designating New York county in the complaint as the place of trial;</p> <p>That, as the statute under which the action was brought provides that the venue may be laid in the county where the owner of the milk cans resides at the time of the commencement' of the action, which in the present case was Orange county, there was no force in the suggestion that the action being for a penalty, it was necessary for the plaintiff, under section 983 of the Code of Civil Procedure, to bring it in New York county;</p> <p>That it was the duty of the defendants’ attorney, if he believed that Orange county was not the proper county for the trial of the action, to make his motion to change the venue in Orange county or in the second judicial district and not in the county of New York.</p>

Appeal by the plaintiff, Henry B. Shepard, 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 14th ■day of October, 1904, adjudging the plaintiff guilty of contempt for a failure to pay alimony, granted pendente lite, and committing him to the common jail of Hew York county until he should pay the amount remaining due and unpaid, with interest thereon, in addition to the costs,…

Appeal by the defendant Charles W. Mayer 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 2d day of April, 1904, upon the verdict of a jury rendered by direction of the court after a trial at the New York Trial Term.

Appeal by the defendant, Edward Weinacht, 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 Hay, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of Hay, 1904, denying the defendant’s motion for a new trial made upon the minutes.

Appeal by Joseph H. Hoadley 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 October, 1904, adjudging him in contempt of court for refusing to answer a certain question upon his examination as a witness in supplementary proceedings.

Appeal by the plaintiff, the Uvalde Asphalt Paving Company, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of October, 1903, upon the report of a referee dismissing the complaint upon the merits.

Application to the Appellate Division by Robert 0. Wood and others, as directors of the Few York City Interborough Railway Company, pursuant to section 59 of the Railroad Law, for an order directing the Board of Railroad Commissioners of the State of Rew York to grant a certificate that public convenience and a necessity require the construction of the railroad proposed by the applicants.

Appeal by the defendant, John S. Duss, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 31st day of May, 1904, upon the decision of the court, rendered after a trial at the Hew York Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.

Appeal by the plaintiff, The People of the State of New York, from an order of the Court of General Sessions of the Peace' in and for the county of New York, entered in the office of the clerk of said court on the 29th day of July, 1904, allowing the defendant’s demurrer to an indictment.

Appeal by the plaintiffs, Max Gluckman and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 2d day of June, 1904, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the plaintiffs’ complaint.

Appeal by the relator, Thomas Simpson, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of June, 1904, quashing and superseding a writ of certiorari theretofore issued upon the application of the relator to review assessments upon certain real property for local taxation for the year 1903.

<p>Libel—article alleging the absence of the bridegroom, when the brida attended at the place where they were to have been married—when libelous per se.</p> <p>The complaint in an action for libel averred that the defendant published an article which referred to an alleged intended marriage between the plaintiff and one Goldberg, which marriage was to have been celebrated on a certain day at a hall; it then proceeded to state that the preparations had all been made; that a rabbi was in attendance; that the plaintiff with her bridesmaids appeared, but that the bridegroom did not appear; that the tables were spread; that the orchestra began to play, and that the guests enjoyed themselves by dancing while they waited for the arrival of the bridegroom; that the plaintiff waited an hour for the bridegroom, and when told that he could not be found gave a scream and fell to the floor, and was taken home in a coach; that the guests made a rush for the tables, but that the waiters cleared them in “ double quick time; ” that the proprietor of the hall saved the provisions and declared that he lost “ twenty chickens, twenty geese and a whole lot of other stuff; ” that there was a riot there, but that the waiters were trained and saved the tables</p> <p>The complaint further alleged that the whole of the article was false, and that in consequence of its publication the plaintiff had been shunned by her acquaintances.</p> <p>Held, that the article held the plaintiff up to ridicule by making her the prominent figure in a purely fictitious narrative, and that it was libelous per se.</p> <p>Ingraham, J., dissented.</p>

Appeal by the defendant, Janet T. Malcolm, as executrix, etc., of James F. Malcolm, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 30th day of June, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendants, Robert L. Martin and another, from an order of the Court of General Sessions of the Peace in and for the county of New York, entered in the office of the clerk of said court on the 25th day of July, 1904, denying the defendants’ motion to dismiss an indictment against them for lack of prosecution.</p>

Appeal by the plain tiff, Sophie Faller, 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 22d day of July, 1904, denying the plaintiff’s motion to compel the defendant to accept service of plaintiff’s bill of particulars.

<p>Increase in the stock of a corporation — right of existing stockholders to subscribe for the same according to their respective holdings of stock.</p> <p>Where a corporation, which has increased its capital stock, receives from outside parties an offer to take all the additional stock at prices greatly in excess of the par or book value of such stock, an original stockholder of the corporation is not entitled to subscribe at par for such proportion of the additional stock as the number of his existing shares of stock bears to the number of all the shares of the corporation as originally capitalized, in the absence of a provision conferring such right, in the statutes under which the corporation is organized, in the charter of the corporation, or in the resolution authorizing the increase of the capital stock, and in the absence of any fraud or illegality in making such increase.</p> <p>Qumre, whether the right asserted by the stockholder would exist if the additional stock was to be issued at par, or if the stockholder was willing to pay therefor the price offered by the outside parties.</p>

Appeal by the plaintiff, Maria Gr. Pernetti, 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 8th day of October, 1903, denying the plaintiff’s motion to vacate and set aside a certain judgment entered in said clerk’s office on the 30th day of June, 1903, upon a forfeited recognizance, and also denying her motion to vacate the execution issued on said judgment.

<p>Appeal by the plaintiffs, Louis Bossert and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 9th day of December, 1903, upon the decision of the court, rendered after a trial at the Hew York Special Term, dismissing the complaint upon the merits.</p>

Appeal by the defendant, Shapiro, Remick & Co., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of September, 1904, denying the plaintiffs’ motion for an in junction pendente lite, but appointing a receiver.

<p>Removal of a Neio York city policeman for misconduct — when the police commissioner is not rendered incompetent to try him because of the expression of opinions as to his guilt —certiorari —practice as to securing a return and as to what may be returned — a reference to take proof is improper — when affidavits and additional proof may be received.</p> <p>The fact that the police commissioner of the city of New York, prior to the trial before him of a patrolman, charged with the offense of gambling in a saloon while on duty, discussed the case with the police captain who had preferred the charge, and stated to the accused patrolman’s counsel that his client was guilty of the charge, does not deprive the police commissioner of jurisdiction to preside at the trial of the accused patrolman.</p> <p>The fact that the petition for a writ of certiorari to review the action of the commissioner in dismissing the accused patrolman from the force after having adjudged, upon the evidence given at the trial, that he was guilty of the charges preferred against him, sets forth the conversation which took place prior to the trial, in which the police commissioner expressed to the counsel for the accused patrolman his belief in the latter’s guilt, does not, in the absence of a specific requirement to that effect in the writ, require the police commissioner in the return to the writ to set forth such conversation.</p> <p>If, in such a case, the relator deems it important that the return shall show whether the police commissioner made the statement attributed to him in the petition he should apply for an order directing the police commissioner to make a further return.</p> <p>The practice of appointing a referee to take proof as to the alleged conversation, and of requiring the police commissioner, after the referee has reported to the court that the alleged conversation actually took place, to make a further return consisting of a copy of the referee’s opinion, is illegal and unauthorized.</p> <p>Section 2139 of the Code of Civil Procedure, allowing “ either party to produce affidavits or other written proofs, relating to any alleged error of fact or any other question of fact which is essential to the jurisdiction of the body or officer to make the determination to be reviewed,” applies only where the court is satisfied that the facts cannot be made to appear by an order for a further return.</p> <p>Per Ingraham and Latjghlin, JJ.; Van Brunt, P. J., and Hatch, J., concurred in result; Patterson, J., dissented.</p>

<p>Landlord and tenant — injury to the tenant from the fall of a ceiling in an apartment — when an action therefor is not maintainable on the theory of negligence or of fraud or of a nuisance.</p> <p>The complaint in an action alleged that in January, 1899, the defendant leased to the plaintiff by parol an apartment in a building owned by Mm, representing that such apartment was in good condition and repair and that he would keep it in good and proper repair; that, relying upon said representations and agreement, the plaintiff entered upon and took possession of the premises; that the defendant, in violation of the said agreement with the plaintiff, “ negligently, knowingly and unlawfully permitted the said apartments, after said time and during all the time prior to the occurrence hereinafter referred to, to become and remain out of repair and iti an unsafe and uninhabitable condition, and especially permitted the ceiling in the kitchen of said apartments to become and remain in an unsafe condition; ” that after the plaintiff had gone into possession of the premises he frequently called the defendant’s attention to the condition of the ceiling of the kitchen, but that the defendant on said occasions represented to the plaintiff that the said ceiling was perfectly safe and could not fall; that the said representation was in all respects false and was made for the express purpose of inducing the plaintiff to remain on said premises, and the plaintiff, relying upon such representation and believing the truth thereof, remained thereon; that on the 9th day of February, 1900, over a year after the lease of the property, the plaintiff’s wife was injured by the falling of the kitchen ceiling.</p> <p>Held, that the action could not be maintained on the theory of negligence, for the reason that the demise of an apartment includes the ceilings of the rooms, and that the breach by a landlord of an agreement to repair the demised premises does not entail upon him a liability for personal injuries, sustained in consequence of his failure to perform such agreement;</p> <p>That the action could not be maintained on the theory of fraud for the reason that the complaint did not allege that the defendant knew the representation to be false when he made it;</p> <p>That the action could not be maintained on the theory that the defendant was guilty of maintaining a nuisance.</p> <p>Van Brtjnt, P. J., and Hatch, J., dissented.</p>

Appeal by the plaintiff, Christina T. Grant, from a judgment of Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 6th day of April, 1904, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s office on the 29th day of March, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, David Mayer, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of October, 1904, granting the plaintiff leave to strike the above-entitled action from the Trial Term calendar and to renotice the cause for trial at Special Term.

Appeal by the plaintiff, Francis Leuda, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 23d day of September, 1904, granting the defendants’ motion to vacate an order for the examination of one of the defendants.

Appeal by the defendants, The Right Reverend Daniel S. Tuttle, as senior bishop, and others, from a judgment of the Supreme Court in favor of the plaintiff and certain of the defendants, entered in the office of the clerk of the county of New York on the 9th day of May, 1903, upon the decision of the court, rendered after a trial at the New York Special Term, construing a portion of the will of Maria B. Mount, deceased.

Appeal by the defendant, Cora W. Durham, 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 October, 1904, denying the defendant’s motion for a final judgment upon the pleadings.

<p>Appeal by the defendants, James L. Wells and others, commissioners of taxes and assessments, composing the board of taxes and assessments of the city of New York, from an order of .the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of April, 1904, reducing the assessment of the capital stock and surplus of the relator for the purposes of taxation for the year 1903.</p>

Appeal by the defendants, Cecelia L. Slater, widow of John Slater, deceased, and another, from an order of the Supreme Court, made at the blew York Special Term and entered in the office of the clerk of the county of Hew York on the 20th day of June, 1904, granting an extra allowance to the plaintiffs and the defendant, respondent.

Appeal by the defendant, Charles N. Talbot, as assignee of Andrew J. Robinson for the benefit of creditors, from so much of a judgment of the Supreme Court, entered in the office of the clerk of the county of New York on the 4th day of March, 1904, upon the decision of the court rendered after a trial at the New York Special Term, as directs that the defendant Henry W. Miller recover of the defendant Mary A. Chisolm the sum of $2,082.14, together with costs and interest, and…

Appeal by the plaintiff, the American Transfer 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 26th day of August, 1904, directing the plaintiff to serve a hill of particulars.

Appeal by the plaintiff, Solomon L. Pakas, 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 January, 1904, upon the decision of the court, rendered after a trial at the New York Trial Term, a jury having been waived, dismissing the plaintiff’s complaint.

Appeal by the defendants, Morris Cohen and another, comprising the firm of M. Cohen & Son, 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 20th day of November, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, sustaining the plaintiff’s demurrer to the second separate defense set up in the defendants’ answer.

<p>Appeal by the defendant, the New York Dock 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 8th day of January, 1904, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 13th day of-January, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Appeal by the plaintiff, Caroline Stern, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 23d day of October, 1903, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of October, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.</p>

Certiorari issued out of the Supreme Court and attested on the 31st day of December, 1903, directed to Francis Y. Greene, as police commissioner of the police department of the city of New York, commanding him to certify and return to the office of the clerk of the county of Rings all and singular his proceedings had in relation to reducing the relator from the rank of roundsman to the grade of patrolman.

<p>Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of January, 1904, upon the verdict of a jury for $6,500, and also from an order entered in said clerk’s office on the 25th day of January, 1904, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Complaint setting up facts sufficient to sustain a recovery for personal injuries at common law and also the giving of the notice required by the Employers’ Liability Act — the plaintiff should be allowed to amend it by setting up two counts, one at common law and the other under the Employers’ Liability Act — the original complaint does not constitute an irrevocable election of remedies—the Employers’ Liability Act does not create a new cause of action.</p> <p>Where the original complaint in an action, brought by an employee against his employer to recover damages for personal injuries resulting from the alleged negligence of the employer, sets forth a good cause of action at common law, together with an allegation that the notice in writing required by the Employers’ Liability Act (Laws of 1902, chap. 600) had been served upon the defendant within the time required by the statute, it is improper for the court to deny, upon the theory that the plaintiff had made a binding election to pursue his common-law remedy, a motion made by the plaintiff for leave to serve an amended complaint setting forth in the first count thereof a cause of action at common law and in the second count thereof a cause of action upon the same state of facts under the Employers’ Liability Act.</p> <p>The practice in such a case of alleging the right of action at common law and the right of action under the statute in separate counts in the same complaint is proper, and it seems that the plaintiff cannot be compelled to elect between the two counts.</p> <p>The doctrine of an election of remedies applies only to cases where there is by law or by contract a choice between two remedies, which proceed on opposite and irreconcilable claims of right; in such a case a party electing to pursue one remedy is barred from pursuing any other.</p> <p>The Employers’ Liability Act does not give a new remedy for acts of negligence resulting from personal injuries; it merely extends the liability of employers for negligent acts of their superintendents, etc., giving in some cases a right of action which does not exist at the common law.</p>

Appeal by the plaintiff, Morris Friedman, 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 14th day of November, 1903, upon the decision of the court, rendered after a trial at the Kings County Special Term, overruling the plaintiff’s demurrer to two defenses and a partial defense set up in defendant’s answer.

Appeal by the plaintiff, The Harvard Company, from a judgment of the Municipal Court of the city of Hew .York, borough of Queens, in favor of the defendant, entered on the 10th day of June, 1904, dismissing the plaintiff’s complaint.

Appeal by John Greenough, receiver of the New York and Staten Island Electric Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Richmond on the 4th day of August, 1904, directing him to pay to Frederick Bryant the amount of two judgments in favor of said Frederick Bryant and against said receiver.

Appeal by the defendants, Charles L. Feltman and another, 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 5th day of October, 1904, overruling as frivolous the defendants’ demurrer to the plaintiff’s complaint.

Appeal by the defendants, John Tilly 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 Suffolk on the 18th day of August, 1903, upon the decision of the court rendered after a trial at the Suffolk Special Term.

Appeal by the plaintiff, Pratt Institute, 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 25th 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 amended complaint and dismissing the said complaint.

Appeal by the plaintiff, Edward B. Bishop, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 7th day of July, 1904, sustaining the defendant’s demurrer to the plaintiff’s complaint.

<p>Service of papers by mail—if by reason of a return ca/rd or insufficient postage they are not received there is no service—® deficiency of postage, paid by the attorney receiving them, does not invalidate the service.</p> <p>The test, in determining whether in a specified instance a service of legal papers by mail was sufficient, is whether or not the papers came into the hands of the attorney for the adverse party.</p> <p>If by reason of the presence of a return card on the envelope in which the papers are mailed, or if by reason of a shortage of postage the papers do not actually come into the hands of the attorney for the adverse party, there is no service, but if such causes do not in fact operate to prevent the actual receipt of the papers they become immaterial defects and do not invalidate the service.</p> <p>Thus where an attorney, after paying two cents due postage upon a package addressed to him, finds upon subsequently opening the package that it contained an answer, the service is valid.</p>

Appeal by the plaintiff, Benjamin J. Reilly, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 29th day of October, 1903, upon the verdict of a jury rendered by direction of the court after a trial at the Westchester Trial Term, and also from an order entered in said clerk’s office on the 29th day of October, 1903, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the plaintiff, Thomas H. Frees, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 14th day of December, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 11th day of January, 1904, denying the plaintiff’s motion for a new trial made upon the minutes.

Appeal by the defendant, Susie J. Clapp, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Nassau on the 30th day of September, 1903, upon the verdict of a jury.

<p>Action against a common carrier—election between a claim, that the ca/rrier received all and failed to deliver part of the goods mentioned in its bill of lading, or received less goods titan those mentioned therein — when an order denying a motion to compel it is appealable — when discretionary and not appealable.</p> <p>The assignee of two bills of lading brought an action against the railroad company issuing such bills, claiming that the railroad company did not deliver all the goods which it received and upon which it issued the bills of lading, or, if it did deliver all the goods received by it, that it improperly issued the bills of lading for a greater amount of goods than it received. In either contingency the railroad company was liable under a statute set up in the complaint. Held, that a motion made by the defendant at the Special Term, before interposing its answer, to compel the plaintiff to elect upon which theory he would proceed, was properly denied;</p> <p>That the order denying the motion to compel an election was appealable to the Appellate Division.</p> <p>Semble, that if the motion to compel an election had been made at the trial, the denial thereof would have been discretionary with the trial court, and could not be reviewed by appeal.</p>

Appeal by the defendants, Henrietta Fleischmann and others, composing the copartnership firm of and doing business under the firm name and style of Fleischmann & Go., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 29th day of October, 1903, upon the verdict of a jury for $5,000, which was reduced by stipulation to $2,500, and also from an order entered in said clerk’s office on the 29th…

<p>Appeal by the defendant, the Consumers’ Light and Power Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orange on the 13th day of November, 1903, upon the verdict of a jury for $2,000, and also from an order entered in said clerk’s office on the 19th day of November, 1903, denying the defendant’s motion for a new trial made upon the minutes.</p>

<p>Evidence — testimony of a physician, in an action to recoves• damages for a failure to properly treat a patient, that diphtheria could develop into a fatal case in a day.</p> <p>In an action brought to recover damages resulting from the death of the plaintiff’s infant daughter, which was alleged to have resulted from the negligent failure of the defendant, the physician in attendance upon the child, who had .in the first instance an attack of measles, to subsequently detect the fact that she was suffering from diphtheria, from which disease she died, the essential feature of the defendant’s defense was that the fatal attack of diphtheria did not develop until some hours after his visit to the child on the day previous to her death.</p> <p>Held, that it was improper to refuse to allow a physician sworn as an expert to answer the following question: “ In your opinion and medical experience is it possible for a child to show no symptoms of diphtheria on one day and develop a fatal case of diphtheria the next ?”</p>

Appeal by the defendant, Christopher Betjemann, as executor, etc., of John Bahrenburg, deceased, 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 November, 1903, upon the decision of the court rendered after a trial at the Kings County Special Term.

<p>Installment payable under a separation agreement — the right to enforce it is not affected by a change in the husband’s financial condition — not' by an order for alimony in an action for divorce.</p> <p>In an action brought by the trustee named in a separation agreement to recover an installment which, by the terms of the agreement, the husband agreed to pay the trustee for the benefit of his wife, the fact that since the execution of the agreement there has been a material change for the worse in the financial condition of the husband does not constitute a defense to the action.</p> <p>A separation agreement for the payment of certain money by a husband for the support of the wife, held to be an effective contract, which is not affected by an order directing the payment of alimony obtained in a suit for divorce brought by the wife against her husband.</p>

<p>Certiorari issued out of the Supreme Court and attested on the 13th day of June, 1903, directed to W. D. Van Brunt, president, and Henry H. Post and Charles R. Fitz, trustees, constituting the Board of Trustees of Southampton, requiring them to certify and return to the office of the clerk of the county of Suffolk all and singular their proceedings had in relation to the widening of a certain highway.</p>

Appeal by the defendant, The Reflex Camera Company, from an order of the City Court of Yonkers, entered in the office of the clerk of said court on the 30th day of June, 1904, denying the defendant’s motion to resettle an order theretofore entered in said clerk’s office disapproving an undertaking on appeal.

<p>Action to compel payment under an execution by a third, person of the amount of his indebtedness to the judgment debtor — in what court it may be brought—it is not an action to foreclose a lien upon a chattel — a lien defined.</p> <p>An action brought under section 1391 of the Code of Civil Procedure, as amended by chapter 461 of the Laws of 1903, against a person indebted to a judgment debtor, because of the failure of such person to satisfy an execution issued under the said section to the extent of his obligation to the judgment debtor, is to be regarded as an action upon the judgment, and, hence, if the judgment was recovered in the Supreme Court the Municipal Court of the city of New York has not jurisdiction thereof.</p> <p>Such an action is not one to foreclose a lien upon a chattel, within the meaning of subdivision 10 of section 1 of the Municipal Court Act.</p> <p>A lien defined.</p>

Appeal by the defendant, Mary Augusta Mott, 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 28th day of January, 1904, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 28th day of January, 1904, denying the said defendant’s motion for a new trial made upon the minutes.

<p>Appeal by the defendant, The New York, New Haven and Hartford Railroad Company, from an order of the Supreme Court, made at the Westchester Trial Term and entered in the office of the clerk of the county of Westchester on the 23d day of October, 1903, denying the defendant’s motion to set aside the verdict of a jury in favor of the plaintiff and for a new trial of the action.</p>

<p>Appeal by Lavinia A. Burden and another 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 Queens on the 21st day of May, 1903, confirming the report of commissioners of estimate appointed in the above-entitled proceeding.</p>

Appeal by the defendants, The Seamen’s Bank for Savings 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 Kings on the 18th day of January, 1904, upon the decision of the court rendered after a trial at the Kings County Special Term. This action was originally brought by the plaintiff against William li.

<p>Appeal by the defendant, The City of New York, as successor to the city of Long Island City, 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 28th 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 5th day of February, 1904, denying the defendant’s motion for a new trial made upoh the minutes.</p> <p>On December 31, 1891, a contract was entered into between the city of Long Island City and the Long Island City Electric Illuminating Company by which the said company agreed to provide, erect and maintain for the period of five years lamps to the number necessary to light with electricity certain streets and avenues in said city, which are named in said contract. The light furnished by each lamp was to be equal to 1,800 candle power by the ordinary test, the lamps to be lighted every night from sunset to sunrise. The contract also provided that in case for any reason any of such lamps were not lighted and lights were not furnished during any of the times provided or during the hours provided for, a rebate pro rata according to the time they were not so lighted should be made from the amount to be paid under the contract, and that in case the light furnished is not equal to the candle power provided for a rebate pro rata according to the deficiency in candle power should be made.</p> <p>The plaintiff, the assignee of the company, claims that under this contract the company furnished the necessary lamps and necessary appliances and lighted the same during the period covered by the contract.</p> <p>No money has been paid to the company or to the assignee under this contract, and for the amount claimed to be due thereunder this action is brought.</p>

<p>Appeal by the defendant, The Interurban Street Railway Company, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 25th day of January, 1904, vacating and setting aside the verdict of a jury in favor of the defendant and granting a new trial of the action on the ground of the misconduct of a juror.</p>

Appeal by Catherine Cuffe, as executrix, etc., of Emma A. De Rycke, deceased, and others, from a decree of the Surrogate’s Court of the county of Kings, entered in said Surrogate’s Court on the 9th day of November, 1903, admitting to probate the last will and testament of the said Emma A. De Rycke, deceased.

Appeal by the plaintiff, Mary E. Sherlock, from a judgment of the Supreme Court in favor of the defendant, Lewis E. Rushmore, entered in the office of the clerk of the county of Kings on the Ytli day of December, 1903, upon the dismissal of the complaint by direction of the court as to said defendant after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 23d day of November, 1903, setting aside a special verdict rendered by…

Appeal by the defendant, James 0.' Fargo, as president of the American Express Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 18th day of February, 1904, upon the verdict of a jury for $7,500, 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, and also from an order entered in…

Appeal by the defendant, the Erie Railroad Company, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Orange on the 30th day of August, 1904, denying the defendant’s motion for an order striking out the amended complaint or compelling plaintiff to elect which of two causes of action alleged in the complaint she would rely upon.

Appeal in the first above-entitled action by the defendants, the International Stereotypers and Electrotypers’ Union, an unincorporated association, of which James J. Freel is president, and others, from an order of the Supreme Court, made at the Kings County Special Term, entered in the office of the clerk of the county of Kings on the 30th day of January, 1904, continuing and making permanent as to the defendants, other than the defendant printing company, a preliminary…